Port Ashgrove Pty Ltd v Chief Executive, Department of Employment, Economic Development and Innovation
[2010] QCAT 210
•3 March 2010
CITATION:Port Ashgrove Pty Ltd v Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 210
| PARTIES: | Port Ashgrove Pty Ltd |
| v | |
| Chief Executive, Department of Employment, Economic Development and Innovation |
| APPLICATION NUMBER: | FHR051-09 |
| MATTER TYPE: | General Administrative Review matters |
| HEARING DATE: | 3 March 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr Darryl C Rangiah SC, Jim Allen, Peter Wulf |
| DELIVERED ON: | 3 March 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
| CATCHWORDS : | Fisheries - transitional provisions of QCAT Act - decision refusing to add N4 symbol - exercise of discretion - decision affirmed. |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Port Ashgrove Pty Ltd |
| RESPONDENT: | Chief Executive, Department of Employment, Economic Development and Innovation |
REASONS FOR DECISION
On 24 June 2009, a delegate of the Respondent decided, pursuant to s.63(2) of the Fisheries Act 1994, to refuse to amend the Applicant’s licence to add a N4 fishery symbol. The Applicant, Port Ashgrove Pty Ltd, appealed against that decision by filing a notice of appeal in the former Fisheries Tribunal.
The grounds of appeal were those set out in s.196(1) of the Fisheries Act 1994, namely that the decision is contrary to the Act, it is manifestly unfair and it will cause severe personal hardship to the Applicant. Section 196(1) has since been repealed, but those grounds have been replicated in s.185(i).
The hearing of the Applicant’s appeal commenced before the Fisheries Tribunal on 2 November 2009. In the course of that hearing it emerged that further evidence would have to be obtained. The hearing was then adjourned to a date to be fixed with directions that the parties file further affidavits.
The Fisheries Tribunal was abolished on and from 1 December 2010 by s.247(1) of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”).
As the Fisheries Tribunal had started to hear the appeal on 2 November 2009, but had not started to consider evidence for the purpose of making its final decision, the proceeding is a “pending proceeding” within the meaning of that expression in s.245(b) of the QCAT Act. It follows that under s.256 of the QCAT Act the proceeding is taken to be a proceeding before QCAT, and QCAT has the jurisdiction to deal with the matter. Section 271(1) has the effect that QCAT must deal with the matter the subject of the existing proceeding under the QCAT Act or the Fisheries Act.
A number of amendments have been made to the Fisheries Act to take account of the requirement that reviews of decisions are now to be determined by QCAT. Section 191(1) of the Fisheries Act allowed the Fisheries Tribunal to be constituted by chairperson and either one or two other members. When the Fisheries Tribunal commenced hearing the appeal against the Respondent’s decision, the Tribunal was constituted by the chairperson and one other member. Section 191 has now been repealed and s.186(1) now provides that the Tribunal is to be constituted by one legally qualified member and two other QCAT members.
The transitional provisions of the QCAT Act and the amendment of s.186(1) of the Fisheries Act leave it uncertain as to whether it is enough for the two members who constituted the Fisheries Tribunal (who are now members of QCAT) to hear the review, or whether three members of QCAT are required. As a matter of precaution, and with the consent of the parties, it was decided that the preferable course was to commence a fresh hearing of the application with the Tribunal to be constituted by three members.
The delegate’s decision of 24 June 2009 was made pursuant to a policy entitled “Policy for the allocation of N4, N10, N11 and S fisheries symbols” (“the Policy”). The object of the Policy is to protect the future sustainability of sharks and other inshore fin-fish by limiting the number of fishers taking particular species or using particular fishing gear.
On 11 April 2002 the Queensland Fisheries Service released an investment warning pre-empting a review of management arrangements for the Queensland east coast net fisheries and the fisheries for spotted mackeral, shark and related fisheries. Existing and potential operators in those fisheries were warned that any expansion in fishing effort or increased investment after 11 April 2002 may not be recognised in future management arrangements for the fisheries. The Policy was made against that background.
The Policy aims to achieve its purpose by establishing criteria and a decision making process for the allocation of new fishery symbols N4 (1,200 M off-shore net), N10 (tunnel net), N11 (small mesh net) and S (shark) to certain commercial fishing boat licences.
The N4 fishery symbol provides for the use of nets of up to 1,200m in off-shore waters deeper than 20m. The Policy aims to reduce the number of licences permitted to operate using nets of that length. It does so by providing for a maximum of five N4 fisheries symbols to be issued in the first instance. The Policy indicates that an applicant for a N4 symbol must have a boat specified on the licence of at least 13m in length and that the licence must meet the criteria to have an S symbol written on it. The Policy states that:
“If more than five applications are received and meet the criteria for the issue of an N4 symbol, then the licences would be ranked on the basis of the total catch of shark and grey mackerel … taken under the licence in the period from 12 April 1997 to 11 April 2008. N4 symbols will be allocated to the top five ranking licences.
