Perry v Chief Executive, Department of Employment, Economic Development and Innovation
[2011] QCAT 324
•28 June 2011
| CITATION: | Perry v Chief Executive, Department of Employment, Economic Development and Innovation [2011] QCAT 324 | |
| PARTIES: | Mr Kevin Perry | |
| V | ||
| Chief Executive, Department of Employment, Economic Development and Innovation | ||
| APPLICATION NUMBER: | FHR091-09 and FHR034-09 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 25 March 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Jim Allen, Presiding Member Ron Joachim, Member John Tanzer, Member |
| DELIVERED ON: | 28 June 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | FHR091-09 FHR 034-09 The Applicant is granted a N10 fishery symbol to be attached to commercial fishing licence 10110 with boat mark FWTB subject to the conditions that the Applicant first surrender a N1 fishery symbol to the respondent and that the N10 fishery symbol may only be used in the Moreton Bay region. The respondent’s decision of 5 June 2009 to refuse the application for an S fishery symbol is confirmed. |
| CATCHWORDS: | GENERAL ADMINISTRATIVE REVIEW – FISHERIES – LOSS OF LICENSES – where applicant seeks review of decision of Chief Executive, Department of Employment, Economic Development and Innovation to remove various fishing licenses – where applicant’s catch does not meet criteria for minimum level of activity – where applicant claims decisions are manifestly unfair – where applicant wishes to use certain licenses in retirement and to pass to sons – where Tribunal accepts special circumstances exist for net fishery but not in other fisheries. Fisheries Act 1994 Ss 42A, 42B, 55, 59, 63, 196, 199 Queensland Civil and Administrative Tribunal Act 2009 s271 Perder Investments v Lightowler [1990] FCR 150 R v Queensland Fish Marketing Authority Ex Parte Hewitt [1993] 2 Qd 201 Silkes v Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 558 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Kevin Perry represented by Mr Andrew O’Brien, Barrister instructed by Ms Anita Clifford, Solicitor |
| RESPONDENT: | Chief executive, Department of employment, Economic Development and Innovation represented by Ms Tara Smith |
REASONS FOR DECISION
Introduction
Mr Perry has made his life as a commercial fisher and comes from a family with long involvement in the fishing industry. He has held a commercial fishing licence since 1979 when he was 18 years old. He fishes predominantly in Moreton Bay and practices sustainable fishing. As a result of a review of fishery symbols by the Chief Executive Mr Perry had certain of the symbols attached to his commercial fishing licence 10110 with boat mark FWTB removed. These symbols were an L1 symbol and C1 symbol. Mr Perry had also applied for two new symbols a N10 and S symbol which were being allocated by the Chief executive in accordance with a new policy. These applications were unsuccessful.
Mr Perry made application to the former Fisheries Tribunal to appeal the decisions and those applications have now come to the Tribunal for determination. There are separate applications FHR091-09 in respect of the removal of the symbols and FHR034-09 in respect of the refusal to grant the new symbols. The applications were heard together on 25 March 2011.
The Law
The appeals to the former Fisheries Tribunal are a reviewable decision for this proceeding of the Tribunal[1]. The Tribunal has the same functions which the former Fisheries Tribunal had and can only make a decision which that Tribunal could.[2] The grounds of review available are as follows:
a.The decision of the chief executive was contrary to the Act;
b.The decision of the chief executive was manifestly unfair; and
c.The decision of the chief executive will cause severe personal hardship to the applicant.[3]
Mr Perry raised ground (b) and (c) in his application for review in regard to the C1 and L1 decisions and ground (b) in respect of the N10 and S decisions. There are certain decisions of the chief executive which cannot be subject to review and this includes decisions in regard to the Chief Executive’s policy.[4]
[1] Queensland Civil and Administrative Tribunal Act 2009, s 271(3).
[2] Queensland Civil and Administrative Tribunal Act 2009, s271(2).
[3] Fisheries Act 1994, s196(2) (pre 1 December 2009).
[4] of Fisheries Act 1994, s196(2)(a) (pre 1 December 2009).
The C1 and L1 decisions were made in accordance with the Policy for the Removal of Excess Fishing Capacity in Queensland’s Line, Crab, Beam Trawl and Eel Fisheries. The L10 and S decisions were made in accordance with the Policy for the allocation of N4, N10, N11 and S fishery symbols. The Chief Executive has a broad power to amend an authority by the removal of a symbol and it is in accordance with policy that the powers of the Chief Executive are exercised.[5] In the same way the Chief Executive has broad powers to issue or to refuse to issue an authority.[6] The exercise of these powers are discretionary and such an exercise cannot be fettered by a policy.[7] Accordingly, the Policy cannot be construed to limit the circumstances in which a symbol will not be removed (or granted) where the minimum criteria are not met to those which “prevented a licence holder from meeting the required minimum commercial level”.[8] Any other circumstances that would make it unjust to remove the symbol must be considered.
[5] Fisheries Act 1994, s63 (pre 1 December 2009).
[6] Fisheries Act 1994,ss 55 and 59 (pre 1 December 2009).
