Fuchs v Chief Executive, Department of Employment, Economic Development and Innovation - [2010] QCAT 475

CITATION:

Fuchs v Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 475

PARTIES:	Mr Wayne Fuchs
v
Chief Executive, Department of Employment, Economic Development and Innovation

APPLICATION NUMBER:

FHR100-09

MATTER TYPE:

General administrative review matters

HEARING DATE:

30 and 31 August 2010

HEARD AT:

Cnr Queens Road and Freshwater Street
Hervey Bay Qld 4655

DECISION OF:

Peter Wulf, Aaron Suthers, Les Clarkson

DELIVERED ON:

20 September 2010

DELIVERED AT:

Level 10
BOQ Centre
259 Queen Street
BRISBANE QLD 4000

ORDERS MADE:

The Respondent’s decision of 12 October 2009 to amend Licence Number 5331 with boat mark FVSB to remove the L1 symbol is set aside and conditions imposed consistent with these reasons.

CATCHWORDS :

Fisheries, Investment Warning, Policy, Catch History, Special Circumstances, Conditions

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr Wayne Fuchs represented by Mr Chris Thompson of Law Essentials
RESPONDENT:	Chief Executive, Department of Employment, Economic Development and Innovation represented by Dr Ian Jacobson

REASONS FOR DECISION

The applicant, Mr Wayne James Fuchs has appealed against a decision of a delegate of the Chief Executive, Department of Employment, Economic Development and Innovation dated 12 October 2009 to amend his primary commercial fishing boat licence 5331 with boat mark FVSB by the removal of a L1 symbol pursuant to s.63(2) of the Fisheries Act 1994.
This matter was heard on 30 and 31 August 2010. Subsequent to the hearing of the application, the parties were requested to provide further submissions on potential conditions and other matters for consideration by the Tribunal.
The appeal was filed in the former Fisheries Tribunal. Effective 1 December, 2009, the Fisheries Tribunal was abolished. Under the transitional provisions of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), the Queensland Civil and Administrative Tribunal (QCAT) must deal with the proceeding.
On 18 July 2008, the Respondent adopted a written policy entitled “Policy for the Removal of Excess Fishing Capacity in Queensland’s Line, Crab, Beam Trawl and Eel Fisheries” (“the Line Policy”). The Line Policy states that its objective is to remove excess fishing capacity in Queensland’s line, crab, beam trawl and eel fisheries. The objective is to be achieved by providing for a decision making process to amend commercial fishing licences to remove L1, C1, T5, T6, T7, T8, T9 and E fishery symbols if minimum fishing history criteria are not met.
The Line Policy deals with the problem that there are many commercial fishing licences that entitle the holders to fish in Queensland’s line, crab, beam trawl and eel fisheries and those entitlements are not presently being utilised or are under-utilised. The concern is that these fisheries would be unsustainable if this latent effort is converted into actual effort as fishing entitlements become more restricted in other fisheries,
It is not the Tribunal’s role to second-guess the adoption of the Policy and the reasons for it. Under s.185(2)(a) of the Fisheries Act,[1] a decision “about policy” cannot be appealed against. This means that the Tribunal cannot review a decision made by the Respondent to adopt a policy.
[1] Previously s 196(2)(a)
However, the Tribunal has the role to hear and determine appeals against decisions made under the Policy. In other words, it is open to an applicant to argue that a decision made under the Policy involves an error of law. is manifestly unfair or will cause severe personal hardship.
Further, the power to amend a licence under s.63(2) of the Fisheries Act is discretionary. It is fundamental that the exercise of a statutory discretion cannot be fettered by a policy: see, for example, Perder Investments v Lightowler (1990) 25 FCR 150, R v Queensland Fish Management Authority: Ex Parte Hewitt [1993] 2 Qd R 201 at 204, 206. Accordingly, the Policy cannot be construed to limit the circumstances in which a symbol will not be removed where the minimum criteria are not met to those which “prevented a licence holder from meeting the required minimum commercial level”. Any other circumstances that would make it unjust to remove the symbol must be considered.
In this case, Mr Fuchs has argued that the decision is contrary to the Fisheries Act, manifestly unfair and will cause him severe personal hardship. Mr Fuch’s also submits that the decision maker failed to consider his special circumstances.
With respect to whether the decision is contrary to the Fisheries Act, s20A(1)(h) of the Act allows the Chief Executive to formulate and operate arrangements for adjusting the use of fisheries resources, including, for example, by adjusting the number of authorities for a fishery. Accordingly, the respondent can make policies, without it being discriminatory to remove particular symbols based on research and other information and these policies can be made consistent with the law at the time on making the policies. In this case, that has occurred and this action is not contrary to the Fisheries Act.
With respect to the decision being contrary to the Policy, as discussed, s.185(2)(a), a decision “about policy” cannot be appealed against. The Tribunal cannot review a decision made by the Respondent to adopt a policy.
When assessing Mr Fuch’s licence, the relevant decision maker was required to consider his catch history against the Policy. Under the Line Policy, the minimum commercial level of catch for the line fishery requires that:
(a)the holder has reported any catch under the L1 fisheries symbols in any three of the periods from
(i)1 July 1999 to 30 June 2000;
(ii)1 July 2000 to 30 June 2001;
(iii)1 July 2001 to 30 June 2002;
(iv)1 July 2002 to 30 June 2003;
(v)1 July 2003 to 30 June 2004;
(vi)1 July 2004 to 30 June 2005;
(vii)1 July 2005 to 30 June 2006;
(viii)1 July 2006 to 30 June 2007; and
(b)the total catch for the period from 1 July 1999 to 30 June 2007 is 3,000 kg or more.
When making an assessment of the catch data for Mr Fuchs, it is clear that Mr Fuch’s licence does not satisfy the criteria under the Policy for the period from 1 July 1999 to 30 June 2007. The history for the licence shows that there was no catch during the entire period. Clearly, Mr Fuch’s does not fulfil the requirements under the Policy.
Where the minimum commercial level of catch is not met, the Line Policy makes provision for special circumstances affecting the licence holder’s usual fishing pattern to be considered by the decision maker. The guidelines for the application of special circumstances acknowledge that licence holders might have specific reasons why they were unable to meet the minimum catch criteria. The guidelines require decision makers to decide whether special circumstances warrant the requirements of the Line Policy being set aside and, if so, what criteria should be used in place of the minimum criteria. The guidelines set out examples of types of special circumstances that may commonly arise, but these are not intended to be exhaustive. These types of special circumstances include:
(a)logbook clarification – where supporting documents show that there are errors in the recording of catches in logbooks;
(b)event – where no fishing activity was undertaken under any fishery symbol during a particular period because of a specific reason out of the control of the operator, such as illness and damage to or destruction of a vessel;
(c)recent entrant – where a licence holder has not met the entry criteria because he or she did not hold the licence or fishery symbol long enough to generate the required catch;
(d)multi-endorsed and diversified fishing operations – where a licence holder has a consistent level of catch history for a fishery symbol, but has failed to meet the criteria because he or she relied upon operating in a number of fisheries;
(e)other circumstances relevant to the L1 fishery – these includes where holders of RQ and/or SM fisheries symbols can demonstrate reliance on the L1 symbol to access coral reef fin fish and/or Spanish mackerel, where catch history is recorded in less than three years during the criteria period but the catches were significantly high, where spotted mackerel were taken in the past by net, and where trawl operators are able to demonstrate reliance on line caught product during certain periods;
(f)other circumstances for all fisheries symbols – any other special circumstances that prevented a licence holder from meeting the required minimum commercial level during the criteria period.
Mr Fuchs is 60 years of age and has held his commercial fishing licence for 35 years. He indicated to the Tribunal that he had fished for longer than that prior to purchasing his licence. During Mr Fuchs’ 35 years of owning his commercial licence, Mr Fuchs has never been convicted of an offence related to fishing, which for a commercial operator is unusual.
Mr Fuchs appears to fish in the crab and net fishery and until 2003 was a significant fisher in the ring net fishery prior to it being banned by the then Department insofar as fishers were no longer able to catch mackerel in that fishery. Since that time he has netted spotted mackerel within Hervey Bay region.
Mr Fuchs adduced evidence that he could show that he intended to undertake fishing within the L1 fishery by making minor modifications to his vessel and buying fishing tackle that would be used in the fishery.[2] Notwithstanding that this evidence may have demonstrated some intention to fish in the L1 fishery, the quantum of the purchases and modifications could not be considered as being significant and based on these purchases, the loss of Mr Fuch’s L1 would not result in severe financial hardship.
[2] Exhibits B and F
It is noted that Mr Fuchs and his son undertake fishing in a partnership arrangement at times. Mr Fuchs adduced evidence that while he may have no recorded catch in the L1 fishery, he undertakes fishing in that fishery and sells fish caught by line.[3] While this may be the case, it is pertinent to note that fishers are responsible for logging their catch in the fishery where the catch is caught.
[3] Exhibit C
Mr Fuchs also only fishes for mackerel with the Hervey Bay region. The Catch Data[4] provided by the Applicant suggested that there was extremely limited line fishing catch with the Hervey Bay region for Grey, School and Spotted Mackerel.[5]
[4] Exhibit H
[5] Zones V32, W32, V33 and W33
There was some discussion as to Mr Fuch’s medical history. Mr Fuchs adduced evidence that he had deteriorating health issues which made it almost impossible for Mr Fuchs to continue net fishing. Dr Rehman stated that Mr Fuchs was better off line fishing as it reduced infection to his legs. While this may not be considered on its face as being a significant issue, the loss of his L1 and only being able to retain his net symbol which he could not use without risk to his health would potentially result in Mr Fuchs no longer being able to fish commercially.
