Putman v Chief Executive, Department of Employment, Economic Development and Innovation
[2011] QCAT 311
•20 May 2011
| CITATION: | Putman v Chief Executive, Department of Employment, Economic Development and Innovation [2011] QCAT 311 |
| PARTIES: | Christopher Putman |
| v | |
| Chief Executive, Department of Employment, Economic Development and Innovation |
| APPLICATION NUMBER: | FHR029-09 FHR071-09 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 11 February 2011 |
| HEARD AT: | Hervey Bay |
| DECISION OF: | Peter Wulf, Member Professor Adrian Ashman, Member Elizabeth Benson-Stott, Member |
| DELIVERED ON: | 20 May 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The Department’s decision of 24 July 2009 to amend Licence Number 14996 with Boat Mark FMLK to remove the C1 symbol is confirmed. The Department’s decision of 14 August 2009 to refused to write an S symbol on Licence Number 14996 with Boat Mark FMLK is confirmed. |
| CATCHWORDS: | Fisheries – Crab – Shark – Investment warning – Catch history – Multiple licences and symbols – Family business – No special circumstances |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Christopher and Mrs Penny Putman |
| RESPONDENT: | Chief Executive, Department of Employment, Economic Development and Innovation represented by Mr Mark Lightower (by telephone) |
REASONS FOR DECISION
Christopher Putman has appealed against two decisions of a delegate of the Chief Executive, Department of Employment, Economic Development and Innovation dated 24 July 2009 and 14 August 2009. The first decisions was to amend Mr Putman’s primary commercial fishing boat licences 14996 with boat mark FMLK by removing the C1 fishery symbol pursuant to s 63(2) of the Fisheries Act 1994 (the Act).
The second decision dated 14 August 2009 was the refusal of the Department to write an S fishery symbol on Mr Putman’s primary commercial fishing boat licences 14996 with boat mark FMLK pursuant to s 63(2) of the Act. The Department made an original decision on 1 June 2009 with respect to the “S” symbol and a subsequent decision on 10 July 2009. Mr Putman requested that the decision be again considered and a final decision was made on 14 August 2009. This is, therefore, the final decision being reviewed.
GENERAL MATTERS RELATING TO QUEENSLAND FISHERIES POLICY
These appeals relate to two Policy documents adopted by the Department relating to various fisheries in Queensland and the management of those fisheries.
The first decision was made consistent with a written policy entitled “Policy for the Removal of Excess Fishing Capacity in Queensland’s Line, Crab, Beam Trawl and Eel Fisheries” (“the Crab Policy”) adopted by the Department on 18 July 2008. The Crab 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 Crab 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.
The Crab Policy was made against the background of an Investment Warning that was issued on 12 September 2003 which advised that any further investment in the Queensland Mud and Blue Swimmer Crab Fishery may not be acknowledged in respect of future access to the fishery. The investment warning was made because of concern that the activation of previously underutilised licences were likely to adversely affect the sustainability of stocks in that fishery. The investment warning notified people with a current interest or considering investing in any of these fisheries that increases in their level of catches or fishing effort might from that time not be recognised in future management arrangements.
The second decision was made pursuant to a written policy adopted by the Department on 2 April 2009 entitled “Policy for the allocation of N4, N10, N11 and S fishery symbols” (“the Shark Policy”). The Shark Policy aims to manage the Queensland east coast net and shark fisheries and 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.
The Shark Policy was made against the background of an Investment Warning that was issued on 8 April 2002, warning commercial fishers and potential investors that future catches and future investment in certain fisheries would not be recognised in long-term management arrangements that were being developed. The warning concerned the East Coast net fishery, the fishery for spotted mackerel and the fishery for sharks and other related species. The investment warning notified 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.
It is not the Tribunal’s role to second-guess the adoption of either of the Policies and/or the contents 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 either of the policies.
[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 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.
In this case, Mr Putman has argued that the decisions were manifestly unfair and will cause them severe personal hardship.
For the purpose of this decision, it will be split for both the removal of the C1 symbol and the refusal to grant an S symbol.
C1 SYMBOL
Under the Policy, the minimum commercial level of catch for the C1 fishery requires that the holder has taken:
“Crab Fishery – C1
250kg or more of crab taken under C1 symbol in three of the following four periods:
13 September 1999 to 12 September 2000
13 September 2000 to 12 September 2001
13 September 2001 to 12 September 2002
13 September 2002 to 12 September 2003
OR
1500kg or more of crab taken under a C1 symbol in the period:
13 September 1999 to 12 September 2003
AND
500kg or more of crab taken under a C1 symbol in any one of the following periods:
13 September 2003 to 12 September 2004
13 September 2004 to 12 September 2005
13 September 2005 to 12 September 2006
13 September 2006 to 12 September 2007
OR
1000kg or more of crab taken under a C1 symbol in the period:
13 September 2003 to 12 September 2007”
Where the minimum criteria are not met, the Policy makes provision for special circumstances affecting the licence holder’s usual fishing pattern to be considered by the decision maker. The guidelines for the application of special circumstances acknowledge that licence holders might have specific reasons why they were unable to meet the minimum catch criteria. The guidelines require decision makers to decide whether special circumstances warrant the requirements of the Policy being set aside and, if so, what criteria should be used in place of the minimum criteria.
