FEDERAL COURT OF AUSTRALIA

Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248

ADMINISTRATIVE LAW – Statutory discretion – appeal from decision of Administrative Appeals Tribunal – decision not to grant permit to applicant to fish skipjack tuna – whether Tribunal erred in law by failing to consider relevant considerations in reaching its decision – whether “prevailing circumstances” were relevant considerations – whether Tribunal erred in law by failing to refer to all the evidence in the reasons for decision – whether such failure is a failure to consider such evidence – extensive evidence adduced – unreasonable to expect Tribunal to refer to all of the evidence where Tribunal states it had considered the whole of the evidence.

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Fisheries Management Act 1991 (Cth) ss 3, 4, 16, 17, 32, 165

Fisheries Administration Act 1991 (Cth) ss 3, 5, 6, 72, 77

National Environment Protection Council Act 1994 (Cth) schedule 1, cl 3.5.1

Bannister Quest Pty Ltd v AFMA (1997) 77 FCR 503 referred to

Re Drake and Minister for Immigration & Ethnic Affairs (No.2) (1979) 2 ALD 634 cited

Skoljarev v AFMA (1995) 22 AAR 331 referred to

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 cited

AFMA v Adams (1995) 61 FCR 314 referred to

Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409 cited

Deloitte Touche Tohmatsu v Australian Securities Commission (1996) 136 ALR 453 cited

Latitude Fisheries Pty Ltd v AFMA [2002] FCA 416 cited

AJKA PTY LTD v AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY

S 47 of 2001

MANSFIELD J

26 MARCH 2003

ADELAIDE

THE COURT ORDERS THAT:

1.         The application is dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

introduction

1                     This is an application by way of appeal from a decision of the Administrative Appeals Tribunal (the Tribunal) pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).  The Tribunal affirmed a decision of the respondent (AFMA) refusing to grant the applicant (Ajka) fishing permits for which it had applied under the Fisheries Management Act 1991 (Cth) (the FM Act).

2                     AFMA is an authority established under s 5 of the Fisheries Administration Act 1991 (Cth) (the FA Act).  Its functions include the devising of management regimes in relation to Australian fisheries in the Australian fishing zone (the AFZ) and the granting of fishing permits and statutory fishing rights pursuant to the FM Act.  The AFZ is defined in s 4 of the FM Act.  The AFZ zone is divided into fisheries, including the Eastern Tuna Billfish Fishery (ETBF) and the Southern and Western Tuna Billfish Fisheries (S/WTBF). 

3                     The applicant operates the 35 m fishing vessel Independence.  On 18 February 1998 and 12 March 1998 the applicant made applications pursuant to s 32 of the FM Act to undertake skipjack tuna fishing from that vessel by the purse seine method in the ETBF and the S/WTBF respectively.  The purse seine method is a method of net fishing with the capacity to take very large tonnages of fish.  AFMA refused each of those applications on 5 March 1998 and 1 April 1998 respectively.  Ajka sought internal review of each of those decisions under s 165(2) of the FM Act.  On 3 August 1998, a delegate of AFMA affirmed each of the decisions of 5 March 1998 and 1 April 1998.

4                     Ajka then sought review of the decisions pursuant to s 165(7) of the FM Act.  The Tribunal’s decision was given on 30 March 2001.  It affirmed the decision of 3 August 1998 refusing to grant Ajka the fishing permits for which it had applied.

5                     The evidence about skipjack tuna was in many respects uncontentious.  It is a migratory fish.  It is one of six tuna and tuna-like fish taken in the AFZ.  Apart from the southern bluefin tuna, the other five species are thought to comprise separate Indian Ocean and Pacific Ocean stocks.  The separate stocks are regarded as coming within separate fisheries:  the ETBF for the Pacific Ocean stocks, and the S/WTBF for the Indian Ocean stocks.  Skipjack tuna is of relatively low value compared to other tuna fish, and most are used for processing in domestic canneries, in particular at the Port Lincoln Tuna Processors cannery (the Port Lincoln cannery).  The “principal director” of Ajka (as he was described) is Lovre Gobin (Mr Gobin).  He is also a director of the Port Lincoln cannery.  If the applications for fishing permits are granted, the amount of skipjack tuna imported for processing at the Port Lincoln cannery is likely to be reduced by the amount of skipjack tuna caught by Ajka in the two fisheries.

6                     Ajka has been involved in the tuna fishing industry for many years.  It has a quota to catch southern bluefin tuna, and other fishing permits.  The Independence was acquired in 1996, but is used to catch the southern blue fin tuna quota only for about two months each year, or perhaps even over a shorter period.  Part of the reason for Ajka seeking fishing permits for the ETBF and the S/WTBF is to utilise the vessel for a greater part of each year.

STATUTORY FRAMEWORK

7                     Section 3 of the FM Act sets out objectives to be pursued in the performance of functions under the FM Act.  It provides:

“(1)  The following objectives must be pursued by the Minister in the administration of this Act and by AFMA in the performance of its functions:

(a)       implementing efficient and cost-effective fisheries management on behalf of the Commonwealth; and

(b)       ensuring that the exploitation of fisheries resources and the carrying on of any related activities are conducted in a manner consistent with the principles of ecologically sustainable development and the exercise of the precautionary principle, in particular the need to have regard to the impact of fishing activities on non-target species and the long term sustainability of the marine environment; and

(c)        maximising economic efficiency in the exploitation of fisheries resources; and

(d)       ensuring accountability to the fishing industry and to the Australian community in AFMA’s management of fisheries resources; and

(e)        achieving government targets in relation to the recovery of the costs of AFMA.