[7] Perder Investments v Lightowler (1990) FCR 150; R v Queensland Fish Marketing Authority Ex Parte Hewitt [1993] 2 Qd R 201
[8] Sikes v Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 558
When determining an application for review the Tribunal may:
(a)confirm the decision appealed against;
(b)set aside the decision and substitute another decision; or
(c)set aside the decision and return the matter to the chief executive with directions the tribunal considers appropriate.[9]
In substituting another decision, the tribunal has the same power as the Chief Executive, which implies that the Tribunal when exercising power under the Fisheries Act 1994 (the Act) is to do so by way of rehearing.[10] It is noted that there is no requirement that the parties be limited to the evidence before the Chief Executive in respect of the application and so the hearing is on the merits. When exercising power the Chief Executive and therefore the Tribunal does so in accordance with the objects of the Act which is to provide for the use, conservation and enhancement of the community’s fisheries resources and habitats in a way that seeks to-
(a)apply and balance the principles of ecologically sustainable development; and
(b) promote ecologically sustainable development.[11]
[9] Fisheries Act 1994 ,s199 (pre December 2009).
[10] of Fisheries Act 1994, s199(2) (pre 1 December 2009).
[11] Fisheries Act 1994, s3 (pre 1 December 2009).
The Policy for the Removal of excess fishing capacity in Queensland’s Line, Crab, Beam Trawl and Eel Fisheries noted that excess fishing capacity (latent effort) has been identified in those fisheries where significant numbers of the respective fisheries symbols are not being utilised, or if they are to a very low level. That conversion of this latent effort would likely result in detrimental impacts to the fisheries and their users. And further that removal of latent effort is the most effective mechanism to ensure that fisheries management continues to meet the objectives of the Fisheries Act 1994. It was noted that there had been an investment warning issued on 12 September 2003, Policy on Investment in the East Coast Mud and Blue Swimmer Crab Fishery and Fisheries taking Rocky Reef Species such as Snapper, Pearl perch and teraglin jew by any Method. The investment warning advised potential investors, current commercial fishers and boat owners, that from the date of the warning, any expansion of fishing effort or increased investment in these fisheries may not be recognised in long term management arrangements. The investment warning was not applied in the policy to the rocky reef species as the L1 fishery was more diverse than the rocky reef fishery.
The policy was to be implemented by assessing all commercial fishing licences with the respective symbols against the eligibility criteria outlined in the policy and the use of a ‘show cause’ process to propose removal of symbols from licences that do not meet the policy criteria. Decision makers were to propose the removal of the symbol if they are satisfied the fishing history for the licence fails to meet the catch history criteria set by the policy as constituting a demonstrated minimum level of activity in the fishery in the specified periods. In response to the show cause notice, any further information the holder wishes to provide, including any reasons why the policy should not apply to the holder, such as a special circumstance affecting the holder’s usual fishing pattern during the above periods were to be considered by the decision maker.
The assessment criteria for the minimum level of fishing activity in the Crab Fishery – C1 under the policy are:
250kg or more of crab taken under the 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 200213 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
The assessment criteria for the minimum level of catch in the Line Fishery-L1 under the policy are:
The holder has reported any catch under the L1 fishery symbol in any three of the following periods:
I July 1999 to 30 June 2000
I July 2000 to 30 June 2001
I July 2001 to 30 June 2002
I July 2002 to 30 June 2003
I July 2003 to 30 June 2004
I July 2004 to 30 June 2005
I July 2005 to 30 June 2006
I July 2006 to 30 June 2007AND
The total catch for the period 1 July 1999 to 30 June 2007 is 3000kg or more.The Chief executive also provided guidelines for applying special circumstances. The guidelines also set out suggested adjusted criteria to be applied in relation to certain of the special circumstances. The special circumstances available include:
a. Logbook clarification – where an operator can provide supporting documentation such as unloading dockets or tax returns to demonstrate errors in respect of the logbook records received by the department:
b. Event – due to a specific reason no fishing took place under any fishery symbol on a licence for a specified period;
c. Recent entrant – licence has not met the catch criteria due to an insufficient opportunity to achieve catch levels as the licence or fishery symbol was not held long enough to generate the required catch history;
d. Multi-endorsed and diversified fishing operations- operators who have a consistent level of catch history for the fishery symbol but failed to meet the criteria because they relied on operating in a number of fisheries during the criteria period.;
e. Other circumstances relevant to the L1 fishery – Consideration will be given to holders of RQ and/or SM fishery symbols who can demonstrate a reliance on the L1 fishery symbol to access coral reef fin fish and/or Spanish mackerel. Consideration will also be given to cases where catch is recorded in less than 3 years during the criteria period, but significantly higher catches are recorded in those years. Consideration may be given to trawler operators who are able to demonstrate a reliance on line caught product prior to the introduction of the permitted species provisions; and
Other – any other special circumstances that prevented a licence holder from meeting the required minimum commercial level during the criteria period.
The purpose of the guidelines was said to be to provide consistency in decision making. It is stated that the decision maker is not bound by the following guidelines and can apply other reasoning to determine a final outcome.