Two decisions handed down by the former Fisheries Tribunal are relevant in the circumstances, these being Riys –v- Chief Executive, Department of Primary Industries and Fisheries[6] and Brinnard –v- Chief Executive, Department of Primary Industries and Fisheries.[7]
[6] FT759
[7] FT757
In Riys, the appellant adduced medical evidence to the Tribunal that showed that while he would normally fish in the C1 fishery, during numerous years he was unable to as a result of the need to have surgery for the reconstruction of both shoulders on separate occasions and other matters that made it impossible for him to undertake crabbing. Based on his history in the fishery, the respondent consented to allowing Mr Riys to retain his C1 symbol based on the new evidence and this is the basis of the decision.
In Brinnard, the appellant again adduced evidence of significant medical conditions that did not allow him to fish in other fisheries except the C1 fisheries. Mr Brinnard could not physically manage the work involved with fishing under the N6 symbol. He would have to leave the industry and would have wasted most of the $20,000 that he paid to purchase the licence and the considerable amount he has invested in purchasing other equipment.
There was also significant discussion subsequent to the adjournment of this matter until 31 August 2010 with respect to the potential for the Tribunal to impose conditions on Mr Fuchs’ commercial fishing licence. Mr Thompson for the Applicant indicated that under s 61 of the Fisheries Act, the Chief Executive may impose reasonable and relevant conditions on an authority. Under s 64 of the Act, the Chief Executive has the power to amend an authority.
Under Schedule 1 of the Act, an authority includes a licence, permit, resource allocation authority or other authority issued, and in force, under the Act. Clearly Mr Fuchs’ commercial fishing boat licence is therefore an authority. A condition includes a restriction, thus allowing this Tribunal to amend Mr Fuchs’ licence and place a restriction on it.
The Respondent was asked to provide submissions on the placement of conditions on an authority. It is noted by the Tribunal that the Respondent and with some justification, is not inclined to support particular conditions as it says that it is extremely difficult to enforce them and moreover sets a precedent that could be used by other fishers when making an application before this Tribunal. The Tribunal acknowledges those concerns. However, the Tribunal acknowledges also that each case must be decided according to its own merits.
The Tribunal also notes the submissions of the Respondent that the placement of specific conditions on a commercial licence is not something that the Chief Executive would do and/or would have contemplated. The Tribunal does not believe that it is beneficial to speculate about something the Chief Executive would or would not do. Notwithstanding this submission, it is clear from the legislation that the placement of conditions on authority, this being a commercial fishing boat licence is something that was considered appropriate when writing the legislation. Therefore it is something this Tribunal can consider and moreover, make a determination about when making its decision.
The Tribunal finds that this is a wholly exceptional case. Mr Fuchs has been a commercial fishing boat licence holder for over 35 years without conviction for a fisheries offence. Mr Fuchs was also of the understanding that he would not lose his L1 symbol through alleged statements made by a Queensland Minister when the ban on the catch of mackerel in ring nets was enforced in 2003. Moreover, the medical evidence presented before the Tribunal is that if Mr Fuchs continues to net fish, it could have a significant deleterious effect on his health and line fishing is his only option for any future within the commercial fishing industry. The submissions made by Mr Thompson for Mr Fuchs was that while it would be preferential to have his L1 symbol returned, Mr Fuchs conceded that it would be just if he was able to fish for mackerel on a highly restricted basis. While it is noted from the Respondent’s submissions that Mr Fuchs could increase his catch from 0kg to in excess of 20,000kg, the Tribunal finds Mr Fuch’s circumstances render this is a highly unlikely occurrence.
The Tribunal finds that highly exception special circumstances exist in this case. The decision to remove the L1 symbol from the licence is not contrary to the Act as it is a decision made under the Line Policy; however a number of the matters that have been adduced as evidence to demonstrate that a special circumstances exists. Moreover, this matter is sufficiently similar to the matters of Riys and Brinnard as described above.
Accordingly, the Respondent’s decision of 13 October 2009 to amend primary commercial boat licence number 5331 with boat mark FVSB to remove the L1 symbol is set aside and the following conditions are imposed with respect to the L1 symbol pursuant to s 61 of the Act, those being:
(a)The L1 symbol may be used to line fish within Zones V32, W32, V33 and W33;
(b)The L1 symbol may only be used to catch mackerel species within Zones V32, W32, V33 and W33;
(c)The L1 symbol cannot be leased to another fisher for whatever reason; and
(d)If for any reason Mr Fuchs, the current holder of commercial fishing boat licence 5331 with boat mark FVSB wishes to sell the licence, the L1 symbol is surrendered to the Respondent.