(2)       In addition to the objectives mentioned in subsection (1), or in section 78 of this Act, the Minister, AFMA and Joint Authorities are to have regard to the objectives of:

(a)              ensuring, through proper conservation and management measures, that the living resources of the AFZ are not endangered by over-exploitation; and

(b)       achieving the optimum utilisation of the living resources of the AFZ;

but must ensure, as far as practicable, that measures adopted in pursuit of those objectives must not be inconsistent with the preservation, conservation and protection of all species of whales.”

8                     Part 3 of the FM Act deals with the regulation of fishing.  Section 16(1) provides that, in performing its functions under Part 3, AFMA must pursue its objectives and, in addition, must act in accordance with its corporate plan and its current annual operation plan.  Section 16(2) recognises that, while a plan of management is in force for a fishery, AFMA must perform its functions, and exercise its powers under the Act in relation to a fishery in accordance with that plan of management as directed by s 17(10).

9                     Division 2 of Part 3 of the FM Act then provides for plans of management.  AFMA is empowered to determine plans of management for all fisheries, and procedures are prescribed for it to do so.  The prescribed procedure includes the preparation and publication of a draft plan of management for a fishery, so that interested persons may make representations with respect to it.  Ultimately, the determination of a plan of management for a fishery must set out the objectives of the plan of management, the measures by which the objectives are to be attained, and performance criteria against which the measures taken may be assessed.

10                  AFMA had taken some steps towards determining a plan of management for the ETBF and the S/WTBF at times relevant to this action, but it had not got to the point of publishing a draft plan of management for either fishery. It had decided, as part of its process of determining plans of management of each of the fisheries, to maintain what it described as a “limited access policy”.  The policy provided that no further fishing permits would be issued with respect to either fishery unless cogent reasons were shown to exist to grant a further fishing permit or permits.  AFMA’s refusal to grant the fishing permits sought by Ajka was expressed in each instance to be in pursuance of the policy, as it was not satisfied that cogent reasons were established to depart from it.

11                  The limited access policy was initially formulated in respect of the areas which became the ETBF and the S/WTBF by the Australian Fisheries Service before the commencement of the FM Act.  It is a commonly accepted “first step” in the management of a fishery resource.  In August 1988, the Minister for Primary Industries and Energy warned that some such policy might be introduced.  After considering the circumstances of those already fishing in the areas which became the ETBF and the S/WTBF, the policy was formally introduced in respect of those fisheries by 1994.  It was introduced as part of the process of developing a management plan for each of those fisheries.

12                  Section 32 of the FM Act provides for the grant of fishing permits by AFMA.  A fishing permit may be issued in a specified fishery, and in respect of a specified vessel, and may be issued subject to other conditions including as to the nature and quantity of fish that may be taken, the rate at which fish may be taken, and the methods or equipment that may be used to take fish:  s 32(7).  Fishing permits are generally transferable:  s 32(10).  As noted above, the applications for fishing permits by Ajka were to take fish by the purse seine method.

13                  It is necessary to refer only briefly to the Fisheries Administration Act 1991 (Cth) (the FA Act).  It establishes AFMA with functions and responsibilities relating to the management of fisheries on behalf of the Commonwealth.  It also establishes a Fishing Industry Policy Council with a view to ensuring the participation of interested persons in the formulation of government policy in respect of the management of fisheries: see s 3.  Section 6 of the FA Act sets out the objectives of AFMA.   Relevantly, ss 6(a), (b) and (c) of the FA Act are expressed in terms identical to ss 3(1)(a), (b) and (c) of the FM Act.  Its functions include devising management regimes in relation to Australian fisheries, and to perform the functions relating to plans of management under the FM Act, to establish and allocate fishing rights under the FM Act, and to perform such other functions as are conferred on it, inter alia, under the FM Act.

14                  AFMA is required to give to the Minister a corporate plan setting out its principal goals and strategies in each year.  It must also give to the Minister an annual operational plan in each year explaining how it intends to further the goals in its corporate plan, and indicating whether it proposed to determine a plan of management with respect to any particular fishery during the year to which the annual operational plan relates:  ss 72 and 77 of the FA Act.

THE TRIBUNAL'S REASONS

15                  The Tribunal correctly recognised that it was standing in the shoes of AFMA in deciding whether it should grant permits to Ajka under s 32 of the FM Act entitling it to take skipjack tuna by the purse seine method in the ETBF and in the S/WBTF.  It also recognised that, in reaching its decision, it needed to address whether the existing “limited-access policy” of AFMA is lawful, and if so, whether in the circumstances there were cogent reasons for departing from it.  It also indicated that, if AFMA’s “limited-access policy” is not lawful, the Tribunal should independently consider whether to grant the permits sought under s 32(1) of the FM Act.

16                  Counsel for Ajka did not complain that the Tribunal addressed the wrong questions.  Its contentions were twofold:

(1)                    that AFMA’s “limited-access policy” is unlawful, and

(2)                    if the policy is lawful, there are cogent reasons for not applying the policy to Ajka in the particular circumstances.