The Policy for the allocation of N4, N10, N1 and S fishery symbols stated that its purpose was to assist in achieving the main purpose of the Fisheries Act 1994 through management of the Queensland east coast net and shark fisheries. The policy was to achieve its purpose by establishing criteria and a decision making process for the allocation of new fishery symbols N4 (1200m offshore net), N10 (tunnel net), N11 (small mesh net) and S (shark) to certain commercial fishing boat licences. The policy referred to an Investment Warning released by the Queensland Government on 11 April 2002, pre-empting a review of management arrangements for the fisheries and fishing operators (both existing and potential) in those fisheries who were warned that any expansion of fishing effort or increased investment after 11 April 2002 may not be recognised in future management arrangements.
The policy stated that provisions allowing for the use of tunnel nets under the existing N1 fishery symbol would cease on 1 July 2009 and a separate fishery symbol (N10) will be required to operate tunnel nets. This will remove the potential for an expansion of effort in this component of the fishery to ensure sustainability. The N10 symbol will also authorise the use of all nets provided for under the N1 symbol in all permitted N1 waters. The N10 symbol when issued will be restricted to either the Great Sandy region or the Moreton Bay region and successful applicants will be required to surrender an N1 symbol before the N10 symbol is written on their licence.
The policy stated that the take of shark has been authorised under all Queensland net and line licences to date and catch limits have not applied. An annual total allowable catch (TACC) of 600 tonnes is to commence on 1 July 2009. The number of net and line licences with authority to take shark at commercial levels will be limited by the requirement to hold a shark fishery symbol. Without a valid S symbol, each licence will be limited to the possession of 10 sharks under a net licence and 4 sharks under a line licence, with the bodies to be kept whole while at sea. This is designed to allow for a small number of sharks to be retained if incidentally caught while fishing for other species.
The policy sets out eligibility criteria based on catch history for the various symbols and special circumstances to be considered by decision makers in applying the eligibility criteria to the applicants. The minimum catch requirements under the policy in respect of the N10 symbol are as follows:
(i)Two annual caches exceeding 1,000kg in the period 12 April 1997 to 11 April 2002
and
(ii)Two annual catches exceeding 1,000 kg in the period 12 April 2002 to 11 April 2008
or
(iii)A total catch exceeding 50,000 kg in the period 12 April 1997 to 11 April 2008
The minimum catch requirements under the policy in respect of the S symbol are as follows:
(i)one annual catch exceeding 1,000 kg in the period 12 April 1997 to 11 April 2002
and
(ii)Three annual catches exceeding 1,000 kg in the period 12 April 2002 to 11 April 2008
The policy also set out special circumstances which decision makers could take into account to give operators special consideration where they could not otherwise meet the catch criteria. The special circumstances were:
a.Logbook clarification – In the case that catch recorded in logbook records received by Primary Industries and Fisheries does not match an operator’s catch records, the applicant may provide supporting documentation to demonstrate error in the data;
b.Event – applicants able to demonstrate that for a continuous period (or periods) of at least three months in the years during the eligibility period no fishing was undertaken under any fishery symbol on the licence because of a specific reason;
c.Recent entrant – an applicant may be given special consideration where they held for a period prior to the investment warning that was insufficient to generate the required minimum catch;
d.Grey mackerel special circumstance relating to an S symbol – where grey mackerel catch history meets certain criteria in recognition of grey mackerel and shark interaction; and
e.Other – any other special circumstance that reduced the capacity of a licence holder to participate in the fishery during the period used in the allocation formula.
.
C1 DECISION
Mr Perry’s material
The show cause letter sent to Mr Perry in respect of his C1 symbol disclosed that the amount of crab taken in the periods outlined in the policy was two (2) kilograms in the period 13 September 2001 to 12 September 2002 and two (2) kilograms for the period 13 September 2004 to 12 September 2005.[12] This did not meet any of the minimum level of catch combinations set out in the policy for the C1 symbol set out above.
[12] Statement of Reasons (SOR) page 6
In his response to the show cause letter Mr Perry stated he had started fishing as a crab fisher and changed to mostly net fishing due to factors such as crab theft, the death of his father and that he was unable to make enough income to support himself and family and his brothers income who had been working with him until recently.[13] He stated that he had two sons who may use this crab fishery as a source of income in the near future[14]. He went on to say that we are from a long line of fishing people on both sides of my family and asked Why should this opportunity be taken away from my children to follow in our families tradition based on generations of history, knowledge and skill. He stated that because fishing is such a low-income job, when most fishermen retire they have in the past been able to sell their licence to help fund their retirement or hand it down to their children. He queried why should we just have these endorsements taken off us for no compensation and why there wasn’t a voluntary buyback scheme instead of just taking endorsements off the professional fisherman. He stated that professional fisherman have suffered a lot from closures, high Australian dollar, rules and regulations, high fuel prices and environmental degradation caused by population increase.
