Harding v Chief Executive, Department of Employment, Economic Development and Innovation - [2010] QCAT 509

CITATION:

Harding v Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 509

PARTIES:	Mrs Jeannette Harding
v
Chief Executive, Department of Employment, Economic Development and Innovation

APPLICATION NUMBER:

FHR103-09

MATTER TYPE:

General administrative review matters

HEARING DATE:

21 July 2010

HEARD AT:

Townsville Supreme Court
31 Walker Street
Townsville 4810

DECISION OF:

Peter Wulf, Brydget Barker-Hudson, Joanne Browne

DELIVERED ON:

27 September 2010

DELIVERED AT:

Level 10
BOQ Centre
259 Queen Street
BRISBANE QLD 4000

ORDERS MADE:

The Respondent’s decision of 2 November 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:	Self Represented
RESPONDENT:	Chief Executive, Department of Employment, Economic Development and Innovation represented by Mr M Lightowler

REASONS FOR DECISION

The applicant, Mrs Jeannette Harding has appealed against a decision of a delegate of the Chief Executive, Department of Employment, Economic Development and Innovation dated 2 November 2009. The decision was to amend Mrs Harding’s primary commercial fishing boat licence 18511 with boat mark FXYZ by removing her C1 fishery symbol pursuant to s.63(2) of the Fisheries Act 1994.
This matter was heard on 21 July 2010. Subsequent to the hearing of the application, both parties were asked to file further written submissions concerning the relevant log book data and other information particularly from Mrs Harding about times when she could not fish as per her submissions that she was interstate looking after sick relatives and also at the funerals of her family that impacted on the use of her C1 symbol.
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 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, M/s Harding has argued that the decision will cause her severe personal hardship. It is noted that other submissions were made in Mrs Harding’s Show Cause Notice but these were not pressed at the hearing.
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.
It may be noted that 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.
An 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 commercial and current level of catches or fishing effort might not be recognised in future management arrangements. Mrs Harding has acknowledged that she was aware of the investment warning.
When making an assessment of the catch data for the applicant, it is clear that M/s Harding’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 extremely limited catch in the four year period, totalling only 88kg. 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 again limited catch in the four year period totalling 894kg. M/s Harding’s licence satisfies the first limb of the test of the second period, in that the C1 symbol satisfies the criteria under the Policy for the year from 13 September 2006 and 12 September 2007 but does not satisfy the “or” provision, this being 1000kg in the whole period, although it could be considered that it only just falls short of that section of the second period (894kg).
It was highlighted in the Respondent’s supplementary submissions[2] that the normal catch time for taking crabs under the C1 symbol was between December and May of each year.[3]
[2] Filed 29 July 2010
[3] Annual Status Report 2010 – Mud Crab Fishery, report prepared by the Respondent
Both the parties provided information on catches from other fisheries. Mrs Harding’s own submission was that she is predominantly a net fisher.[4] The licence has significant catch history for that fishery, including over 10,000kg in the year January to December 2006.
[4] Exhibit 1 – Appeal Book – pages 9 through 11 – Response to Show Cause Notice
Mrs Harding argued that the history of the C1 symbol in the last number of years along with her intended reliance on the C1 fishery and the severe personal hardship she would suffer ought to have resulted in the decision maker exercising the discretion in her favour under the Policy and not amended her licence by removing her C1 symbol. She argued that this was supported by her specific reliance on the C1 symbol as a component of her catch subsequent to that time but prior to the release of the policy.
Mrs Harding also suggested that there were periods when she could only fish in the net fishery as it was more practical to terminate net fishing operations at short notice so that she could travel to Victoria during the years 1999 to 2003. While the Tribunal acknowledges that this may have been a decision that Mrs Harding personally made, it is clear from the logs books that there was consistent net fishing in the vast majority of months in 2000 through 2005. There were only a number of months when there was an indication from Mrs Harding that she was in fact in Victoria for reasons associated with holidays; however the only time that Mrs Harding has actually indicated that she was unable to fish because of her father was late July and August 2003.
It would therefore appear that Mrs Harding could have also utilised her C1 symbol at the same time as net fishing. In a specific case that Mrs Harding was required to travel to Victoria, it more than likely that Mrs Harding could have organised for another fisher to collect her pots on that particular occasion. The evidence does not support her argument that she needed to be able to terminate fishing operations on a moment’s notice to travel.
The Tribunal finds that no specific circumstances exist and the discretion should not now be exercised in favour of Mrs Harding.
In these circumstances, the decision under review is affirmed and the C1 symbol will be removed.