If … a licence holder elects to apply for reconsideration of that decision, or the licence holder subsequently appeals the decision, and the outcome of that reconsideration or appeal is that the licence should have been ranked higher than the fifth highest ranking licence, then issuing the licence holder an additional N4 symbol will not be inconsistent with this Policy.”
The Policy goes onto say:
“Special consideration will be given to operators who can demonstrate a special circumstance which has limited the operator’s capacity to participate in fishing operations during the years included in the criteria for the relevant symbol.”
The Policy also indicates that the special circumstances which will be considered include, but are not limited to, particular circumstances specified in the Policy. One of the circumstances described is “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”.
There were 14 applications for N4 fishery symbols. When making his decision the delegate noted that the Applicant had taken no catches of shark under its licence during any of the years from 1997/98 to 2007/08. The delegate decided that the Applicant’s licence did not rank in the top five and he decided not to grant a N4 symbol.
The delegate also noted that the Applicant had asserted the existence of certain special circumstances concerning matters that were beyond the Applicant’s control that affected its ability to fish. The Applicant had claimed that if these special circumstances did not exist it would have taken significant quantities of shark during the criteria period. The delegate said:
“Should I try to establish the catch that you might have taken had the special circumstances not prevailed it stands to reason that I would have to offer the same opportunity for other licences to demonstrate reasons why their catch was zero or low in certain years (their special circumstances). It is for this very reason was drafted to take into account only catches recorded in log books”.
The delegate’s reasons indicate that he took the view that only catches recorded in log books could be taken into account. The reasons suggest that special circumstances that limited the ability of a licence holder to take fish during the criteria period could not be taken into account in the ranking process in respect of the N4 symbol or in otherwise determining whether a N4 symbol should be granted. That view is contrary to the specific provisions set out earlier in the Policy concerning special circumstances. The Policy clearly indicates that special circumstances will be taken into account. In that respect, the decision did not accord with the Policy and the decision was manifestly unfair.
In addition, it should be noted that s.63(2) of the Fisheries Act gives a broad discretion to the Respondent. It was not open to the delegate to circumscribe the discretion by finding that it was not open to take into account matters relevant to the exercise of the discretion. Further, it was not open to the delegate to approach the decision as if he were bound to apply the Policy inflexibly by only issuing five N4 symbols in the first instance. It was certainly open to give that stipulation in the Policy considerable weight, but it could not bind the exercise of the discretion. In these respects, the decision was contrary to the s.63(2) of the Fisheries Act.
The Applicant has made out two of the grounds of review set out in s.185(1) of the Fisheries Act. That does not, however, mean that the Applicant is automatically entitled to a different decision.
The present application is within the “review jurisdiction” of QCAT within the meaning of that expression in s.17(1) of the QCAT Act. Section 19(c) provides that in exercising its review jurisdiction, QCAT has all the functions of the decision maker for the review of all decision being reviewed. Section 20(1) provides that the purpose of the review of a reviewable decision is to produce “the correct and preferable decision”. Section 20(2) provides that the Tribunal must hear and decide a review of the reviewable decision by way of a fresh hearing on the merits.
Section 24 provides that the Tribunal may confirm or amend the decision or set aside the decision and substitute its own decision or set aside the decision and return the matter for reconsideration to the decision maker with appropriate directions.
The effect of these provisions when taken with s.185(1) of the Fisheries Act appears to be that:
the Tribunal must first decide whether one or more of the grounds of review set out in s.185(1) has been established;
if one or more of those grounds has been established, the Tribunal must then stand in the shoes of the decision maker and decide for itself what is the “correct and preferable” decision.
Turning to the second stage of the process, the issue for the Tribunal is whether the Applicant’s licence should be amended to add a N4 fishery symbol. In making that decision it is relevant to take into account and give weight to the Policy, including the stipulation that a maximum of five N4 fishery symbols will be issued in the first instance and that if, on appeal, the outcome is that the licence should have been ranked higher than the fifth highest ranking licence, then issuing the licence holder an additional N4 symbol will not be inconsistent with the Policy.
It is open to the Tribunal to decide, in the exercise of the discretion under s.63(2), that the Applicant’s circumstances are such that a N4 fisheries symbol ought to be issued to the Applicant.