17                  The Tribunal recited at some length the evidence adduced on its hearing.  It included oral evidence from Mr Gobin, and Andrew Presser (Mr Presser), a consultant in resource economies and management and previously the principal fisheries manager in the South Australian Department of Primary Industries and Resources, on behalf of Ajka.  Oral evidence was advanced by AFMA through Mary Lack (Ms Lack), fisheries manager of AFMA; Peter Neave (Mr Neave), senior fisheries management officer of AFMA and before its establishment employed for many years by its predecessor Australian Fishing Service; Julian Morison (Dr Morison), agricultural and resource economist; and Peter Young (Dr Young), marine science and fisheries consultant.  There was also substantial documentary evidence before the Tribunal.  At this point it is not necessary to refer in detail to the Tribunal’s recital of the evidence.

18                  The Tribunal then recorded the respective submissions of Ajka and of AFMA.  The submissions on behalf of Ajka appear to be reflected in large measure in the submissions on this application, although of course refined somewhat in an endeavour to bring Ajka’s present contentions within s 44 of the AAT Act, that is as demonstrating errors of law on the part of the Tribunal.  Counsel for Ajka urged the Tribunal to find that AFMA’s “limited-access policy” is unlawful because there are no valid substantial reasons to adopt such a policy, and that in any event there are cogent reasons for departing from such a policy in relation to Ajka’s two applications for fishing permits.  Part of the contentions of Ajka concerned the states of the ETBF and of the S/WTBF.  Counsel for Ajka submitted to the Tribunal that in each of those fisheries skipjack tuna is an abundant resource which is not endangered, and is in fact under-utilised.  In the light of the evidence that all but four or so of the existing fishing permit holders in both the fisheries do not exercise the fishing rights granted by their several fishing permits, it was argued that the objectives specified in s 3(1)(c) and s 3(2)(b) of the FM Act supported the grant of the fishing permits sought by Ajka.

19                  Under the heading “The tribunal’s findings, reasons and decision”, the Tribunal first indicated that it had considered the whole of the evidence, the submissions, and the authorities to which it had been referred.  After referring to various provisions of the FM Act and of the FA Act, it described the approach to its task in the following way at [76] and [77]:

“The granting of permits pursuant to s 32 of the [FM Act] of the nature sought by the applicant clearly constitutes a function of the respondent with respect to the [FM Act] and the FA Act.  In its deliberations the tribunal is mindful of the fact that the objectives in s 3(1) of [the FM Act] and s 6 of the FA Act must be pursued as required by those sections and by s 16(1) , whereas the tribunal has to have regard to those of s 3(2) of the [FM Act].  The tribunal is also mindful that in the shoes of the respondent in the performance of its functions (under Pt 3 of the [FM Act] regarding the regulation of fishing) it must, under s 16(1) of the [FM Act], act in accordance with [AFMA’s corporate plan and its current annual operational plan].

The tribunal agrees with the respondent’s submission that while the objectives in s 3(1) and those of s 6 of the FA Act must be pursued, it does not require them to be achieved.  The language of these sections indicates that that is so, as it must be bearing in mind that there may be, from time to time factual situations in a particular fishery which will not permit, at a particular point in time, the actual achievement of one or more of the relevant objectives.  The tribunal is also mindful that in the making of a particular decision, varying degrees of weight and emphasis may be given to a particular objective and that there will be decisions made by the respondent from time to time (and by this tribunal in the shoes of the respondent on review), where one or more of the statutory objectives are irrelevant because of the nature of the particular decision:  Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 39 ALD 481;  134 ALR 51; at 71.”

20                  The Tribunal recognised that the “limited-access policy” of AFMA was called by Ajka the “no new permits policy”, and that the policy in place at the relevant times was that no more permits were to be issued for the taking of skipjack tuna by the purse seine method unless cogent reasons were established to justify the grant of a further permit or permits, following the closure of the ETBF and the S/WTBF.  It stressed that the semantic description of the policy would not divert it from properly considering its substantive effect, and its validity.

21                  In Bannister Quest Pty Ltd v AFMA (1997) 77 FCR 503 (Bannister Quest), Drummond J referred to the proper construction of ss 3(1) and (2) of the FM Act.  His Honour said at 513:

“Little assistance is provided by either the FM Act or the FA Act in illuminating the proper construction of the statutory objectives.  The imperative nature of the obligation cast on AFMA by s 3(1) of the FM Act is emphasised by the contrast between the language of s 3(1) and (2):  the former states that the five objectives listed in the subsection “must be pursued” by AFMA in the performance of its functions, while the latter subsection provides only that: “in addition to the objectives mentioned in subsection (1) … AFMA … [is] to have regard to” the two additional objectives set out in that subsection, that is, it must take them into account in performing its functions but is not bound to seek to achieve them.”

22                  The Tribunal then quoted at length a passage from the reasons for judgment of Drummond J in Bannister Quest at 525 dealing in particular with s 3(1)(b) of the FM Act.  As the passage explains a section of the Tribunal’s reasons which was the subject of some focus in the course of submissions in this application, I think it is useful to record the passage quoted by the Tribunal.  It is as follows:

“What the legislature sought to achieve by charging AFMA with the duty to pursue this particular objective emerges quite clearly from the Minister’s Second Reading Speech and the “New Directions” policy statement.  I have set out above a portion of the Minister’s speech in which he stated that the legislation would give effect “to the three objectives of fisheries management identified in the policy statement”, the first of which was:

—                   to ensure that fisheries resources are not over-exploited and that any exploitation is at a level which can be sustained while maintaining the surrounding environment.

As I have also mentioned, the “New Directions” policy statement identifies the first of the three “overriding objectives” to which it refers as: “To ensure the conservation of fisheries resources and the environment which sustains those resources.”

