Drew v Chief Executive, Department of Employment, Economic Development and Innovation [2011] QCAT 236

CITATION: Drew v Chief Executive, Department of Employment, Economic Development and Innovation [2011] QCAT 236 PARTIES: Fred Drew v Chief Executive, Department of Employment, Economic Development and Innovation APPLICATION NUMBER: FHR015-09 MATTER TYPE: General administrative review matters HEARING DATE: 21 October 2010 HEARD AT: Brisbane DECISION OF: Peter Wulf, Member Prof Adrian Ashman, Member William LeMass, Adjudicator DELIVERED ON: 9 May 2011 DELIVERED AT: Brisbane ORDERS MADE: The Respondent’s decision of 16 February 2009 to not endorse Permit Number 114082 to allow the use bottom set line fishing equipment is set aside and conditions imposed consistent with these reasons. CATCHWORDS: Fisheries – developmental permit – history – observer – management strategies – Commonwealth legislation – special circumstances – severe personal hardship – conditions Fisheries Act 1994, ss 54, 55 Fisheries Regulation 2008, r 219 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Fred Drew assisted by Mr Robert Fish RESPONDENT: Chief Executive, Department of Employment, Economic Development and Innovation represented by Mr Shane Hansford and Mr Mark Lightower -- 1 of 8 -- 2 REASONS FOR DECISION [1] The applicant, Mr Fred Drew has appealed against a decision of a delegate of the Chief Executive of the Department of Employment, Economic Development and Innovation dated 16 February 2009. The decision was to not endorse the applicant’s developmental fisheries permit (DFP) number 11408 with an authority to use bottom set line fishing equipment pursuant to ss 54 and 55 of the Fisheries Act 1994 (“the Act”) and reg 219 of the Fisheries Regulation 2008. [2] This matter was heard on 21 October 2010. Subsequent to the hearing of the application, the parties were asked to file additional material including information on the application and use of the Gauntlet approach in respect of the Department’s decision, elasmobranch (shark and ray) fisheries research and population information, and a copy of an observer report that was completed for the applicant’s operation. [3] The appeal was filed in the former Fisheries Tribunal. Effective 1 December 2009, the Fisheries Tribunal was abolished. Under the provisions of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), the Queensland Civil and Administrative Tribunal (Tribunal) must deal with the proceeding. BACKGROUND [4] On 5 February 2009, Mr Drew filed an application for the re-issue of a DFP 94266 under which he had been operating under for the previous three years (from 2007). The previous DFP had authorised him to use set mesh nets, bottom set and drop line fishing equipment in the Gulf of Carpentaria (within Queensland and Commonwealth waters) to catch elasmobranchs (predominantly whaler sharks) and some fin fishes. [5] On 16 February 2009, the Department issued a new DFP but refused to endorse the DFP with an authority to use bottom set line fishing equipment. This application was one of three made for the use of the same equipment within the fishery and the Department refused to grant an authority to use bottom set line fishing equipment on all three applications. [6] There are numerous conditions under the DFP including: (a) Restrictions on species that cannot be kept, that is, only bony fishes and not any cartilaginous fishes (elasmobranchs); (b) The fishing and any other activity relating to the DFP can only be undertaken from the FV Coral Cay (Boat Mark Y1A) within a specific area, which includes Queensland and Commonwealth waters; (c) Mesh net and drop line fishing cannot occur simultaneously; (d) Mr Drew can only take fin fishes when using a net no longer than 2.5km with a mesh size of 160mm to 165mm; and (e) Mr Drew must have no more than 50 hooks for the drop line, with six drop lines at a time, and must be within 100m of the drop line at all -- 2 of 8 -- 3 times. [7] On 23 March 2009, Mr Drew filed an appeal with respect to the refusal to grant the DFP as it previously was, that is, he is only appealing against the refusal the use of bottom set line fishing equipment. [8] This is the only appeal lodged with either the Fisheries Tribunal or this Tribunal with respect to the three applications that were originally submitted to the respondent, with all three applications being refused to use bottom set line fishing equipment. It is noted that there are legislative time restrictions applying to appeal any decisions of the respondent and this time period has now lapsed. This Tribunal believes that it would be very unlikely that leave would be granted by another constituted Tribunal should appeals with respect to the other two applications be lodged. [9] Mr Drew submits that the Department’s decision was contrary to the Act, manifestly unfair, and will cause severe personal hardship. [10] Mr Drew has been fishing commercially for about 24 years. He holds a Master V commercial ticket, a MED II engineering ticket, and is a Master Fisher. [11] He purchased his first licence in Western Australia when he was 22 and commenced shark fishing within a year. He fished in the Northern Territory for shark for about five years before moving to Queensland to fish in an area of the Gulf of Carpentaria managed by the Department. He purchased a Commonwealth licence in 2006 and obtained a DFP for the purposes of his operation in 2007 from the respondent that was similar to that purchased with the Commonwealth licence. [12] The original DFP allowed Mr Drew to use set mesh nets, bottom set line and drop line fishing equipment in the Gulf of Carpentaria Inshore Finfish fishery. He stated that he had only used this type of apparatus in the last 12 months but had purchased nets valued at $36,000.00. Although it