Hoschke v Chief Executive, Department of Employment, Economic Development and Innovation
[2011] QCAT 252
•2 June 2011
| CITATION: | Hoschke v Chief Executive, Department of Employment, Economic Development and Innovation [2011] QCAT 252 |
| PARTIES: | Michael and Gayleen Hoschke / Hoschke Pty Ltd |
| v | |
| Chief Executive, Department of Employment, Economic Development and Innovation |
| APPLICATION NUMBER: | FHR069-09 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 29 November 2010 |
| HEARD AT: | Cairns |
| DECISION OF: | Peter Wulf, Member Susan Bothmann, Member Mark Johnston, Member |
| DELIVERED ON: | 2 June 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The Respondent’s decision of 24 July 2009 to amend Licence Number 10004 with Boat Mark FTDV to remove the C1 symbol is confirmed. The Respondent’s decision of 5 August 2009 to amend Licence Number 20552 with Boat Mark FLFJ to remove the C1 symbol is confirmed. |
| CATCHWORDS: | Fisheries – crab – investment warning – catch history – multiple licences and symbols – family business – fabricated evidence – no special circumstances |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Self Represented |
| RESPONDENT: | Chief Executive, Department of Employment, Economic Development and Innovation represented by Mr Phil Gaffney (by telephone) |
REASONS FOR DECISION
The applicants, Michael and Gayleen Hoschke who operate under the company Hoschke Pty Ltd have appealed against two decisions of a delegate of the Chief Executive, Department of Employment, Economic Development and Innovation dated 24 July 2009 and 5 August 2009. The decisions were to amend the Hoschkes’ primary commercial fishing boat licences 1004 and 20552 with boat mark FTDV and FLFJ respectively by removing the C1 fishery symbol pursuant to s 63(2) of the Fisheries Act 1994 (the Act).
This matter was heard on 29 November 2010. Within the appeal files, there was also material with respect to six applications for an “S” symbol which the Hoschkes had applied for. Three applications for “S” symbols were granted but the appeal material related to primary commercial fishing boat licences 6533, 17975 and 6526 with boat mark FXLT, FYBU and GJK respectively which were all refused an “S” symbol by the respondent on 2 June 2009. However these decisions were not discussed at the hearing and did not seem to have been pressed and therefore no further discussion is necessary as to these matters.
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 the Hoschkes about times when supposedly crabs were caught by staff using their licence and sold without being included in the log book used by FLFJ.
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 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 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.
[10] In this case, the Hoschkes have argued that the decisions were contrary to the Act, are manifestly unfair and will cause them severe personal hardship.
[11] 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”.
[12] 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.
[13] 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.
[14] With respect to whether the decision is contrary to the Act, the Hoschkes argued that the Policy was unlawful.[2] The Tribunal finds the applicants’ arguments incorrect. Under Part 5 Division 1 of the Act, the respondent can lawfully under s 20A(1)(h) of the Act, formulate and operate arrangements for adjusting the use of fisheries resources, including, for example, by adjusting the number of authorities for a fishery. In this case, the respondent has lawfully adopted the policy and it is not contrary to the Act.
[2] Fisheries Act 1994 – Part 5 Division 1.
[15] Under s 185 of the Act, the Tribunal cannot review a decision about Policy and/or the contents of the Policy, the Tribunal can merely assess the application of the Policy.
[16] 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 was likely to adversely affect the sustainability of stocks in that fishery.
[17] 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.
[18] Mr Hoschke has been involved in the fishing industry for 36 years as 3rd Generation fishers. Mr Hoschke indicated that he had worked with his father for 20 years and bought his first licence in 1981. At the time, he was catching barramundi, mackerel and crab. The Hoschkes now work with their son, daughters and son in law and hold multiple licences.
[19] In 1996 the Hoschkes bought FV Delisa with boat mark FWKB. The Hoschkes stated that Mr Hoschke was injured as a result of a fall from Weipa wharf in 1997. At the time the Hoschkes appear to have been utilising FWKB. The Hoschkes purchased FLFJ in about February 2000. FV Delisa sunk at Mornington Island in April 2001 and as such, the licence was put into “no boat”. The Hoschkes then worked FLFJ with the FV Archer River during the remainder of 2001 before putting the FV Archer River onto FWKB and FLFJ went into “no boat” on 5 March 2002. Mr Hoschke then skippered FWKB around where they lived at the time. It would appear that the Hoschkes indicate that the reason for working in this particular area was based on medical information although Mr Hoschke continued to fish with his medical condition.