The Minister’s paraphrase of this objective reflects its limited scope.  The concern is limited to ensuring the biological sustainability of fish stocks and the preservation of the marine environment upon which those fish stocks depend.  The Minister made the following further comment on the first objective:

              “The first of these objectives concerns the conservation of the resource, and more generally, the conservation of the marine environment.  The Government regards the protection of fisheries from over-exploration as a matter of the utmost importance … Put simply, the Government believes it has a duty to the community to ensure that the nation’s resources are protected and preserved so that future generations can continue to benefit from them.”

A reading of the policy statement shows that statutory objective 3(1)(b) is confined to achieving these same limited aims.  See, for example, the references in the Summary to the objectives being concerned with creating a stable biological environment, to the first of the three objectives being to “sustain fish stocks”, to it being imperative “that the Government ensures the sustainability of existing and developing fisheries”, to references to the first objective being “the biological” objective and to the following statement (Summary, pxiii):

            “Environmental protection

            The marine environment is a valuable resource and the Government fully accepts its responsibility to conserve and protect that environment.

A good part of the protection of the environment will be achieved if the management objectives outlined in this statement are achieved.  These objectives will ensure biological sustainability of the resource.”

In the body of the policy statement, there are many similar references.  For example, in the section dealing with “Fundamental Principles of Fisheries Management”, the first of the “key principles and management methods” summarised is (p 15):

            “Fisheries are renewable biological resources which, if properly managed, can provide a continuing flow of product and income for an indefinite period.

            An understanding of the size, distribution and population dynamics of the species exploited is essential for effective management of any fishery”.

The statement goes on (p 16):

            “Worldwide experience has demonstrated that unregulated fishing generally results in two problems:

—                        over-fishing, which reduces future fish production and which, if allowed to continue, reduces fish stocks to levels from which recovery is not possible; and

—                        over-capitalisation (significantly more capital and labour employed in harvesting fish stocks than are needed to do so efficiently), which wastes valuable resources.

The problems occur because of the lack of appropriate property rights to fisheries resources.  This leads to economically inefficient exploitation.  Unless action is taken, fisheries invariably become over-capitalised and, with increasing frequency, are biologically over-exploited.

To secure the long term viability of commercial fisheries management controls are needed.  The objectives of these controls should be:

—                        to ensure the biological sustainability of the resource – that is, to ensure that current exploitation of the resource and human activities affecting the environment which sustains the resource do not endanger the future productivity of the resource;

—                        to maximise economic efficiency in the exploitation of the resource; and

—                        to ensure that the community receives an appropriate return from individual fishermen exploiting a community resource for private gain.”

In the section of the statement dealing with “Fisheries and the Environment”, in the summary headed “key interactions”, the first element is:  “Fisheries are part of a complex marine ecosystem and the Government recognises its responsibilities for conserving and protecting the marine environment”.

Section 3(1)(b), on its true construction, requires AFMA, in pursuing this objective in the performance of its functions, to limit its consideration to matters that relate to two things, ensuring the biological sustainability of fish stocks and ensuring the protection of the marine environment upon which those fish resources depend.”

23                  Following its reference to that passage, the Tribunal indicated its approach in the following terms:

“It goes without saying that the pursuit of the s 3(1)(b) objective is, as termed above by the minister, of the utmost importance.  Ensuring the biological sustainability of fish stocks and ensuring the protection of the marine environment upon which those fish resources depend is, in the opinion of the tribunal, paramount.

The question in these proceedings arises as to whether the refusal pursuant to s 32 of the Act of any further permits to take skipjack tuna in the subject fisheries by the purse seine method, unless cogent reasons exist, is pursuing the objective of ensuring the biological sustainability of the fish stocks in those fisheries or any of them.”

24                  To determine whether the AFMA policy properly considered the biological sustainability of the fish stocks in the ETBF and the S/WTBF fisheries, the Tribunal had to consider which of the evidence it accepted.  It found Dr Young’s evidence to be the most satisfactory.  It accepted his evidence in preference to that of other witnesses.  It is convenient to set out the Tribunal’s reasons which summarises the evidence of Dr Young, which it accepted.  It forms the factual background to the present application, at least to the extent that Ajka does not seek to upset the findings as involving some error of law.  The Tribunal found:

“(1)     The scientific information relating to the biological characteristic of skipjack tuna stocks in each of the respective fisheries is uncertain.

(2)       The capacity to place limits on the number of permits to fish in specified fisheries is perhaps the most fundamental measure in the capacity of fisheries managers (such as the respondent) to restrict fishing effort and thereby produce economically and biologically optimum results from the fishery and to prevent overfishing.

(3)       The subject fisheries are developing fisheries which present a difficult challenge to the respondent which has little or no knowledge of the size of skipjack tuna stocks or their productivity, nor, with any exactitude, the catching capacity of individual boats permitted to operate in the fisheries.  This situation is exacerbated when the catching method is by means of the extraordinarily efficient purse seine net where boats can target schools of fish, and have the capacity of catching almost entire schools of fish at the  one time.

(4)       In relation to the fisheries, the subject of these proceedings, the respondent decided to allow a set of fishing operators to be permitted to fish, however, because of the existence of past fishing, the number of boats to be allowed was decided by historical accident (the number of licences with a fishing history) and this would not be the preferred way of determining the number of initial permits in a new or developing fishery that had no history of prior fishing.  In total, 32 permits were issued for the subject fisheries.