The guidelines set out examples of types of special circumstances that may commonly arise, but these are not intended to be exhaustive. These types of special circumstances with respect to the C1 fishery under the Policy include:
(a)logbook clarification – where supporting documents show that there are errors in the recording of catches in logbooks;
(b)event – where no fishing activity was undertaken under any fishery symbol during a particular period because of a specific reason out of the control of the operator, such as illness and damage to or destruction of a vessel;
(c)recent entrant – where a licence holder has not met the entry criteria because he or she did not hold the licence or fishery symbol long enough to generate the required catch;
(d)multi-endorsed and diversified fishing operations – where a licence holder has a consistent level of catch history for a fishery symbol, but has failed to meet the criteria because he or she relied upon operating in a number of fisheries; and
(e)other circumstances for all fisheries symbols – any other special circumstances that prevented a licence holder from meeting the required minimum commercial level during the criteria period.
When making an assessment of the catch data for Mr Putman’s licence, the following is observed, the catch history shows:
(a)For the first period, this being 13 September 1999 to 12 September 2003, the licence had a total catch of 104kg, 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
(b)For the second period, this being 13 September 2003 to 12 September 2007, the licence did not have any catch, therefore below the 1,000kg required in the whole period with no period meeting the minimum requirement of 500kg:
Mr Putman’s licence does not satisfy the criteria under the Policy for either period.
S SYMBOL
Under the Shark Policy, a fisher must demonstrate a minimum catch of shark under a line or net fishery symbol that meets two sets of criteria, those being:
(a)One annual catch exceeding 1,000kg in the period 12 April 1997 to 11 April 2002;
and
(b)Three annual catches exceeding 1,000kg in the period 12 April 2002 to 11 April 2008.
Similar special circumstances exist under the Shark Policy as contained within the Crab Policy.
Mr Putman’s licence does not satisfy the criteria under the Policy for the period from 12 April 1997 to 11 April 2002. The history for the licence shows that there were limited catches of shark in the years to 2002, with the biggest being 296kg. There is again limited catch history of fishing for shark for the period between 12 April 2002 to 11 April 2008, with only one years (2005-2006) having a catch of shark above 1,000kg (1,606kg).
It is clear that the licence does not satisfy the second limb of the criteria required under the Policy.
DECISION
Mr Putman has been involved in the fishing industry for 25 years and has owned and leased numerous licences in that time. He currently fishes with his son who has been in the industry for ten years.
Mr Putman purchased FMLK in August 2007, well after the release of the investment warning dated 12 September 2003, of which he openly admitted during the hearing that he was very aware of the investment warning. He also admitted that the licence he had purchased for $18,000.00 was an old trawler licence and had very limited catch in the C1 or S fisheries. He also admitted that the money he paid for the licence had been recouped through its use since the purchase until now.
The majority of Mr Putman’s argument appeared to be based on the way fisheries were managed in Queensland. He suggested that the management arrangements were unjust and that persons who only make income from fishing should be considered differently from those who also work outside the fishing industry. For example, Mr Putman indicated that about 83% of fishers making income outside the fishing industry. Mr Putman also suggested that log books were not an appropriate way to manage fisheries as people often put incorrect information in them. There was for example, discussion as to whether people record catches that are both under and over the actual catches and the implications of this.
Mr Putman argued that the Tribunal should also consider his catches made under a leased licence and should suggest how this catch data should be included in his history. In the normal situation, catch data always follows a licence and not a fisher and Mr Putman’s submissions that this was not the most appropriate way to manage fisheries.
Under s 24(3) of the Queensland Civil and Administrative Tribunal Act 2009, the Tribunal may make, to the chief executive of the entity in which the reviewable decision was made, written recommendations about the policies, practices and procedures applying to reviewable decisions of the same kind.
The Tribunal understands many of the arguments put forward by Mr and Mrs Putman but does not believe that it needs to make any such recommendation particularly in that Mr Putman could not make specific suggestions that this Tribunal feels would assist in fisheries management in Queensland.
Mr Putman argued that since the purchase of the licence, they had caught a large number of sharks (up to 12 tonne) of which half was kept for bait and the other half sold. There was some discussion as to the amount of shark caught. The Tribunal, along with Mr Putman, undertook calculations as to the numbers of shark that could be caught in an ordinary year without the need for an S symbol which appeared to be more than Mr Putman would normally catch if he held an S symbol. Mr Putman agreed with the Tribunal on these points.
The Tribunal finds that as Mr Putman purchased the licence well after the investment warning there is no reason to reverse the decision of the Department. Mr Putman has been involved in the fishing industry for many years and has owned numerous licences. The Tribunal accepts that 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 prior to and after the investment warning.
The Tribunal finds that no special circumstances exist in these two cases and the Department’s decisions to remove the C1 symbol and refuse to grant an S symbol was correct and there should not be any discretion in favour of Mr Putman with respect to both the C1 and S symbols.
ORDER
In these circumstances, both the Department’s decisions of 24 July 2009 and 14 August 2009 to amend Licence Number 14996 with Boat Mark FMLK to remove the C1 symbol and refusing to write an S symbol on the same licence are confirmed.
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