[13] SOR page 15
[14] SOR page 15
In an affidavit sworn by Mr Perry on 8 January 2010[15] he added some additional grounds as to why he should retain his C1 symbol after his father passed away, he took on greater responsibilities with commercial fishing. And this meant he did not need to crab fish. He directed all his energy towards building a successful commercial fishing business, focussed on mesh and tunnel net fishing. It is important he retain his crab symbol so that he is able to live off commercial crabbing when fishing becomes too physically demanding. Crabbing just involves dropping pots and he will be able to continue to do so into his old age. He always intended to return to crab fishing when the physical demands of net fishing become too great. If he is unable to return to crab fishing in the later stages of his working life he will not have any other means of supporting himself and his family. The affidavit also sets out the fishing history of Mr Perry’s family and notes that he is a Quandamooka traditional person.
[15] Exhibit 1
Submissions at the hearing confirmed the above and noted that Mr Perry did not have any crabbing gear. It was stated that the C1 fishery symbol was in the forefront of his mind when things became more strenuous. It was also submitted that Mr Perry would be prepared to accept conditions being placed on the C1 fishery symbol, so that that he could only lease or dispose of the symbol to his sons and lineal descendants. Reference was made to the decision of the Tribunal in Fuchs v Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 475.
Chief Executive’s material
The Chief Executive’s decision of 5 October 2009 noted the matters raised by Mr Perry and that the catch taken under the C1 symbol did not meet the minimum level of fishing activity as defined in the policy.[16] In regard to the special circumstances raised by Mr Perry it was determined that he had failed to meet the consistent level of catch history where there was reliance on a number of fisheries. In regard to the claim that Mr Perry’s children may want to operate in the crab fishery the decision maker stated I do not consider this is a circumstance which prevented you from meeting the policy criteria and that they had determined not to set aside the policy in that regard.[17]
[16] SOR page 20
[17] SOR page 21
The decision maker then considered the ground raised by Mr Perry that licences represent a retirement fund and that endorsements should not be removed without compensation. The decision maker states in that regard “you made a business decision not to access the C1 fishery throughout the criteria period. In addition, Queensland fisheries legislation provides for compensation only where a change to fisheries legislation removes the rights of a commercial sector and reallocates those rights to another sector. The removal of latent effort does not warrant compensation under those provisions.” It is further stated that “retaining latent symbols for subsequent trading would be inconsistent with the intent of the policy as it provides for potential activation of those latent symbols.”
The Chief Executive’s representative made written submissions in response to the affidavit of Mr Perry and in particular in regard to Mr Perry’s wish to increase his access to fisheries as he ages and stated that this cannot be taken into account, as they would equally apply to any other commercial fishers as much as Mr Perry. It is further noted that fishery symbols are transferable and that should Mr Perry wish to change his fishing activity, he is able to purchase a relevant symbol from another commercial fisher in order to do so. Submissions were also made in relation to Mr Perry being an indigenous traditional fisher and that the decisions under review relate to Mr Perry’s activities as a licensed commercial fisher and not as a traditional fisher.
In submissions at the hearing the Chief Executive’s representative stated that there was no commercial crab catch prior to or after the investment warning. It was a completely latent licence and the policy directly targets this type of licence. There were a large number of people applying to keep the symbol who had not used it and who wanted to use it in the future and if the policy had not been applied in those cases it would not have achieved the policy objectives. Mr Perry had been treated fairly and consistently with other licence holders. It was submitted that if the C1 fishery symbol was kept for transfer through the family there was no guarantee that it would be used in the same way and it was inconsistent with the policy to keep it.
Discussion
Mr Perry has held a C1 symbol for a long time and when he first became a commercial fisher he had some reliance on the crab fishery. At that time he did not have access to the use of nets which became available after the passing of his father. As his business grew he concentrated his efforts in other areas and he has not used this symbol in a commercial manner for many years. His retention of this symbol though means that at some future time if he changed his pattern of fishing or he were to lease or sell the symbol, as he is entitled to, then the catch from the use of the fishery symbol could increase dramatically. It is for this reason that the Policy outlined above was developed by the Chief Executive to ensure the threat of detrimental impacts to the fishery and users were dealt with.
Mr Perry cannot retain his C1 symbol based on a comparison of his catch history to the eligibility criteria set out in the policy. Mr Perry did not seek to rely on any of the special circumstances which would explain why he was not able to meet the catch criteria instead raising the future intended use of the fishery symbol by himself and his family and the fact that the symbol was removed without compensation when it should normally form part of the retirement fund of a fisher.
The Tribunal notes that Mr Perry’s family have a tradition of being in the fishing industry and his sons have now joined him in the business and he wishes to be able to pass the symbol to them for their use. He himself said that as he ages he wishes to move from the net fishery to the crab fishery because it is less effort. Mr Perry did not provide any evidence to indicate when he may need to use the C1 fishery symbol in terms of any health concerns which may exist. He also did not provide details of his personal financial circumstances in terms of his current assets and liabilities. It is clear that there is no current reliance on the C1 fishery symbol so its removal now will not create personal hardship for Mr Perry in terms of loss of income nor is there evidence of any investment by Mr Perry in the crab fishery.