(5)               There are a number of scientific uncertainties in the fisheries, namely:

(a)       Skipjack tuna have a circum-equatorial distribution with populations in both the Indian and Pacific oceans.  The extent to which these tuna (which come to be in the subject fisheries) are isolated from other regional populations of the same species and the degree of isolation between these populations is not known for either the Indian or Pacific Ocean.  If there is a degree of isolation then a sharp increase in fishing effort on the stocks in the subject fisheries could cause local depletions.

(b)        The current level of exploitation of the skipjack tuna populations in the respective fisheries is not known.  Catch rates are known for these fisheries but what proportion this represents of the standing stocks is unclear.  Although catch figures from other nations appear to be available, the lack of knowledge about stock mixing prevents estimation of catch as a proportion of available stock.

(c)        The fishing mortality produced by the current level of fishing in the subject fisheries is unknown, as is the increased level that might be expected if all fishing permits were fully activated and the stock/recruitment relationships for skipjack tuna are also unknown.

(d)        Developing fisheries such as the fisheries in question need an information system that enables the respondent to assess the condition of the skipjack tuna stocks even in the absence of sophisticated analysis.  Such a system at present does not exist.

(6)       In the absence of more detailed management arrangements being actually in place in the subject fisheries, the restriction on the number of permits to take skipjack tuna by the purse seine method represents the only restraint on an increase in the numbers of fish taken and hence an impediment to increasing the risk of unsustainable development of the fish stocks, bearing in mind that risk cannot be denied if the necessary meaningful scientific knowledge as to the status of the stock is absent.  Similarly, this restraint must also be viewed in the context of the number of permit holders already in existence whose maximum potential regarding fishing effort is unknown.”

The Tribunal concluded that extending the number of permits, at the present stage of knowledge of each of the fisheries, may run counter to ensuring the biological sustainability of skipjack tuna fish stocks in the two fisheries.  Consequently, it concluded that AFMA’s limited access policy, ie the non-issuing of extra permits unless for cogent reasons, does pursue the objective in s 3(1)(b) of the FM Act, and, reiterated in s 6(b) of the FA Act, of ensuring that the exploitation of the fisheries’ resources and the carrying on of any related activities are conducted in a manner consistent with the principles of ecologically sustainable development.

25                  It then addressed whether the other element in s 3(1)(b) of the FM Act and in s 6(b) of the FA Act, namely of ensuring the exploitation of the ETBF and of the S/WTBF was conducted in accordance with the exercise of the precautionary principle, was satisfied by AFMA’s policy.  Section 4 of the FM Act defines the “precautionary principle” by reference to its meaning in cl 3.5.1 of the Intergovernmental Agreement on the Environment, an instrument a copy of which is a schedule to the National Environment Protection Council Act 1994 (Cth).  It is there defined as being:

“Where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.  In the application of the precautionary principle, public and private decisions should be guided by:

(i)                 careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment; and

(ii)               an assessment of the risk-weighted consequences of various options.”

The Tribunal did not find threats of serious or irreversible environmental damage in permitting purse seine fishing or further purse seine fishing in either the ETBF or the S/WTBF exist.  On the basis of Dr Young’s evidence, it found that the state of the fish stocks in each fishery remains uncertain, so there is “a risk of serious environmental damage” by permitting further purse seine fishing in either fishery, and the decision not to grant the permits sought by Ajka is a step which pursues the objective of the precautionary principle or, at the least, is consistent with pursuing the objective.

26                  Consequently, the Tribunal concluded that AFMA’s “limited-access policy”, and its application by refusing the fishing permits sought by Ajka was in pursuance of the objective specified in s 3(1)(b) of the FM Act and s 6(b) of the FA Act, and was a lawful pursuance of the objective.  I understand the reference to lawfulness in the context as a reference to there being sound evidence, which the Tribunal accepted, supporting a factual basis for pursuing the objective by adopting the policy and applying it to the applications for fishing permits by Ajka.

27                  The Tribunal dealt relatively briefly with the other objectives in s 3 of the FM Act.  It pointed out there may be, from time to time, circumstances by reason of which one or more of the other objectives may be irrelevant.  As all the relevant circumstances of the two fisheries are not well known, and they are developing fisheries where the relevant knowledge is not in place, it regarded the pursuit of the s 3(1)(b) objectives as “paramount” and to transcend the pursuit of the other objectives.  It said:

“Whatever relevance the refusal to grant the permits sought by the applicant may have to the pursuit of the other objectives, the ss 3(1)(b) and 6(b) objectives must, of necessity, outweigh the others, or any of them.  It cannot in any event be said on the evidence before the tribunal that the pursuit of the s 3(1)(b) and companion s 6 objectives has been shown to be inconsistent with pursuing any of the other objectives and it cannot be said that in refusing to issue the subject permits which does pursue the s 3(1)(b) and 6(b) objectives, that that course of action does not have regard to the objectives in s 3(2) of the Act.  It clearly does and the tribunal so finds.”

28                  The Tribunal was therefore satisfied that, having regard to all the objectives dictated by s 3(1) of the FM Act, the “limited-access policy” of AFMA was legal.  It also found that, in arriving at the policy, AFMA had also considered the objectives specified in s 3(2) of the FM Act, and (by implication) its policy was not inconsistent with those objectives.

