Sikes v Chief Executive, Department of Employment, Economic Development and Innovation - [2010] QCAT 558

CITATION:

Sikes v Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 558

PARTIES:	Mr Gary Sikes
v
Chief Executive, Department of Employment, Economic Development and Innovation

APPLICATION NUMBER:

GAR018-09

MATTER TYPE:

General administrative review matters

HEARING DATE:

16 April 2010

HEARD AT:

BRISBANE

DECISION OF:

Clare Endicott, Suzanne Brooks, Peter Wulf

DELIVERED ON:

8 November 2010

DELIVERED AT:

BRISBANE

ORDERS MADE:

The Respondent’s decision of 10 November 2009 to amend the licence to remove the C1 symbol is affirmed.

CATCHWORDS :

Fisheries, Crab, Investment Warning, Catch History, Earlier Licence Sold in Buyback, Other Business, No Special Circumstances

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr Gary Sikes
RESPONDENT:	Chief Executive, Department of Employment, Economic Development and Innovation represented by Mr Richard Marsh

REASONS FOR DECISION

The applicant, Mr Gary Sikes has appealed against a decision of a delegate of the Chief Executive, Department of Employment, Economic Development and Innovation dated 10 November 2009. The decision was to amend Mr Sikes’ primary commercial fishing boat licence 18730 with boat mark FWNR by removing his C1 fishery symbol pursuant to s.63(2) of the Fisheries Act 1994 (“the Act”).
This matter was heard on 16 April 2010. Subsequent to the hearing of the application, the parties were asked to file further written submissions particularly as to Mr Sikes’ relaince on the C1 symbol through the provision of his tax returns for the years since he purchased the licence and also provision of catch history on this licence and others that the applicant had owned/leased in the past. The applicant provided two tax returns but not all as requested by the Tribunal.
On 18 July 2008, the Respondent adopted a written policy entitled “Policy for the Removal of Excess Fishing Capacity in Queensland’s Line, Crab, Beam Trawl and Eel Fisheries” (“the Policy”). The Policy states that its objective is to remove excess fishing capacity in Queensland’s line, crab, beam trawl and eel fisheries. The objective is to be achieved by providing for a decision- making process to amend commercial fishing licences to remove L1, C1, T5, T6, T7, T8, T9 and E fishery symbols if minimum fishing history criteria are not met.
The Policy deals with the problem that there are many commercial fishing licences that entitle the holders to fish in Queensland’s line, crab, beam trawl and eel fisheries and those entitlements are not presently being utilised or are under-utilised. The concern is that these fisheries would be unsustainable if this latent effort is converted into actual effort as fishing entitlements become more restricted in other fisheries.
It is not the Tribunal’s role to second-guess the adoption of the Policy and the reasons for it. Under s.185 (2)(a) of the Fisheries Act,[1] a decision “about policy” cannot be appealed against. This means that the Tribunal cannot review a decision made by the Respondent to adopt a policy.
[1] Previously s 196(2)(a)
However, the Tribunal does have a role in hearing and determining appeals against decisions made under the Policy. In other words, it is open to an applicant/s to argue that a decision made under the Policy involves an error of law or is manifestly unfair or will cause severe personal hardship.
Further, the power to amend a licence under s.63 (2) of the Fisheries Act is discretionary. It is fundamental that the exercise of a statutory discretion cannot be fettered by a policy: see, for example, Perder Investments v Lightowler (1990) 25 FCR 150, R v Queensland Fish Management Authority: Ex Parte Hewitt [1993] 2 Qd R 201 at 204, 206. Accordingly, the Policy cannot be construed to limit the circumstances in which a symbol will not be removed where the minimum criteria are not met to those which “prevented a licence holder from meeting the required minimum commercial level”. Any other circumstances that would make it unjust to remove the symbol must be considered.
In this case, Mr Sikes has argued that the decision is manifestly unfair and will cause him severe personal hardship.
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.
The applicant has been involved in the fishing industry since 1982 and within the C1 fishery since 1994. He also works as an electrician although the apportionment of his time to this work and fishing was not easily understood and his additional information contained within his taxation returns provided to the Tribunal were of little help. These are discussed later in this decision.
Mr Sikes advised the Tribunal that on 21 October 2005, he made an application under the Great Barrier Reef Marine Park Representatives Areas Program Structural Adjustment Package (“RAP”) for a grant for assistance with his business as a result of changes to zoning in the Great Barrier Reef Marine Park in 2004. The RAP was designed to buy back licences from fishers who would potentially lose income from the zoning changes and also reduce the number of fishers. The RAP and the payment of monies to disadvantaged fishers were not designed to be used for applicants to re-establish themselves back into the fishing industry.
In his RAP application, Mr Sikes indicates that his fishing operation consists of two main parts, this being inshore crabbing and fishing and offshore reef fishing.
Mr Sikes requested $140,889.00 for Full Business Restructuring Assistance. The Queensland Rural Adjustment Authority (“QRAA”) determined that he should receive $100,435.00. The decision-maker for the RAP considered that Mr Sikes’ licence should be purchased for $96,600.00 plus $3,835.00 for business advice, this equalling the amount recommended by the QRAA. Mr Sikes was paid by the RAP as per a letter dated 21 March 2006.