The future use that Mr Perry contemplates either in terms of increased effort by him or his sons or the sale of the C1 fishery symbol to help fund his retirement raise the very basis of the policy. That is the activation of latent symbols and so they cannot be grounds to set aside the policy. While Mr Perry is not to receive compensation for the loss of the C1 fishery symbol it is an authority which is subject to resource management requirements which he was not using and the objectives of the Act must take precedence where there is no reliance. The Act is clear that there is no requirement for the payment of compensation in cases such as this[18].
[18] Fisheries Act 1994, ss42A, 42B and 63(7).
The Tribunal notes the submissions made on behalf of Mr Perry in regard to conditions being placed on the symbol to ensure that it would only be used within his family. The C1 symbol is latent and if it is not removed there is the potential for that to be converted to effort. It does not matter who holds the symbol. Mr Perry’s sons are young and there use of the symbol could continue for a very long period of time.
Mr Perry set out his family history and his being a traditional person and while the Tribunal notes this it accepts the submission of the Chief Executive that these matters are not relevant where commercial licences are being dealt with.
The policy has been applied correctly to Mr Perry and there is no evidence that the decision of the Chief Executive is manifestly unfair as he was treated in the same way as other fishers. There is also no evidence accepted by the Tribunal that the removal of the symbol will cause severe personal hardship to Mr Perry.
The decision of the Chief Executive to remove the C1 fishery symbol is confirmed.
L1 DECISION
Mr Perry’s material
The show cause letter sent to Mr Perry in regard to the L1 fishery symbol disclosed that he had no catch under the L1 symbol during the relevant period set out above. Not having met the minimum catch requirements set out in the policy Mr Perry needed to show special circumstances as to why he should retain the fishery symbol. Mr Perry raised the same general matters in regard to his history as a fisher, his family involvement in the fishing industry and the lack of a buyback scheme set out above in relation to the C1 symbol in his show cause response for the removal of the L1 symbol. Additionally, Mr Perry stated that he had been using this endorsement on his licence and had been logging his catch in the net fishery logbook as he didn’t realise there was a separate Line Logbook.[19]
[19] SOR page 16.
Mr Perry stated in his affidavit that the rezoning of fishing areas that occurred in March 2009 has had a significant impact on my business. Until March 2009 50% of the catch I took each week came from areas now marked as the Yellow and Green zones. He states that he had not relied on line fishing in the past as mesh fishing was sufficient to sustain the business. However, since the introduction of the yellow and green zones there has been less catch in the bay. The increased competition outside of the Yellow and Green zones has seen my catch size drop, I estimate by two thirds. Therefore, to supplement my income I have begun to line fish for mackerel. Mr Perry also stated line fishing is less strenuous than net fishing and I would like to turn to it increasingly, as I get older and less physically able.
It was submitted at the hearing that their was no risk of latency being converted to effort as Mr Perry only takes what is necessary for his family and that he fishes in accordance with sustainability principles. Mr Perry in his evidence stated that he has some line fishing equipment valued at around $2,000 for which he renews the lines each year. That he is not a good line fisherman but with more effort will be come better. The same submissions were made in regard to the L1 symbol being returned to Mr Perry with conditions in regard to its disposal as set out above in respect of the C1 symbol
Chief Executive’s Material
The decision maker in her reasons for removing the L1 fishery symbol noted that Mr Perry’s catch history for the L1 fishery symbol did not meet the catch criteria. She then discussed whether consideration should be given to Mr Perry on the basis of a consistent level of catch history for the L1 symbol but failure to meet the minimum catch level because he relied on operating in a number of fisheries during the criteria period. It was determined that this circumstance did not apply because he had not demonstrated a consistent history under the L1 symbol. Mr Perry’s claim that he had entered his L1 catch in his net logbook was also given consideration. The decision maker stated in her reasons for decision that I have reviewed catch records relating to your licence for the criteria period and have found that net fishing (gillnetting and tunnel netting) was entered as the method of capture for all finfish taken under the licence in the criteria period. I have reviewed the species composition and found that all finfish recorded in your logbook have been species commonly caught by net. It was also mentioned that it was a legal obligation to ensure that required information records are kept and submitted to the Chief Executive in the required form and at required timeframes. It was not considered a special circumstance warranting that the policy be set aside.
The question of compensation for the removal of the symbol and the claim that licences represent a retirement fund for most retiring fishers was also considered by the decision maker. It was stated that Mr Perry had made a business decision not to access the L1 fishery throughout the criteria period and that compensation was only payable where a change to fisheries legislation removes the rights of a commercial sector and reallocates them and the removal of latent effort does not warrant compensation. It was determined that these grounds did not raise special circumstances.
In the Chief Executive’s written submissions consideration is given to Mr Perry’s claim that he has been adversely affected by the Moreton Bay Marine Park rezoning and that he needs access to these fisheries to remain viable. It was submitted that the impact of the rezoning should not be a relevant factor to consider in deciding whether or not to amend the licence. This was on the basis that, the rezoning process was undertaken by legislation administered by the Department of Environment and Resource Management and there was a structural adjustment package associated with the rezoning. Further, that if consideration of this factor were to be taken into account it would apply to all other commercial fishers operating in Moreton Bay. To grant access to these fisheries on the basis of this lost fishing ground would dramatically increase the number of symbols that were approved for licensed fishers operating in Moreton Bay. The Chief Executive submitted that this would result in a significant increase of fishing effort in Moreton Bay that would be economically unsustainable and contrary to the intent of the policy. The Chief Executive submissions mentioned above in regard to Mr Perry’s wish to increase his access to the fishery as he ages and his being a traditional fisher also applied to the L1 fishery symbol.