is not salient to the present matter, Mr Drew gave evidence that he would be interested in giving up his mesh net authority on his licence if he was able to obtain the bottom set line authority but this is something that the Tribunal does not need to address within this decision but maybe something the parties can discuss for any future DFP. [13] Mr Drew argued that the Department’s decision had caused severe financial loss. He indicated that as a result of not being able to take shark through bottom set line fishing equipment, he had lost approximately 85% of his catch and had to retrench five staff from an original workforce of 14. He also stated that the loss of his licence would result in a loss of about $600,000.00 in income and a loss in profit of approximately $150,000.00 per annum. It is noted that the Department’s representative disputed this amount in their submissions. [14] Mr Drew further submitted that the Department’s decision was contrary to the Act in that the Department’s delegate suggested that DPI and F normally consider that any expansion of fishing capacity in commercial fisheries is contrary to the main purposes of the Act. The purpose of the Act as described in s 3 is an overarching objective, predominantly being a balance of the use, -- 3 of 8 -- 4 conservation, and enhancement in an ecologically sustainable way. While Mr Drew may consider that the Department’s decision was contrary to the Act, the interpretation of s 3 is not prescriptive and allows the decision maker latitude. Further, when assessing the remainder of the section, it is critical to ensure that all nine principles are considered. The precautionary principle that was a significant factor for the decision maker in this matter is mentioned in s 3(5) of the Act. Therefore in the Tribunal’s view a decision made where a precautionary approach was taken would not be contrary to the Act. [15] The second and third bases of the appeal are considered below. [16] The Department’s reasons for not granting the whole DFP include: (a) concerns worldwide about the ecological sustainability of elasmobranch species as a result of increased fishing pressures over time; (b) the protection of important conservation species under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act); (c) material from the Shark Working Group in conjunction with the Inshore Finfish Management Advisory Committee who aim to protect larger adult breeding elasmobranchs; (d) the application of a paper considering the Gauntlet Approach; (e) The quota placed on the East Coast Shark fishery of 600 tonnes per annum; and (f) the application of the precautionary principle. [17] The Tribunal will address each factor separately within these reasons, although as is highlighted above, the use of the precautionary principle is a strict requirement of s 3 of the Act and the Tribunal does not feel it requires any additional investigation. [18] There was little evidence presented as to the concerns about the worldwide ecological sustainability of elasmobranchs. Notwithstanding the lack of evidence, the Tribunal is aware of the concern and has considered this in making this decision. [19] The EPBC Act is Commonwealth legislation protecting matters of national environmental significance, these being matters of international importance where the Commonwealth has international obligations. There are a number of relevant provisions within the EPBC Act that are important to this matter, including ss 6,1 18,2 18A,3 19,4, Part 10 Division 2,5 Part 13 Division 1,6 Part 1 Extended application of Act to match extended management of fisheries under the Fisheries Management Act 1991. 2 Actions with significant impact on listed threatened species or endangered community prohibited without approval. 3 Offences relating to threatened species etc. 4 Certain actions relating to listed threatened species and listed threatened ecological communities not prohibited. 5 Assessment of Commonwealth-managed fisheries. -- 4 of 8 -- 5 137 and Part 13A.8 It is noted within the decision letter that Mr Drew will not be exporting his catch and, therefore, Part 13A is irrelevant as it specifically relates to the international movement of wildlife that are protected under International Conventions (eg CITES).9 [20] Some elasmobranchs are listed as threatened species under the EPBC Act. It is recognised that it is very important that these species be protected and all efforts to minimise harm are undertaken. In considering that, Mr Drew was involved in an observer program and a report was prepared for the parties by Mr Rowan Gibbs. Mr Gibb’s report indicated that during the period of 25 July and 3 August 2008, he was aboard the applicant’s vessel FV Coral Cay. He viewed the applicant undertake 13 sets during that period and caught 359 individuals from 24 species. The operation retained 91.1%, and discarded 8.9%, of which 5% were target species. Importantly, the operation did not catch any protected species under the EPBC Act, the Nature Conservation Act 1992 (Qld) (NC Act), the Act, or any other legislation. It was also apparent Mr Drew returned unwanted species to the marine environment alive. Mr Drew gave evidence that during the whole time he had been bottom set line fishing under his original DFP, he had caught one protected species only under the EPBC Act and that individual was released alive and uninjured. [21] Of further importance within Mr Gibb’s report are comments about the professionalism of Mr Drew’s operation and the high quality of the product caught. The report also indicates that the crew were accommodating, very cooperative, and willing to participate in future surveys. This suggests to the Tribunal that Mr Drew and his crew had done an excellent job when undertaking bottom set line fishing and had complied fully