At this stage it is necessary to turn to the particular circumstances relied upon by the Applicant as showing, despite its lack of any catch history of shark and grey mackerel that it ought to be granted an N4 symbol. The Applicant relied upon a number of matters:
The Applicant had an intention, prior to the issuing of the investment warning to enter the shark fishery, and had taken steps to put its plan into action;
·A series of breakdowns and subsequent repairs of the Applicant’s boat occurred between 2002 to 2004. These prevented the Applicant from converting its trawler Kenandale into a shark net boat. The repairs cost the Applicant in excess of $300,000 and the Applicant needed to continue trawling to recoup the losses before it was able to convert the boat to a shark boat;
·The Applicant’s N8 symbol was removed by Queensland Fisheries Service from the Applicant’s licence in December 2004. The Applicant had appealed to the Fisheries Tribunal against that decision. Before the appeal was heard, the delegate reconsidered the decision and decided to reinstate the N8 symbol. It was reinstated in June 2006. These matters go to explaining the lack of history of catches of sharks and rays in that period;
·The Applicant was approached by the Queensland Fisheries Service in October 2006 requesting that it consider an exchange of the N8 symbol for an N1 symbol as the N8 symbol was the only one in existence. The Applicant’s director and shareholder, Kevin Bostock, indicates that he only agreed to exchange the symbols because it would increase his catch areas in the sense that he could now operate within the 3 mile nautical limit as well as outside it. He understood that he would still be able to fish with 1,200m of net in waters over 20m deep. He had no reason to agree to the change if he could not do that;
·The decision to refuse the N4 fishery symbol will mean that the Applicant’s catching capacity is halved, as it can now only use 600m of net in waters over 20m in depth under the S symbol. The Applicant says it cannot economically operate a shark fishing business with only 600m of net because it has the capacity to have a 16m vessel attached to the licence and its operating costs are much higher than those of a small in-shore fishing operation. After the N8 symbol was removed in 2004, the Applicant sold Kenandale in February 2005 because it could not afford to have the boat idle. The licence was then placed in a “no boat” situation on the basis that it could be reactivated at a later date;
·In 2005 another company of which Mr Bostock was a shareholder and director sold another licence and another boat called the Gulf Star to the Commonwealth under the Great Barrier Reef Marine Park Structural Adjustment Programme. Mr Bostock signed an agreement that he would not participate in any shark fishing operations in Queensland waters. As a result, Mr Bostock and the Applicant have been unable to participate in the shark fishery since 2005.
The Applicant argued that the shark fishing history for the Gulf Star for the period from February 2002 to October 2004 should be applied for the purposes of the present application. It was suggested that the Gulf Star had taken in excess of 50 tonnes of shark per year. It is argued that if this level of catch were applied to the criteria under the Policy then the Applicant’s licence would be one of the top five ranked licences and that the Applicant should be granted an N4 symbol on that basis.
In making its decision, it is necessary for the Tribunal to give weight to the Policy. The object of the Policy is to reduce the fishing pressure on shark stocks. One of the ways in which this is done is limiting the number of operators who are able to use 1,200m nets. The Policy indicates that licences that had operated using 1,200m nets had been responsible for the catch of significant quantities of shark and grey mackerel in the past. Limiting the number of licences that could use nets of that length would limit the potential for an increase in the commercial harvest of shark and grey mackerel.
In the Tribunal’s opinion, the environmental impacts discussed in the Policy concerning the use of 1,200m nets are significant. They should be given considerable weight in deciding whether the Applicant should be granted an N4 symbol.
It is also relevant that the Applicant has no demonstrated catch history in the shark fishery at all. The Applicant did not meet the catch criteria for the S symbol or the N4 symbol. Despite this, a delegate of the Respondent was willing to issue the Applicant with a S symbol that allows it to target shark. The circumstances concerning the breakdowns and repairs of Kenandale and the removal of the N8 symbol were taken into account by the delegate in the decision to grant an S symbol to the Applicant. The Applicant is entitled, under its S and N1 symbols, to use nets of up to 600m in length to target shark. It is relevant that the Applicant is not left without the ability to target shark even without a N4 symbol.
Although the Applicant contended that it could not viably target shark using 600m nets because of the costs involved in running a 16m boat, no reason was suggested why a smaller boat could not be attached to the licence.
Mr Bostock made a commercial decision to sell the licence to which Gulf Star was attached and to enter into an agreement not to fish for shark in Queensland waters. He must have thought, at the time he entered the agreement, that it was in his and his company’s interests to do so. The Applicant’s consequent inability to fish for shark should not be taken into account as a matter supporting the grant of a N4 symbol.
It is speculative for the Applicant to suggest that if it had retained the N8 symbol it would have been entitled to the grant of a N4 symbol. There was never any guarantee that it would have continued to be able to fish under the licence in the same way once the management arrangements foreshadowed in 2002 were put in place.
Further, it is speculative to assume that if the Applicant had used Kenandale to fish between 2002 and 2006, it would have caught the same amount of shark as had been caught when fishing from Gulf Star between 2002 and 2004. And even if the Gulf Star’s level of catch were attributed to Kenandale, that could only be relevant for the four years from 2002 to 2006 when the ability of the Applicant to fish under the licence was affected by reasons outside its control. It may be noted that the top five ranking is to be determined under the Policy by the aggregate catches over the period of 11 years from 1987 to 2008. It is speculative to suppose that the Applicant’s licence would have been ranked in the top five, or anywhere near it, on the basis of the imputed fishing history in the four years from 2002 to 2006.
Finally, the Tribunal is not satisfied that the Applicant has demonstrated such a commercial reliance upon shark fishing that it is appropriate to disregard the Policy and grant the Applicant a N4 symbol despite its licence not being ranked in the top five. In appropriate circumstances it might be possible to depart from this aspect of the Policy, but these are not sufficiently compelling circumstances.
The Tribunal is of the opinion that the objectives of the Policy outweigh those matters that support the grant of an N4 symbol to the Applicant. The decision under review will be confirmed.
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