The Chief Executive made further submissions at the hearing. It was noted that consideration could be given where a fisher had taken spotted mackerel previously by net but would now be required to take them by line as they could no longer be taken by net. In Mr Perry’s case there was no reliance on the L1 symbol to take spotted mackerel. That the policy was intended to target licences such as Mr Perry’s with very low return and his was one of the least active licences. There had been a large number of fishers who said they intended to rely in old age on the symbol and this was inconsistent with the policy. If Mr Perry were to keep the symbol for transfer through his family there could be no confidence that there would not be increased effort.
The Chief Executive provided a table at the hearing which set out Mr Perry’s catch for the period 1990 to 2010 in terms of annual catch and how it was caught; number of days fished and catch per day.[20] This showed a total catch of 9,975 kg in 2007 and 3033kg in 2010. It is also noted that Mr Perry fished for 118 days in 2007 and 28 days in 2010. The only L1 catch mentioned on the catch history was 15 kg in 1991 and 165 kg in 2007.
[20] Exhibit 4
DISCUSSION
Mr Perry had no reliance on the L1 fishery symbol during the criteria period and the special circumstance he raised in regard to putting his L1 catch in his net logbook was not accepted by the decision maker. That matter was not pursued by Mr Perry in the review process. The grounds that he has raised again relate to his and his children’s future use of the symbol in terms of increased effort and as part of his retirement fund. He has also raised the effects of the Moreton Bay Marine Park rezoning on his need to utilise the L1 fishery. He states that his catch has fallen by two thirds as a result of the rezoning.
Mr Perry has not had any reliance on the L1 fishery symbol and while he states that he has some fishing equipment he also acknowledged that he is not a good line fisherman. His reliance has been on net fishing. For the same reasons mentioned above in regard to the C1 fishery symbol the decision of the Chief executive is not manifestly unfair as Mr Perry has been treated in the same way as other fishers. There is no reason to allow Mr Perry to retain the symbol to enable him to activate it in the future where he has shown no reliance to date.
The Chief Executive submitted that the affect of the Moreton Bay Marine Park rezoning should not be taken into account as there was an adjustment package which affected fisherman had available to them and that it would need to have been applied to all other fisherman in Moreton Bay. The Tribunal was not provided with any material in regard to adjustment packages for Mr Perry and notes that it would not be manifestly unfair not to take the rezoning into account as the policy had been applied in the same way to other fishers.
Clearly changes such as this are the things which can result in fishery symbols which are latent being converted to effort and so this again goes back to the reason why the policy was created. While Mr Perry’s catch appears to have declined so has the number of days he fished and it is then not clear that the reduction in catch is as a result of the zoning changes. The Tribunal notes that Mr Perry has raised the same matters in regard to the N10 fishery symbol which is discussed below and that he had substantial catch under that fishery symbol. In terms of enabling Mr Perry to meet his personal needs it is preferable that he do so from a source that he has previously used such as tunnel netting instead of activating a purely latent source such as the L1 fishery symbol.
The Tribunal is not satisfied that the removal of the L1 fishery will cause Mr Perry severe personal hardship as there are alternative ways of him dealing with any loss of income as a result of the Moreton Bay Marine Park rezoning.
The decision of the Chief executive to remove the L1 fishery symbol is confirmed.
N10 Decision
Mr Perry’s Material
The Chief Executive advised Mr Perry of changes in the net fishery by letter dated 3 April 2009. The letter also set out his catch history using tunnel nets as follows:
Year 97-98 98-99 99-00 00-01 01-02 02-03 03-04 04-05 05-06
Catch 4987 3970 4346 1713 1580 1855 390 380 0With a total catch of 19,521. There was no catch in the periods 05-06, 06-07 and 07-08
Mr Perry made application for an N10 symbol on 27 April 2009 and stated on the application that he met the catch criteria and did not put any material before the decision maker in regard to special circumstances.
In his notice of appeal against the N10 decision Mr Perry raised the following reasons as to why the decision of the Chief Executive was wrong:
a.I am a person of indigenous descent from this area;
b.He was always brought up to take what is available to catch and not to be greedy;
c.I have small amounts on my log books as I try not to target too much of one species;
d.I have been working by myself for a few years, so my catch has been smaller.
e.I have 2 sons and a daughter they may be working with me in the future, one of them is a master fisherman and the others are 16 and 13.
f.Due to the difficulty young people have finding jobs; I will need these symbols to enable me to provide for my family.
