Gadischkie v Chief Executive, Department of Employment, Economic Development and Innovation - [2010] QCAT 476

CITATION:

Gadischkie v Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 476

PARTIES:	Mr Dale Gadischkie
v
Chief Executive, Department of Employment, Economic Development and Innovation

APPLICATION NUMBER:

FHR023-09

MATTER TYPE:

General administrative review matters

HEARING DATE:

26 July 2010

HEARD AT:

Bundaberg Magistrates Court
44 Quay Street
Bundaberg Qld 4670

DECISION OF:

Peter Wulf, Aaron Suthers, Simon Burgess

DELIVERED ON:

20 September 2010

DELIVERED AT:

Level 10
BOQ Centre
259 Queen Street
BRISBANE QLD 4000

ORDERS MADE:

The Respondent’s decision of 17 July 2009 to amend the licence to remove the C1 symbol is affirmed.

CATCHWORDS :

Fisheries, Crab, Investment Warning, Catch History, Multiple Licences and Symbols, Family Business, No Special Circumstances

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr Dale Gadischkie
RESPONDENT:	Chief Executive, Department of Employment, Economic Development and Innovation represented by Mr R Marsh

REASONS FOR DECISION

The applicant, Mr Dale Gavin Gadischkie has appealed against a decision of a delegate of the Chief Executive, Department of Employment, Economic Development and Innovation dated 2 December 2009. The decision was to amend Mr Gadischkie’s primary commercial fishing boat licence 21086 with boat mark FWZS by removing his C1 fishery symbol pursuant to s.63(2) of the Fisheries Act 1994.
This matter was heard on 26 July 2010. Subsequent to the hearing of the application, both parties were asked to file further written submissions particularly as to Mr Gadischkie’s relaince on the C1 symbol.
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 Policy”). The 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 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 does have a role in hearing and determining appeals against decisions made under the Policy. In other words, it is open to an applicant/s to argue that a decision made under the Policy involves an error of law or 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 Gadischkie has argued that the decision is contrary to the Fisheries Act, manifestly unfair and will cause him severe personal hardship.
Under the Policy, the minimum commercial level of catch for the C1 fishery requires that the holder has taken:
“Crab Fishery – C1
250kg or more of crab taken under C1 symbol in three of the following four periods:
13 September 1999 to 12 September 2000
13 September 2000 to 12 September 2001
13 September 2001 to 12 September 2002
13 September 2002 to 12 September 2003
OR
1500kg or more of crab taken under a C1 symbol in the period:
13 September 1999 to 12 September 2003
AND
500kg or more of crab taken under a C1 symbol in any one of the following periods:
13 September 2003 to 12 September 2004
13 September 2004 to 12 September 2005
13 September 2005 to 12 September 2006
13 September 2006 to 12 September 2007
OR
1000kg or more of crab taken under a C1 symbol in the period:
13 September 2003 to 12 September 2007”
Where the minimum criteria are not met, the 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 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 with respect to the C1 fishery under the Policy 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; and
(e)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.
With respect to whether the decision is contrary to the Fisheries Act, s20A(1)(h) 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. Therefore, the adoption of the Policy is lawful and not contrary to the Fisheries Act.
The applicant has been involved in the fishing industry for many years working within a family business. He advised the Tribunal he currently owns four (4) commercial fishing boat licences, these being:
(a)FVRJ – purchased in 2005;
(b)FWSE – purchased in 2001;
(c)KND – purchased in 2003; and
(d)FWZS (the subject of this appeal) – purchased in August 2006.
The Applicant purchased the licence in August 2006 for $200,000.00. By Mr Gadischkie’s own admission, it was not a good buy. He had operated the other licences and bought this licence so he could operate with his son-in-law in the fishery. He indicated that he had been leasing FVRJ for certain periods during the last number of years.
However, in recent years, Mr Gadischkie has allowed his son-in-law and his son to operate the other licences which also have C1 symbols on them. He indicated to the Tribunal that he does this free of charge.
FWZS and therefore the CI symbol was transferred after the release of investment warning for the C1 fishery on 12 September 2003. The delegate determined that Mr Gadischkie either knew or ought to have taken reasonable steps to find out about the investment warning and should therefore not have increased investment or effort into the fishery. The delegate decided to exercise the discretion to amend the licence by removing the C1 symbol.
The investment warning issued on 12 September 2003 advised that any further investment in the Queensland Mud and Blue Swimmer Crab Fishery may not be acknowledged in respect of future access to the fishery. The investment warning was made because of concern that the activation of previously underutilised licences were likely to adversely affect the sustainability of stocks in that fishery.
The investment warning warned people with a current interest or considering investing in any of these fisheries that increases in their level of catches or fishing effort might from that time not be recognised in future management arrangements.
When making an assessment of the catch data for the applicant, it is clear that Mr Gadischkie’s licence does not satisfy the criteria under the Policy for the period from 13 September 1999 to 12 September 2003. The history for the licence shows that there was only catch in the year 1999-2000, this being 831kg. There was no other catch during that four year period and therefore the symbol does not satisfy the criteria under the Policy.
When considering the catch history of the C1 symbol for the period between 13 September 2003 and 12 September 2007, the history for the licence shows that there was catch in the year 2006-2007, this being 3,299kg. Mr Gadischkie’s licence therefore satisfies the criteria under the Policy for the period from 13 September 2003 and 12 September 2007.
The licence has continued since the criteria period to have large catches in the C1 fishery. The Respondent indicated that the licence had the following catches post the criteria period:
(a)2007-2008: 4,025kg;
(b)2008-2009: 4,620kg; and
(c)2009: 6,947kg.
Mr Gadischkie argued that the history of the C1 symbol in the last number of years along with his extensive reliance on the C1 fishery and the severe personal hardship he would suffer ought to have resulted in the decision maker exercising the discretion in his favour under the Policy and not amend his licence by removing his C1 symbol. This is further supported he says by his specific reliance on C1 as a major component of his after the investment warning but prior to the release of the policy.
After the hearing as directed by the Tribunal, Mr Gadischkie provided additional evidence including financial statements and taxation returns.
In an affidavit presented to the Tribunal by Mr Gadischkie, he indicated that his sales from seafood for the period 1 July 2009 to 31 March 2010 were $93,956.00. He further deposed that of that amount, $86,932.98 was from crabs. These figures would suggest that the C1 symbol makes a significant contribution to Mr Gadischkie’s income and the removal of that income would have a deleterious impact and could result in severe financial hardship.
During evidence, Mr Gadischkie indicated that he would be able to purchase a C1 symbol for approximately $16,000.00. In considering the evidence, while the personal hardship related to the specific loss of the C1 symbol off FWZS, and while the Tribunal finds it extremely generous of Mr Gadischkie to allow both his son and son-in-law to use his other licences free of charge, there would appear to be no reason why his son-in-law for example could not buy a C1 symbol and either transfer that onto Mr Gadischkie’s licence or Mr Gadischkie transfer one of his other C1 symbols onto FWZS.
The Tribunal finds that Mr Gadischkie has at least two other C1 symbols which he could easily transfer to FWZS, and accordingly, considering that he purchased the licence well after the investment warning, there are no special circumstances that exist in this case. Therefore, the respondent decision to remove of the C1 symbol from Mr Gadischkie’s commercial fishing boat licence gave sufficient weight to his specific circumstances and the discretion should not now be exercised in favour of Mr Gadischkie.
In these circumstances, the decision under review is affirmed and the C1 symbol will be removed.