On 7 March 2006, the applicant purchased primary commercial fishing boat licence 12292 with boat mark FXNF and a tender with commercial fishing boat licence 11994 with boat mark FXNF 1 for $29,700.00. The licence had C1, C3, L1, L3, N6 and SM fishery symbols attached to it.
Sometime in 2008, the applicant transferred the C1, C2 and SM symbols from FXNF to FWNR and FXNF was sold for an undisclosed sum.
FXNF and therefore the CI symbol that was later transferred to FWNR, was purchased after the release of investment warning for the C1 fishery on 12 September 2003.
The 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 would adversely affect the sustainability of stocks in that fishery.
The investment warning warned people with a current interest or considering investing in any of these fisheries that increases in their level of catches or fishing effort might from that time not be recognised in future management arrangements.
The delegate determined that Mr Sikes either knew or ought to have taken reasonable steps to find out about the investment warning and should therefore not have increased investment or effort into the fishery. It is clear that Mr Sikes was well aware of the investment warning. Accordingly, the delegate decided to exercise the discretion to amend the licence by removing the C1 symbol.
When making an assessment of the catch data for the applicant, it is clear that Mr Sikes’s licence does not satisfy the criteria under the Policy for the period from 13 September 1999 to 12 September 2003. There was no catch during that four year period.
When considering the catch history of the C1 symbol for the period between 13 September 2003 and 12 September 2007, the history for the licence shows that there was catch in the years 2005-06 (1,478kg) and 2006-2007 (1,070kg). Mr Sikes’s licence therefore satisfies the criteria under the Policy for the period from 13 September 2003 and 12 September 2007.
In the years post the Policy, Mr Sikes provided information in his additional submissions that he had a catch in the C1 fishery of:
(a)1,635kg from 1 July 2007 to 30 June 2008; and
(b)550kg from 1 July 2008 to 30 June 2009.
The evidence shows that FWNR was up until 2006, predominantly used in the L3 and C3 fishery, with substantial quantities taken in both fisheries.[2] However, the catch history for FXNF shows it had no catch in the C1 fishery between 1999 and 2006 prior to the applicant purchasing the licence and therefore it would not qualify under the Policy.
[2] Exhibit 1 - Appeal Book Pg 18 – data from 1998 to 2009
Mr Sikes argued that his history in the C1 fishery, and the use of the leased C1 symbol over many years along with his extensive reliance on the C1 fishery and the severe personal hardship he would suffer ought to have resulted in the decision maker exercising the discretion in his favour under the Policy and not amend his licence by removing his C1 symbol.
Unfortunately, Mr Sikes cannot rely upon catch taken under the leased licence. This catch is specifically related to licence GVV and is not transferable and cannot be used as history in Mr Sikes’ favour.
After the hearing as directed by the Tribunal, Mr Sikes provided additional evidence including financial statements and taxation returns to show his reliance on the C1 fishery. For reasons only known to Mr Sikes, the applicant did not provide the Tribunal with all his taxation returns and appears to have been selective in supplying financial years 2004-2005 and 2008-2009 only. The Tribunal makes no finding as to the failure of the applicant to provide all taxations returns as requested but notes some information from those supplied.
In 2004-2005, Mr Sikes made about 50% of his income from electrical work and 50% of his income from primary (56%) and non-primary (44%) production. The Tribunal assumes that the primary and non-primary production was related to the fishing industry.[3] However, there is nothing that assists the Tribunal in understanding what amount of this catch was actually taken from the C1 fishery in comparison to other fisheries.
[3] Statutory Declaration of Cheryl Ellen Pattermore dated 23 April 2010
However, when looking at the QRAA report, it is noted that in 2004-2005, the applicant’s primary source of income from the fishing industry was from the C1 fishery, although an income of only $25,125.00 would not appear to be a sustainable fishing business.
The tax return provided for 2008-2009 was of little assistance to the Tribunal.
In the seven years described in the QRAA report, in four out of the seven years, the applicant had income from the C1 fishery below $6,300 which would suggest that the applicant does not have a specific reliance upon the C1 fishery for a high percentage of his income. Importantly, the applicant states in his application to the RAP that as a result of a serious engine fire on board his offshore vessel in January 2002, he specifically targeted the C1 fishery until 26 June 2003. It is noted that in 2001-02, the applicant made $23,258.00 in income from the C1 fishery and then dropped significantly in 2002-2003 ($5,505.00) and 2003-2004 ($5,517.00), which the Tribunal considers to be a normal year. This is consistent with the information provided by the applicant in his RAP application that 1999-2000 catch income was the norm. In 1999-2000, the applicant generated only $6,292.00 from the C1 fishery.
The Tribunal finds that Mr Sikes purchased the licence well after the investment warning, and that there does not appear to be a high reliance on the C1 symbol over time, and accordingly, there are no special circumstances that exist in this case. Therefore, the respondent decision to remove of the C1 symbol from Mr Sikes’s commercial fishing boat licence gave sufficient weight to his specific circumstances and the discretion should not now be exercised in favour of Mr Sikes.
In these circumstances, the decision under review is affirmed and the C1 symbol will be removed.