Mr Perry stated in his affidavit[21] that the tunnel net I have requires two people to handle it. In 1985 I had sufficient employees to operate the tunnel net. At that time his brother’s Allan and Simon Perry were employed by the business. He further states that in 1994, his brother ceased working with him on a permanent basis and his sons were too young to assist him. Also, I could earn enough money mesh net fishing or beach fishing to support himself. So he stopped using the tunnel net. This explains why I have not met the quotas set in the new licence system in the past. He further states that however with the introduction of the marine park zones I can no longer support myself and family through mesh net fishing alone. With only mesh nets I will not be able to take a full catch to the market. With a tunnel net licence, I will be able to catch sufficient to meet my family’s living expenses and meet the required quotas for a licence. Also in 2009, Simon again commenced full-time fishing and is able to assist me with the tunnel net. The tunnel net, which I have used in the past, enables me to compensate for the diminished catches produced by the marine park zones; it also allows me to target differing species of fish and facilitates larger catches of those species.
[21] Exhibit 1
Submissions were made at the hearing that the tunnel net apparatus was used extensively in the 1990s. In 2004 his brother left and its use stopped as the fishery regulations required that two people use it. Mr Perry had been able to make ends meet without the tunnel net and it was only after Mr Perry’s sons came to work with him that he could use the tunnel net again. He was not seeking to make a massive catch and he fishes to what is needed, It is clear that Mr Perry has used the tunnel net in the past and he would retain and would use it in a sustainable way. The drop in catch was when his brother left and he was now back.
Mr Perry stated in oral evidence at the hearing that he had last used the tunnel net in 1996/97.That he had not been fishing as much in Moreton Bay using this licence. That his wife had been working and beach netting was the main source of fishing income. With the increase of population on the beach there were more restrictions in the areas he could fish. He said that after his brother left he got another crew member who did not have experience. Mesh netting was easier for us with tunnel netting one mistake and you could lose the whole catch. With tunnel netting in one or two days you could catch plenty. His sons have seen tunnel netting but have never done it and he will teach his sons how to do it. His sons have all their lives in front of them their futures. There was less days required for fishing using the tunnel nets. With the tunnel you catch more mullet less whiting and the mesh targets whiting.
The Chief Executive’s Material
The decision maker noted in the decision notice that the catch taken under Mr Perry’s N10 fishery symbol was not sufficient to meet the minimum level of fishing activity for the allocation of the N10 symbol.[22] In considering whether to set aside the policy the decision maker noted that Mr Perry had taken no catch using tunnel nets in the last three criteria years, and less than 400kg in the two years preceding them. The decision maker concluded that given there is no evidence that the licence has been used to any significant level in the last five years of the criteria period I do not believe you will suffer personal hardship as a result of the decision. While I accept that you were involved in the tunnel net fishery in the past it is clear from your logbook records that this is no longer the case.
[22] SOR page 22
The Chief Executive’s written submissions in regard to the Moreton Bay Marine Park rezoning discussed above also apply here. It was submitted that the change in fishing operations which has occurred with the tunnel net equally applies to many other commercial fishers and that ultimately the decision to change fishing methods was a matter of Mr Perry’s own choice. It is stated that Mr Perry could have sought the assistance of another person to continue the tunnel netting operation; however he instead made a business decision to change his fishing operation.
In submissions at the hearing it was stated that the criteria in respect of the N10 fishery symbol was set high to cut back the level of use of tunnel nets to a level which was sustainable. This captured the operators with strongest reliance on the symbol as those who would be most effective. It is clear that Mr Perry had reliance on the symbol prior to the investment warning but not after it. He states that he had adapted to net mesh fishing to make his living. He made a commercial decision and was able to sustain his family. The decision is not manifestly unfair nor will it cause substantial economic hardship. Mr Perry’s indigenous lineage is noted but these policies deal with commercial licences which do not operate based on lineage.
Discussion
Mr Perry had substantial catch history with tunnel netting prior to the investment warning in respect of tunnel netting and met the catch criteria for the period prior to the investment warning. There was a change in his fishing practices after that time and his use of tunnel netting diminished and then ceased in the 2005/2006 year.
Mr Perry has stated that he stopped using the tunnel net as a result of the departure of his brother, Simon Perry from the business and the requirement that this type of net be operated by two people. Mr Perry stated that he took on another employee but it was easier to use other types of netting as he could lose a whole catch with one mistake when tunnel netting. The circumstances raised by Mr Perry explains why he changed his pattern of use of the tunnel net but it does not fit within the Event special circumstance as he continued to fish using other types of nets.
The Tribunal recognises the skill that is necessary for the use of the tunnel net and accepts that if Mr Simon Perry had have continued to fish with Mr Perry then it is probable that he would have continued to use the tunnel net. There was clear reliance on the tunnel net with catches exceeding 1,000 kg in all years between 1997 and 2002. The Chief Executive stated that Mr Perry could have brought in another employer to enable the tunnel net to be used. The Tribunal accepts Mr Perry’s evidence that this form of netting is quite difficult and requires a certain level of expertise to operate successfully and there was a risk of losing his catch due to the lack of experience of a new employee. This then is a sufficient reason to explain why Mr Perry did not meet the catch criteria and is a special circumstance in the Other category. This circumstance was not made known to the decision maker and it would be manifestly unfair not to take it into account in the decision. It is clear that the reason Mr Perry changed his pattern of use of the tunnel was not a commercial decision but the fact that his brother Mr Simon Perry was no longer able to assist him with the use of the apparatus and he was not able to find an alternative employee skilled in the use of the tunnel net.