with the conditions set by the Department under the previous DFP. The Tribunal is satisfied that Mr Drew was undertaking a highly efficient and responsible operation. [22] The size of elasmobranchs caught was also considered in evidence. It would therefore seem likely that any condition requiring the applicant to release any protected species would be strictly adhered to. Clearly, the immediate release of any protected elasmobranch should be a specific condition of the permit under Commonwealth and Queensland law for any fishing authority. [23] The Inshore Finfish Management Advisory Committee and Shark Working Group provided recommendations to the Department on ways to protect elasmobranch stocks, particularly larger breeding individuals. One of their recommended measures was that a maximum size limit of between 150cm and 200cm be adopted as a management arrangement within the fishery as this protected adult sharks and allowed sharks of a preferred size to be taken. The Department argued, however, the Mr Drew’s operation targeted individuals that were larger than 150cm. [24] The basis of the Shark Working Group’s size recommendation appears to be premised on data that suggested that 99.3% from five of the six most targeted species are less than 190cm when fully mature and 96.6% are less than 150cm. These appear to also be the sharks predominantly caught by Mr Drew 6 Listed threatened species and ecological communities. 7 Species and communities. 8 International movement of wildlife specimens. 9 Convention on International Trade in Endangered Species of Wild Fauna and Flora. -- 5 of 8 -- 6 based upon Mr Gibb’s report. [25] The Department further argued that its decision was based on the Shark Working Group’s recommendation to disallow bottom set line hooks to protect larger sharks that can provide for an increased breeding population and that the fishery should target smaller immature individuals. The Department suggested that this was called the Gauntlet management approach in fisheries. [26] The Gauntlet approach is often utilised in a fishery where there is uniform size and there is a specific need to retain large individuals as breeding stock for future sustainability of a population. This is the approach generally and it is something that should be considered when making management decisions for the future sustainability of all fish stocks, whether they be elasmobranchs or others. [27] During the hearing, there was specific reliance on a paper by Prince (2005) that discussed the use of the Gauntlet approach specifically related to an elasmobranch fishery in South Australia. In Prince’s (2005) paper, the use of the Gauntlet approach referred to the management of two species of shark only, rather than the potential 50 species observed in the Inshore Fin Fish fishery of the Gulf of Carpentaria. With respect to the two species, they had very different resilience to fishing pressure while being the same size during their lifecycles. On the basis of information provided to the Tribunal, many species of the approximately 50 observed in the Gulf of Carpentaria have different size and life history characteristics, with many species being much larger than those targeted for commercial activities. [28] The approach also requires specific knowledge of life characteristics of each species. In the South Australian example, one species matured at 35 years while the other matured at 14 years. This is a significant difference and may not be the most effective management technique for the management of a fishery with approximately 50 different species although it is clearly one approach. [29] The Department’s refusal to grant the whole of Mr Drew’s application was on the basis that it had set a quota for shark on the East Coast of Queensland to 600 tonnes per annum and that a similar quota was also likely to be imposed in the Gulf of Carpentaria Inshore Finfish fishery. A written policy was adopted by the Department on 2 April 2009 entitled “Policy for the allocation of N4, N10, N11 and S fishery symbols” (“the Policy”). The Policy aims to manage the Queensland east coast net and shark fisheries and protect the future sustainability of sharks and other inshore finfish by limiting the number of fishers taking particular species or using particular fishing gear. The Policy sets an annual total allowable commercial catch of 600 tonnes with licences being limited to those that meet a two limb criteria. Commercial fishers wishing to target shark specifically are required to hold an “S” symbol endorsement on their fishing licence. If a commercial fisher does not hold an “S” symbol, s/he is restricted to the possession limit of ten net-caught or four line-caught sharks. [30] However, there are two important matters to be considered here. Firstly, while the Tribunal notes the need to protect elasmobranchs in the Gulf of Carpentaria, there is currently no Policy placing a quota on the number of sharks that can be taken in the Inshore Finfish fishery. The only evidence presented to the Tribunal was of a Regulatory Impact Statement and -- 6 of 8 -- 7 Response Form in the public domain at the time of the hearing addressing the future management arrangements for the fishery. [31] Secondly, it is noted within the Department’s decision letter that Mr Drew states that the take of shark within the Gulf of Carpentaria has significantly reduced from 500 tonnes caught in 2005 to 400 tonnes in 2006 and 2007. In contrast, the Department suggests that the use of bottom set line fishing apparatus represents a means of significantly increasing the take of shark to other methods. This is surprising to the Tribunal considering evidence that there are about 100 mesh net licences and only three line licences, and no data available concerning the distribution of these