The Federal Court has ruled that the plan of management for south-east Australia is based on a statistical fallacy.
The fallacy caused an absurd result.
The court did not overturn the whole plan, but is fairly clear from Justice Maurice O’Loughlin’s judgment that he would be prepared to unless the Australian Fisheries Management Authority did something about the plan or at least gave some redress to a fishing company that brought the action saying it had been badly treated.
A spokeswoman for the authority said yesterday that the authority’s board is meeting today (thursjul30) and tomorrow (frijul31) to discuss what it will do.
The south-east fishing trawl goes from Barrenjoey Point near Sydney to Kangaroo Island in South Australia. It targets mainly orange roughy but also gemfish and blue grenadier.
Austral Fisheries Pty Ltd objected to its quota on orange roughy. Justice O’Loughlin said on Tuesday (jul 28) the setting of the management plan under the Fisheries was legislative, even though devised by the Minister, because it applied to all fisheries. Therefore Austral could not complain on normal administrative-review grounds.
However, he found that the plan could not stand up as delegated legislation because “”it produces such an absurd result, doubling one man’s quota and giving him 18 per cent of the total available catch whilst reducing everybody else’s.”
“”There is justification for judicial intervention to redress an understandable sense of injustice,” he said.
The judge deferred making a formal to permit the parties to consider their formal positions.
The authority appeared not to take the hint. After the judge said the plan produced an absurd result and contained a statistical fallacy, it put out a statement saying, “”Fishermen should take heed of the finding when Mr Justice O’Loughlin deferred making a decision. In the absence of any such decision the present management plan stays in place and will be enforced in respect of gemfish. We will not back down on this issue.”
It is true the judgment was about orange roughy, whereas the authority’s main concern at present is about gemfish. Fishermen are angry about the slashing of the quota to virtually nothing (just accidental catch while fishing for other species). They have protested by handing free gemfish out in Sydney.
The authority says it has a responsibility to protect Australia’s fish resource from over-exploitation.
The defect the judge found in the management was a serious statistical error, highlighted in evidence given by Desmond Nicholls, dean of the Faculty of Economics and Commerce at ANU.
He presented the accompanying table showing road deaths over two successive Easters. The overall percentage increase was 12.2. However, if the figures shaded are averaged, you get 53.6 per cent. This figure is statistically meaningless, but the fishing plan used a similar sort of figure to strike its quotas.
Given that the law required quotas to be based on previous catches and the amount of investment, it was unjust to base the quota on this fallacy.