Mr Perry has also raised the issue of the Moreton Bay Marine Park rezoning as a reason why he now needs to use tunnel netting to ensure he has sufficient catch to provide for his family. The Chief Executive has argued that there was an adjustment package attached to the rezoning and it affected other fishers and they should all be treated consistently and so this should not be taken into account. If this was the only ground raised by Mr Perry then the Chief Executive’s argument would be accepted by the Tribunal. Here though there is a special circumstance available to Mr Perry which has been accepted by the Tribunal and so it is for that reason that the Tribunal will amend the decision of the Chief Executive.
The Tribunal will set aside the decision of the Chief Executive in regard to the granting of a N10 fishery symbol to Mr Perry. The Tribunal will grant Mr Perry a N10 fishery symbol to be attached to his commercial fishing licence 10110 with boat mark FWTB subject to the condition that Mr Perry first surrender an N1 fishery symbol to the Chief Executive and that the N10 fishery symbol may be only be used in the Moreton Bay region.
S DECISION
Mr Perry’s Material
The Chief Executive’s letter of 3 April 2009 mentioned above provided details in regard to the S symbol and set out Mr Perry’s catch history for shark as follows:
Year 97-98 98-99 99-00 00-01 01-02 02-03 03-04 04-05 05-06 06-07
Catch 257 48 263 66 262 751 168 467 1,408 787
Year 07-08
Catch 688Mr Perry made application for an S fishery symbol on 27 April 2009 stating that he had fulfilled the catch criteria. Following the refusal by the Chief Executive to issue Mr Perry with an S fishery symbol he stated the same grounds in regard to the appeal in respect of the S symbol as he did for the N10 symbol, which are set out above.
Mr Perry stated in his affidavit[23] that sharks are very plentiful in the bay and are a species that are in higher number in the summer months and are caught even when not targeted. As there is greater competition from commercial fishing business in the bay I will have to fish for shark to compensate for the decrease in my fishing catch. Due to the ease at which I can catch sharks, I risk going over my set quota without a licence. Over the last few years my quota has been lower due to a drop off in the amount of mackerel found in the bay area. Mackerel attract sharks and their reduced numbers have reduced the numbers of shark I have caught. Without using a tunnel net, this has meant my catch of sharks has been significantly lower. If I have a tunnel net licence, I will meet the higher quotas of shark required to maintain a Shark licence.
[23] Exhibit 3
It was submitted at the hearing that Mr Perry does not target shark day in day out but if they are in abundance he will target them. There is a concern that he can’t get to market every day. Consistent with sustainability he has difficulty throwing things back.
Chief Executives Material
The Chief Executives notice of decision[24] in respect of the S fishery symbol notes that the catch taken under Mr Perry’s licence and recorded in his commercial logbooks for the criteria period is not sufficient to demonstrate a minimum level of fishing activity for the allocation of the S symbol as defined under the policy. While Mr Perry had not requested consideration of any special circumstances, the decision maker looked at whether the grey mackerel or recent entrant special circumstances may apply and found that the licence did not meet these criteria. The daily catch levels of shark were also checked to assess the likely level of financial impact of not granting an S Symbol. It was noted that Mr Perry had not taken more than 25kg of trunked shark in any fishing trip over the last three years and that the majority of his daily catches were in the order of less than 25kg whole weight. The decision maker stated that it appeared to them that the catch levels you have demonstrated will be catered for under the shark bycatch provisions, where any net fisher without an S symbol can be in possession of a maximum of ten sharks. I therefore do not believe that this decision will cause you severe financial hardship.
[24] SOR page 24
The Chief Executive’s representative submitted at the hearing that there had been a catch quota introduced in the southern area of 120 tonne per year of shark as part of the review process. The number of symbols granted had to ensure that each would be viable at the limit of the catch and so required previous reliance on the shark fishery. The catch for Mr Perry was quite low compared to others who had set up operations to catch shark. The department acknowledges that there may be accidental excess catch and that if operations change then Mr Perry could look to obtain a symbol.
Discussion
Mr Perry has some catch of shark in each of the years in the criteria period but only in one year did he meet the catch criteria quota of 1,000 kg. Mr Perry has stated that he is at risk of going over the bycatch limit unless he has an S fishery symbol. The Chief Executive’s analysis shows that Mr Perry takes no more than 25 kg a day and even without an S symbol he is able to take up to 10 sharks with a net licence. Mr Perry according to his own submissions does not target shark but they are caught as a result of his other fishing activities. The Chief Executive has put a catch limit on the shark fishery and the number of S fishery symbols has been limited to ensure that those with the symbols will be viable.
As Mr Perry has not previously been reliant on shark and his continuing catching of shark has been taken into account in the bycatch provisions the Tribunal is not satisfied that the decision of the Chief executive was manifestly unfair. Mr Perry has not shown commercial reliance on shark and so the decision will cause him severe personal hardship.
The Tribunal confirms the decision of the Chief Executive in regard to the S fishery symbol.
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