[20] It was about this time that the evidence suggests that the Hoschkes sold FV Archer River. FLFJ returned to a normal licence when the FV Archer River was put back on the licence on 30 April 2003. On 10 September 2003 FLFJ was put back into “no boat” and it stayed in no boat until the FV Pateresa Neil was put on the licence in 2008, although the Hoschkes suggest that a substitute primary licence for FLFJ was issued over a tender so as the Hoschkes could fish in the C1 fishery.
[21] When making an assessment of the catch data for the Hoschkes’ licences, the following is observed:
(a)For licence number 20552 with boat mark FLFJ, the catch history shows:
(i)For the first period, this being 13 September 1999 to 12 September 2003, the licence had a total catch of 212kg, well below the 1,500kg required in the whole period and there was no periods when the catch was above the minimum requirement of 250kg; and
(ii)For the second period, this being 13 September 2003 to 12 September 2007, the licence had a total catch of 17,074kg, above the 1,000kg required in the whole period with only one period meeting the minimum requirement of 500kg:
1. 13 September 2003 to 12 September 2004 = 16,534kg;
2. 13 September 2004 to 12 September 2005 = 278kg; and
3. 13 September 2006 to 12 September 2007 = 262kg.
(b)For licence number 1004 with boat mark FTDV, the catch history shows:
(i)For the first period, this being 13 September 1999 to 12 September 2003, the licence had a total catch of 974kg, only 65% of the required 1,500kg in the whole period and only one (1) period when the catch was above the minimum requirement of 250kg:
1. 13 September 2002 to 12 September 2003 = 793kg – it is noted that between 13 September 1999 and 12 September 2000 the licence had 181kgs;
(ii)For the second period, this being 13 September 2003 to 12 September 2007, the licence had a total catch of 5,548kg, well above the 1,000kg required in the whole period with two periods meeting the minimum requirement of 500kg.
[22] The Hoschkes’ licence number 20552 with boat mark FLFJ does not satisfy the criteria under the Policy for the period from 13 September 1999 to 12 September 2003, although if the Tribunal found that the additional catch were included that were sold allegedly in 2000 (1,180.4kg) this would make the catch for the period of 13 September 1999 to 12 September 2003 (1,398.4kg).
[23] As acknowledged by Mr Gaffney for the Respondent, if this amount was included the catch history for the first period would only be short in respect of catch history for that period by about 100kg if it was legitimate catch. This would normally be accepted by the respondent as adequate for catch within the fishery, although the respondent disputes the use of receipts as evidence of catch not recorded in the log book.
[24] In contrast, it is clear that the Hoschke’s licence number 1004 with boat mark FTDV clearly 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 were some catches in the years to 2003 (181kg and 793kg for the 1st and 4th relevant periods).
[25] When considering the catch history of the C1 symbol on licence number 20552 with boat mark FLFJ for the period between 13 September 2003 and 12 September 2007, one of the periods satisfy the criteria under the Policy but overall, the licence satisfies the second limb of the criteria. The history for the licence shows that there was a very large catch in 13 September 2003 to 12 September 2004 (16,534kg) with limited catches in the years from 13 September 2004 to 12 September 2005 and from 13 September 2006 to 12 September 2007 (278kg and 262kg for the 1st and 4th relevant periods).
[26] The catch history of the C1 symbol on licence number 1004 with boat mark FTDV for the period between 13 September 2003 and 12 September 2007 is similar to that of licence number 20552 with boat mark FLFJ for the same period. The catch is well above the required 1,000kg and moreover, two of the periods satisfy the criteria under the Policy individually. The history for the licence shows that there were good catches in the years to 2007 (3,399kg, 1,818kg and 333kg for the 1st, 2nd, and 4th relevant periods).