29                  It then addressed the requirement imposed by s 16(1) of the FM Act upon AFMA, and on review the Tribunal, in relation to AFMA’s corporate plan and its current operational plan.  It was satisfied that it was in accordance with each of those documents to refuse to grant to Ajka the fishing permits which it sought.

30                  Finally, the Tribunal considered whether there were, in its view, cogent reasons for granting to Ajka the fishing permits, for which it had applied, in the particular circumstances of the case.  It reached the firm view that no cogent reasons which would enable a favourable exercise of the power in s 32 of the FM Act existed.  It said:

“The reason for being of this opinion is simply that to do so would fly in the face of pursuing the ss 3(1)(b) and 6(b) objectives and would not have regard to the s 3(2) objectives nor comply with s 16(1) of the Act.  To grant the additional permits sought, or any of them, would be tantamount to equating the cogent reasons proffered by the applicant to a pursuit of the ss 3(1)(b) and 6(b) objectives and to having regard to the s 3(2) objectives.  This cannot be so for the reasons already given.  The tribunal's considered opinion is that cogent reasons cannot prevail over the pursuit of the s 3(1)(b) and companion s 6(b) objectives in circumstances where they are paramount.  It would be quite unlawful in the opinion of the tribunal.”

31                  Accordingly, the Tribunal affirmed the decision under review.

consideration of the grounds of appeal

32                  Counsel for Ajka first contended that the “limited-access policy” of AFMA is unlawful.  To determine its lawfulness, the submission ran, it is necessary to identify the factual context in which the policy came to be adopted and maintained. There were 14 facts or composite facts which, Ajka argued, needed to be addressed by the Tribunal before it could determine the lawfulness of the policy, and it did not address 12 of them.  It was also submitted, in light of the 14 facts or composite facts (or “prevailing circumstances” as they were called in submissions), the grant of further fishing permits in respect of either the ETBF or the S/WTBF could not offend the objectives in ss 3(1) and (2) of the FM Act.  Nor could such a grant offend any policy which was consistent with those objectives.  The applicant extended that submission, so that the decisions to refuse to grant Ajka the fishing permits for which it had applied offended the objectives in ss 3(1)(c) and 3 (2)(b) of the FM Act.  Hence, the policy which justified such refusal is itself unlawful.

33                  Counsel for Ajka accepted that it was a proper starting point for the Tribunal, standing in the shoes of AFMA and making the correct and preferable decision on the basis of the material before it, to consider the lawfulness of AFMA’s limited access policy.  The acknowledgment that the making of a policy by AFMA to guide the exercise of its discretionary decision-making, and on review that of the Tribunal, is appropriate:  Re Drake and Minister for Immigration & Ethnic Affairs (No.2) (1979)2 ALD 634 at 639; Skoljarev v AFMA (1995) 22 AAR 331 at 336, affirmed on appeal (1996) 41 ALD 481.  At first instance, Davies J explained in Skoljarev at 337, that such a policy is a means of expressing and implementing governmental policy, and states principles against which particular individual decisions can be made or measured.  His Honour pointed out (at 338) that issues such as those which arise under the FM Act sometimes involve conflicting considerations relating to the ecological sustainability of a particular fishery and promotion of economic efficiency.  The balancing of such considerations is fundamentally a governmental policy decision; Skoljarev at 338.  Under the FM Act, by reason of the role of industry representation through the Fishing Industry Policy Council, governmental policy is made after considerable input of, and consultation with, representatives of the fishing industry.

34                  The contention was that the limited access policy was unlawful because, on the evidence, it precludes or inhibits, except in special cases, the grant of further fishing permits in the ETBF and the S/WTBF when the grant of such permits could not offend against any of the objectives in s 3(1) and (2) of the FM Act.  To support the contention, the Court was referred extensively to the evidence, particularly that of Mr Presser, about the extent of the fish stock in the two fisheries.  The argument went so far as to urge the Court to approach the evidence of Dr Young “with caution”.

35                  It is clear that, although there was not much dispute about primary facts relating to the fish stocks in the ETBF and in the S/WTBF, there were significant differences of opinion and of emphasis in the expert evidence as to the significance of those primary facts to AFMA’s policy.  Hence, there appeared to be little dispute that skipjack tuna, as a migratory fish, congregate seasonally in different areas.  Or that the annual catch of skipjack tuna in the AFZ is a miniscule proportion of the skipjack tuna taken outside the AFZ in the Pacific and Indian oceans.  Or that there are only four or so of the presently held fishing permits to take skipjack tuna by the purse seine method in the ETBF and in the S/WTBF which exercise the fishing rights, even though there are 19 fishing permit holders in the ETBF and 13 fishing permit holders in the S/WTBF.  The fishing permit holders in the S/WTBF who presently exercise their permits fish in the southern rather than the western fishery areas.  There is therefore considerable “latent effort” (i.e. unused fishing permits) in respect of the two fisheries.  The evidence also suggested that the non-active fishing permit holders are not likely to become active, that is to convert the latent effort into active effort, in the immediate future.  There was also some evidence that two further vessels might soon commence efforts to utilise existing permits in one or other of the two fisheries, and that recently there had been a number of transfers of existing fishing permits in respect of the two fisheries so that there may be an increase in fishing in the two fisheries.