catches. Therefore, the Tribunal is of the view that administratively, this is an irrelevant consideration. [32] Mr Drew provided extensive submissions on the amount of shark caught within the northern areas of Australia over many years, including illegal catches and those both international fishers. These figures also included the catch of shark as bycatch taken in the North Prawn Fishery. Mr Drew; however, did not provide references for the source of these data and, therefore, the weight of this evidence is diminished. [33] The data presented by Mr Drew, however, might suggest that the historically high catches of sharks has been sustainable and that a larger take could be considered appropriate, thereby giving weight to the granting of his authority to use bottom set line fishing equipment. In the alternative, the data could suggest, as it has been by the Department, that the historically high take of shark has caused the population to be reduced significantly, making it mandatory to limit shark catches so this fishery does not become like many other fisheries around the world, in significant decline. [34] Except for the report prepared by the CSIRO in 2007 entitled “Northern Australian sharks and rays: the sustainability of target and bycatch species, phase 2”, there was no material presented to the Tribunal to demonstrate the actual population of sharks within the Gulf of Carpentaria. This report incorporated Western Australia, the Northern Territory, and Queensland and was not sufficiently specific in its analysis to provide the Tribunal with exact data. Further, the data collected for the report is 6 years old (having been collected between 2002 and 2005) and new research is required to provide an accurate understanding of the population dynamics of all elasmobranchs in both Queensland and Commonwealth waters under the control of the Queensland Fisheries Joint Authority. [35] The report did identify 14 species that it considered were at risk including sawfishes (Pristis clavata, P. microdon, P. zijsron), giant shovelnose ray (Rhinobatos typus), shark ray (Rhina ancylostoma), speartooth sharks (Glyphis sp. A, Glyphis sp. C), the great hammerhead (Sphyrna mokarran), the lemon shark (Negaprion acutidens), Pig eye (Carcharhinus amboinensis) and three whaler species (C. brevipinna, C. leucas, C. limbatus). It would seem relevant that any decision in regard to licensing should consider these species. [36] While the Tribunal affirms the necessity to take a precautionary approach to the issue of any authority to take shark, no evidence before the Tribunal demonstrates that Mr Drew’s actions would result in a significant decline in elasmobranch numbers by using bottom set line fishing equipment. -- 7 of 8 -- 8 [37] The Tribunal is, however, perplexed by the decision to refuse the use bottom set line fishing equipment, which the Shark Working Group and this Tribunal believes is far more targeted to particular species than the use of extensive mesh nets. The Department suggests that bottom set line fishing equipment is less selective that other techniques, which is contrary to advice from its own expert panel. [38] Further and importantly, the Shark Working Group stated in their report that it is likely that most line caught sharks can be released alive with appropriate education and handling practices (this being those that are larger sharks) and this may not be the case for a shark caught in a net. Considering Mr Gibb’s report, it would appear that Mr Drew is operating an excellent operation but he may benefit from additional education on the preservation of larger sharks to make his operation more effective and efficient. [39] The Tribunal finds that it is likely that more non-targeted sharks would be caught in nets and that there is a greater risk to protected species through the use of nets than through bottom set line fishing, including the likelihood of those species being released from a hook with limited damage. If a shark is caught on a hook, and the fisher has received education and handling training, the only likely damage is usually restricted to the individual elasmobranch’s mouth rather than for example, the individual wrapping itself within a net which can cause wounds all over the trunk for example of a shark and then disease. [40] Based on the above, the Tribunal finds that the Department’s decision was manifestly unfair, has caused, and will cause the applicant severe personal hardship particularly through the loss of staff, income and profit, and that it is unlikely that larger breeding elasmobranch individuals will be taken if strict conditions are imposed. [41] The Tribunal, therefore, sets aside the refusal to grant Mr Drew a DFP, including the use of bottom set line fishing equipment. The DFP will be amended as follows: (a) The applicant is allowed to use bottom set line fishing equipment; (b) The applicant is limited to catches of individuals of no greater total length than 150cm; (c) The applicant must not take any species that is protected under the EPBC Act, the Act and/or NC Act. Should an individual of a protected species be caught, data must be collected on the individual and provided to the respondent for ongoing monitoring of the species prior to release. If, in the event that a protected species cannot be returned alive to the marine environment, the applicant must immediately when returned to port, notify the respondent of the relevant details of the individual and the reasons why it could not be released, and with appropriate photographic evidence; (d) The applicant must not take any of the 14 listed species at high risk identified by the CSIRO report; and (e) The remaining authorised activities and general, set mesh net and drop line operating conditions continue as per the original DFP. -- 8 of 8 --