[27] The Hoschkes contended that when FLFJ was being utilised by other skippers catch was being caught within the C1 fishery but was not included in the log books. The Hoschkes suggest that there was C1 catch not logged within the log books from June and July 2000 and from 6 October 2000 to March 2002. They appear to be suggesting that a skipper by the name of W Walsh allegedly caught catch that he did not record in Log Book 0297.
[28] When assessing Log Book 0297, for the period from 1 November 1997 to 2 January 2000 a D Nash was the fisher operating FLFJ using the FV Archer River. At no time during that period was there any catch recorded in the log book in either the net or crab fishery.[3] Page 28 of Log Book 0297 states that Mr Hoschke was the master on the vessel and no fishing was undertaken between 1 February 2000 and 30 May 2000.
[3] Log Book 0297 Pages 1 through 27 inclusive.
[29] Page 29 of Log Book 0297 is first dated 4 June 2000 and has the name of a Chris McNeil as master although this person has not signed the page. No catch is listed on the page and the page is not dated other than for 4 June 2000.
[30] Page 30 of Log Book 0297 is dated from 8 June 2000 to 23 June 2000. The log book page is signed by a W Walsh. The only catch recorded on the page is for Barramundi and King Salmon. There is very limited catches per day when thinking about normal net catches. For example, many days had catches of less than 5kg which would not be consistent with a profitable fishing operation. Importantly, the log book states that no pots or dillies were used during the period. Page 31 of Log Book 0297 is dated from 24 June 2000 to 28 June 2000 and very similar fish data is recorded, with very limited catch and no crab pots used.
[31] Page 32 of Log Book 0297 is dated from 28 June 2000 to 30 July 2000. Between 28 June 2000 and 12 July 2000 no fishing was undertaken. The log book page is signed by A Hughes. Similar catch results are observed for the same species of fishes although on 27, 28 and 30 July catches of fishes increased to 24kg, 12kg and 13kg respectively. Unlike the previous pages in Log Book 0297 there are catches of crab recorded, these ranging from 4kg to 40kg per day. This made up 212kgm in total catch for the log book page.
[32] Page 33 of Log Book 0297 states that W Walsh was the master on the vessel and no fishing was undertaken between 31 July 2000 and 31 August 2000.
[33] From Page 33 through to Page 50 (Page 45 has been totally removed) in Log Book 0297, this being from 12 March 2001 to 1 October 2001, three skippers operated the vessel, this being the Mr Hoschke, C Bailey (although on page 34 the name Bailey is spelt Baily and the page is not signed) on Pages 34 through 41, D Turner on Pages 42 through 44 and then Mr Hoschke from Pages 46 to 50. On all pages there is only net catch and no crab catch nor any listing of pots or dillies being used.
[34] The Hoschkes have provided the Tribunal with tax invoices from Karumba Seafood and a TNT consignment note that they suggest demonstrates that the licence had catch from the C1 fishery during the period from 5 March 2000 to 18 September 2000. The dates of the tax invoices include:
(a)5 March 2000 – Karumba Seafood Invoice 44: 189.6kg Cooked Crabs – Paid to Karumba Lodge;
(b)6 March 2000 – TNT Consignment Note EV737502 sent by Steven Pankhurst to the applicant: 65kg Cooked Crabs;
(c)Undated – Invoice 561843 from an unknown source: 111.3kg Cooked Crabs between 12 March 2000 to 14 March 2000 – Paid to Karumba Lodge;
(d)Undated – Invoice 561846 from an unknown source: 141kg Cooked Crabs between 22 March 2000 to 27 March 2000 – Paid to Karumba Lodge;
(e)5 April 2000 – Karumba Seafood Invoice 14: 205.8kg Cooked Crabs – Paid to Karumba Lodge;
(f)2 May 2000 – Karumba Seafood Invoice 26: 118kg Cooked Crabs;
(g)15 May 2000 – Karumba Seafood Invoice 38: 332kg Cooked Crabs;
(h)1 August 2000 – Karumba Seafood Invoice 10: 97.4kg Cooked Crabs; and
(i)18 September 2000 – Karumba Seafood Invoice 30: 31.6kg Cooked Crabs.