36                  In my judgment, the Tribunal is not shown to have fallen into error by not specifically making findings about each of the matters identified by counsel for Ajka as “prevailing circumstances” in relation to which the lawfulness of the limited access policy should be determined.  The Tribunal said it had considered all the evidence, and its reasons give no cause to suspect that it has overlooked any significant evidence.  It was up to the Tribunal to determine which of the evidence of the expert witnesses it preferred.  It preferred that of Dr Young.  It gave its reasons for doing so.  Its findings based upon its acceptance of his evidence were therefore reasonably open to it, and there is no error of law in the Tribunal making these findings.  Moreover, and more importantly, the FM Act does not specify any of the facts encompassed in the “prevailing circumstances” and about which it is said the Tribunal made no findings as being relevant considerations in respect of the lawfulness of the limited access policy, or in respect of the Tribunal’s consideration of the applications by Ajka for fishing permits under s 32 of the FM Act.  Of those “prevailing circumstances” not one is required to be addressed by the Tribunal either expressly, or by implication from consideration of the purpose of the FM Act or its terms.  An arguable exception might be whether the skipjack tuna stock in either or both of the two fisheries is endangered, and whether the skipjack tuna stock in either or both of the two fisheries is under-exploited.  Accordingly, subject to those two matters, none of the so-called “prevailing circumstances” is a relevant consideration required to be taken into account by the Tribunal in reaching its decision:  see per Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40.  The Tribunal’s findings included findings about:  the current knowledge of skipjack tuna stocks in the two fisheries; the current level of exploitation of those stocks in the two fisheries; and, the risk to the biological sustainability of those stocks by the grant of further fishing permits at this stage of the two fisheries’ existence.  It thus dealt with the two matters which might be said necessarily to have been addressed.

37                  I think the attack on the Tribunal’s reasons is in substance an attempt to revisit the findings of fact by the Tribunal.  That is perhaps also indicated by Ajka’s attempt to have weight placed upon the evidence of Mr Presser and the urging of caution in relation to Dr Young’s evidence, notwithstanding the Tribunal having expressly preferred the evidence of Dr Young.  The fact that the Tribunal did not explicitly refer to all the evidence to which counsel for Ajka now refers does not mean that the Tribunal did not consider it.  It said that it had considered all the evidence, and the related submissions.  Its recital of the evidence of the six witnesses is spread over several pages of its reasons, but the primary evidence in written statements and reports, and in the transcript of its hearing, extends over hundreds of pages.  That only part of the evidence is extracted or referred to in a judgment, where the evidence is extensive does not indicate a failure to consider the totality of the evidence.  Without some further feature, pointing to an actual failure by the Tribunal to consider the whole of the evidence before it, there is no error of law shown to have been made by the Tribunal in coming to its decision.

38                  Consequently, in my judgment, the attack upon the Tribunal’s reasons, on the basis that it was required and failed, to address and make findings about the various “prevailing circumstances” identified by counsel for Ajka, must fail.

39                  The next submission was that the Tribunal had failed to consider each of the objectives in s 3(1) of the FM Act in addressing the legality of the limited access policy.  An alternative argument was that the Tribunal erred in according paramountcy to the objective specified in s 3(1)(b), even if it did address the other objectives in s 3(1) of the FM Act.

40                  In AFMA v Adams (1995) 61 FCR 314 at 330-333, Tamberlin J indicated that it is up to AFMA, provided it is not acting perversely, to determine the weight and emphasis it gives to each of the statutory objectives when making decisions under the FM Act:  see also Peko-Wallsend at 41 per Mason J and at 55-56 per Brennan J; Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409 at 412-413 per Black CJ; Deloitte Touche Tohmatsu v Australian Securities Commission (1996) 136 ALR 453 at 468 per Lindgren J; Latitude Fisheries Pty Ltd v AFMA [2002] FCA 416 at [88]-[89] per RD Nicholson J.  In both Adams at 335-336, and in Bannister Quest at 513-514 it was said that, in relation to a particular decision, AFMA may not be compelled to take into account each of the objectives specified in s 3(1) of the FM Act.  I do not think it is necessary to revisit the latter proposition in this matter.

41                  The Tribunal in its reasons expressly indicated that it did consider the objectives specified in s 3(1) and did not solely decide the lawfulness of the limited access policy only by reference to the principle in s 3(1)(b).  The relevant part of the Tribunal’s reasons is referred to in [26] above.  It reaffirmed that it had done so at [89] of its reasons.  I therefore do not accept that it failed to consider the other specified principles.  The paramountcy which the Tribunal attributed to the principle in s 3(1)(b) was not on the basis that the Tribunal did not have to consider the other principles.  The authorities referred to indicate that, in relation to particular decisions, the Tribunal is generally entitled to give particular significance to one or other or several of the specified principles.  It is clear that the Tribunal placed very considerable weight on that expressed in s 3(1)(b).  It gave reasons for doing so, based upon the nature and state of development of the two fisheries.  Its findings, based upon the evidence of Dr Young which it accepted, support its view that the principles of ecologically sustainable development and the exercise of the precautionary principle warranted the limited access policy of the AFMA.  Once it had made those findings, based upon Dr Young’s evidence, I do not consider there is any scope for a finding that the Tribunal’s conclusions were not reasonably open to it.

42                  The next contention was that the Tribunal erred in law because its conclusion about the lawfulness of the limited access policy is inconsistent with the principles expressed in ss 3(1)(c) and 3(2)(b) of the FM Act.

43                  In fact the Tribunal concluded that the limited access policy is consistent with the objective in s 3(1)(b) and, at the least, not inconsistent with the other objectives in s 3(1) and s 3(2).  Hence, it expressly addressed whether the limited access policy serves the purpose of maximising economic efficiency in the exploitation of the resources of the two fisheries, and the directory purpose of achieving the optimum utilisation of the living resources of the AFZ.

44                  In my view, its conclusion does not involve any error of law on its part.  In addressing the several policy objectives, the cases referred to above indicate that they must be addressed having regard to the circumstances prevailing in the particular fishery at the time.  As Sheppard J said in Adams at 332, it is not possible to undertake the exercise of considering the objectives compendiously.  His Honour said:

“The only way in which the exercise can be performed is by looking at each objective individually.  No doubt there will be cases in which the Minister may give varying degrees of weight and emphasis to this or that objective.  So long as each objective is pursued, there will be no breach of duty.  But if one of the objectives is not pursued at all, then that will not be the case.”

45                  The Tribunal’s consideration of the other principles in s 3(1) of the FM Act is only brief.  That is because it regarded the principle in s 3(1)(b) as being of such significance having regard to the stage of knowledge and development of the two fisheries.  But I think its reasons disclose that it did consider each of the principles which s 3(1) obliged it to consider, and that it also considered the directory principles in s 3(2) of the FM Act.  It recognised in [76] of its reasons that it must have regard to the principles in s 3(1) of the FM Act and at [87] it expressly turned to consider the other principles.  It is correct, as counsel for Ajka pointed out, the Tribunal expressed itself in the following terms:

“The question in these proceedings arises as to whether the refusal pursuant to s 32 of the Act of any further permits to take skipjack tuna in the subject fisheries by the purse seine method, unless cogent reasons exist, is pursuing the objective of ensuring the biological sustainability of the fish stocks in those fishers or any of them.”

I do not read that passage as indicating that the only question addressed by the Tribunal was that posed by s 3(1)(b).  To do so would ignore the balance of the Tribunal’s reasons, and in particular the passage where it said it was considering the other objectives.  The passage quoted above was but a step in the Tribunal’s reasoning.  As the limited access policy depended for its integrity upon a positive answer to the question there asked, it was appropriate for the Tribunal initially to focus upon it.  If the limited access policy had not passed through that portal, the outcome of Ajka’s application may well have been different.

46                  The fact that there were reasons advanced by Ajka that the objectives expressed in s 3(1)(c) and s 3(2)(b) pointed to a favourable outcome of its applications for fishing permits does not demonstrate that the Tribunal, by reason of its decision, must have failed to pursue those objectives.  It was clearly aware of the particular circumstance of Ajka, including the economic efficiencies which would flow to it if the fishing permits were granted.  It was clearly aware of the potentially beneficial outcome for the Port Lincoln Cannery, and perhaps for the economy, of processing locally caught rather than imported skipjack tuna.  It was clearly aware of the extent to which existing fishing permit holders in the two fisheries exercised their fishing rights and that there was considerable latent effort.  There were other matters put to the Tribunal, and identified in submissions on this application, which it is not necessary to detail.  Whilst there may be much that understandably Ajka presented to the Tribunal in support of its application for review by reference particularly to the objectives in s 3(1)(c) and s 3(2)(b) of the FM Act, the determination of the Tribunal that the limited access policy was lawful, made after consideration of all the objectives, is not shown to itself involve any errors of law.  The weight ascribed to the matters presented by Ajka on those objectives, in relation to the other matters the Tribunal briefly adverted to, and then the weight attributed by the Tribunal to the several objectives specified, was each a matter for the Tribunal.  I am not persuaded that its conclusion involved any error of law on its part.

47                  Finally, counsel for Ajka urged that there was an error of law in the Tribunal’s failure to conclude that there were cogent reasons why, in relation to Ajka’s two fishing permit applications, the limited access policy should not have been applied.  At one point, the submission was put that the Tribunal failed to address the issue at all, but it clearly did so:  see [29] above.  Counsel referred to the historical circumstances giving rise to the existing fishing permits by the purse seine method in the two fisheries, the extent to which those permits are presently under-utilised i.e. the existing latent effort in respect of the two fisheries, and the investment of Ajka in the Independence and the limited period during each year which it operates as a fishing vessel.

48                  The Tribunal was aware of those matters.  It referred to them in the course of its reasons, although it did not repeat them at the point at which it considered whether there were cogent reasons for departing from the policy in the case of the two fishing permit applications of Ajka.  It is not shown to have overlooked them, or any of the matters urged upon it by Ajka in relation to this part of its case.  It found that, despite those matters, there were no cogent reasons for departing from the limited access policy of AFMA.  In my judgment, it is not shown to have erred in law in reaching that conclusion.  To intervene in its decision on this issue would, I think, be to succumb to the temptation of substituting for the decision of the Tribunal a decision of the Court on a qualitative judgment on a matter of fact.  The Tribunal did not regard the particular considerations identified by Ajka, to the extent to which it accepted them as established primary facts, as warranting departure from the limited access policy.  Of course, policy may be departed from in a particular case:  per Brennan J in Re Drake at 645, but in this instance I do not consider the decision of the Tribunal not to do so is a consequence of any error of law on its part, but simply a consequence of its consideration of the limited access policy of AFMA and the reasons advanced by Ajka as to why the policy should be departed from.  Its decision does not involve any failure to consider the nature and ramifications of the policy and the nature and consequences of the individual circumstances relied upon by Ajka.

49                  I have for those reasons concluded that the application should be dismissed.  I so order.

Associate:

Dated:              26 March 2003