[35] The total of these invoices if accepted would result in an increase in the catch data for the first period of 1,180.4kg.
[36] It is noted that on Page 32 of Log Book 0297, A Hughes has a total catch of crab of 212kg; however there is no invoice from Karumba Seafood for this crab catch unless Karumba Seafood Invoice 10 from 1 August 2000 includes catch from that period. It is noted that this invoice is for only 97.4kg so therefore it appears unlikely that this is an invoice for this catch as it is significantly lower than the catch listed.
[37] Of extreme concern is that of the nine invoices provided by the Hoschkes, seven of those are for the period between 1 February 2000 and 30 May 2000 when Mr Hoschke himself was the skipper of the vessel. This would suggest to the Tribunal that either the Hoschkes are trying to use invoices from other licences they may hold to be included in the catch data for FLFJ or in the alternative, Mr Hoschke is not recording the catches within the log book as required which is in breach of the requirements of the Act.
[38] The Tribunal finds that while the Hoschkes may have sold the crabs to Karumba Seafood, they did not come from the utilisation of FLFJ and therefore the catch claimed cannot be included within the catch history for that licence. The Tribunal finds that the log book data held by the respondent is accurate and the invoices are for another licence.
[39] With respect to FTDV it would appear from the Hoschkes’ submissions that after the release of the investment warning, the licence concentrated on fishing in fisheries that were underutilised prior to the investment warning. The licence was specifically a line licence between 1990 and 1995. In 1997 it commenced fishing in the net and crab fisheries although there were limited catches in the C1 fishery in 1997, 2,048kg in 1998 and 15kg in 1999. There was then no catch in the C1 fishery until 2003. Therefore there was very limited catch in the first criterion period as highlighted above.
[40] The investment warning was released in 2003 and it is noted that FTDV was transferred into the ownership of the Hoschkes in March 2008 this being over four and a half years after the investment warning was released. Any activity undertaken prior to that time was not in the control of the Hoschke’s and they were clearly aware, as a result of the 36 years they have been involved in the fishing industry and also being the holders of multiple licences, of the potential impacts and requirements of the investment warnings.
[41] The Hoschkes are not for the purpose of FTDV recent entrants and the licence does not have consistent catch across the C1 fishery every year to be considered a multi-endorsed fishing licence for the purposes of the Policy.
[42] The Hoschkes argue that the Tribunal should set aside the respondent’s decision based on them utilising the licence in Fishing Areas Nine. The Tribunal has the power under s 61 of the Act as does the Chief Executive to impose reasonable and relevant conditions on an authority. Under s 64 of the Act the Chief Executive has the power to amend an authority.
[43] However, the respondent in the past has been extremely reluctant to place conditions on a licence as it is almost impossible to enforce. Therefore, to put a condition that restricts them to only fishing in Zone Nine would be very difficult to enforce. Moreover, there is no evidence before the Tribunal as to the number of people utilising the area other than that provided by the Hoschkes. Importantly, any commercial fisher with a C1 can fish in this area so there is nothing to stop the local crab populations being significantly reduced by other fishers moving into the area to catch crabs.
[44] The Tribunal finds that as the Hoschkes purchased FTDV well after the investment warning there is no reason to reverse the decision of the respondent. The Hoschkes have been involved in the fishing industry for many years and own numerous licences. Clearly it was a business decision to purchase a licence that they should have checked prior to purchase as to the catch history. Moreover, it is clear from the investment warning that future catches may not be considered and the licence had very limited catch history over the four year period prior to the investment warning. Of further concern is that the respondent had released the draft policy and significant consultation had been undertaken as to the Policy at the time the Hoschkes purchased the licence.
[45] The Tribunal finds that no special circumstances exist in these two cases and the Respondent’s decisions to remove the C1 symbol from both commercial fishing boat licences was correct and there should not be any discretion in favour of the Hoschkes with respect to both C1 symbols.
[46] In these circumstances, both the respondent’s decisions of 24 July 2009 to amend Licence Number 10004 with Boat Mark FTDV and the decision of 5 August 2009 to amend Licence Number 20552 with Boat Mark FLFJ to remove the C1 symbols are confirmed.
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