Chief Executive, Department of Employment, Economic Development and Innovation v Fuchs [2011] QCAT 29

CITATION: Chief Executive, Department of Employment, Economic Development and Innovation v Fuchs [2011] QCAT 29 PARTIES: Chief Executive, Department of Employment, Economic Development and Innovation v Wayne James Fuchs APPLICATION NUMBER: RWL006-10 MATTER TYPE: General administrative review matters HEARING DATE: Decision on the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe, Member DELIVERED ON: 25 January 2011 DELIVERED AT: Brisbane ORDERS MADE: The application to reopen the tribunal’s decision on 5 October 2010 is dismissed. CATCHWORDS : PROCEDURE – application to renew a final decision – where conditions imposed on licence – where Department alleges it is not possible to comply with conditions – where Department alleges it is difficult to implement or enforce the tribunal’s final decision – whether conditions are contrary to public policy Fisheries Act 1994 ss 61, 65 Fisheries Regulation Chapter 6 Queensland Civil and Administrative Tribunal Act 2009 ss 61, 133 and 137 APPEARANCES and REPRESENTATION (if any): This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 REASONS FOR DECISION [1] On 5 October 2010, on Mr Fuchs’ application, the tribunal determined that the Department’s decision to remove the L1 symbol should be set aside -- 1 of 5 -- 2 and that Mr Fuchs should have the benefit of the L1 symbol subject to the following conditions: a) The symbol may be used to line fish within Zones V32, W32, V33 and W33; b) The symbol may only be used to catch mackerel species within Zones V32, W32, V33 and W33; c) The symbol cannot be leased to another fisher for whatever reason; d) If for any reason Mr Fuchs, the current holder of the commercial fishing boat licence 5331 with boat mark FVSB wishes to sell the licence, the L1 symbol is surrendered to the respondent. [2] The Department received a copy of the decision notice on 9 November 2010 and a copy of the reasons for decision on 10 November 2010. Rule 89 of the Queensland Civil and Administrative Tribunal Rules 2009 requires an application for renewal of a final decision to be made within 28 days of the day the party receives a copy of the written reasons for decision. The Department filed the application on 9 December 2010; by my calculation the time for filing expired on 8 December 2010. To the extent that an extension of time is required, I exercise my discretion pursuant to section 61(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”) accordingly. [3] A party may apply for a renewal of a final decision1 if: a) It is not possible for the tribunal’s decision in a proceeding to be complied with; or b) There are problems with interpreting, implementing or enforcing the tribunal’s final decision in a proceeding. [4] The Department says that: a) There are problems with implementing and/or enforcing conditions (a) and (b) imposed by the tribunal. b) Conditions (c) and (d) are contrary to section 65 of the Fisheries Act 1994 and, therefore, it is not possible for the Department to comply with the tribunal decision. Conditions (a) and (b) [5] The Department says that there are difficulties “from a compliance perspective” with these conditions: a) The efficient and effective monitoring of fisheries resources and activities is of central importance to the ongoing management of commercial fisheries in Queensland. b) The imposition of individual conditions will result in a disproportionate level of Departmental resources being used to ensure compliance. c) The only efficient way to monitor condition (a) without a disproportionate use of Department resources would be to require Mr Fuchs to install and use a vessel monitoring system (“VMS”). 1 QCAT Act s133(1) -- 2 of 5 -- 3 d) A VMS is not a practical option given the nature of Mr Fuchs’ operations and the size of his vessel. e) A VMS would not assist the Department in monitoring Mr Fuchs’ compliance with the species of fish that he may take in the future. [6] Mr Fuchs says that the problems identified by the Department are no different from the problems it experiences in monitoring compliance by any fisher of any licence conditions. He points out that: a) The Department’s regime for monitoring compliance is to approach a fisher on open water and: check the licence to see if the fisher has the appropriate symbol for the fishing that is occurring; check whether the fisher has the required gear for that type of fishing; and check whether the fisher is operating in an area authorised by the fisher’s licence. b) The conditions on Mr Fuchs’ licence restrict his operations to a discrete, localised area and a particular species. c) There is no additional compliance resource required for the proposed conditions over and above what is already required of a fisher with no conditions on the licence. [7] Mr Fuchs compares the monitoring of the proposed conditions with the monitoring of “work licence” conditions on a motor vehicle licence. I agree with that analogy. The imposition of extra conditions does not impose an obligation on the Department to implement extra monitoring. Mr Fuchs will simply be one of many fishers with a licence. The difference will be that he is restricted to the area and type of fish that he can catch in a way that other fishers are not. The “problems” with implementing or enforcing the tribunal’s decision are no different from the everyday problems that the Department faces in enforcing the conditions of licences generally. Conditions (c) and (d) [8] Section 65 of the Fisheries Act states: (1) Subject to registration under this subdivision, an authority other than a permit may be transferred unless, under a regulation or management plan, the authority is not transferable either generally or in the circumstances relating to the particular authority. (2) On registration of the transfer, all rights and liabilities attaching to the authority vest in the transferee. [9] The Department says that: a) Section 65 makes it clear that authorities are transferable unless a regulation or management plan states otherwise. b) Commercial fishers can enter into lease arrangements in relation to a symbol, subject to an application to the Department under section 256 of the Fisheries Act. c) The tribunal’s conditions prevent Mr Fuchs from transferring his authority while the L1 symbol is attached to the licence. d) That has the effect of asking the Department to do something that is contrary to section 65(1) of the Act and, therefore, it is not possible for the Department to comply with the tribunal’s decision. -- 3 of 5 -- 4 [10] Mr Fuchs says: a) Section 65 says that an authority may be transferred not must be transferred. b) The Department may impose conditions on the transfer or renewal of an authority.2 The list is not exhaustive, so it is conceivable that the Department could impose the same conditions as the tribunal has imposed. c) He understands that the tribunal’s conditions are intended that only Mr Fuchs can use the symbol and he has no difficulty with that. [11] Section 61(1) of the Fisheries Act allows the chief executive to impose reasonable and relevant conditions on the issue or renewal of a licence. The sub paragraphs of that section are expressed to be inclusive, and by way of example. As Justice McMurdo has observed3: Ordinarily, the use in a statute of the word “includes” in a definition is to enlarge the ordinary meaning of the word, so that what is within the term as defined are those things according to its ordinary meaning together with those things which are specifically included. [12] Chapter 6 of the Fisheries Regulation sets out the conditions applying generally to licenses with fisheries symbols. They cover matters such as the area in which fish may be taken, the type of fish that may be taken, the apparatus, how fish may be taken or the period in which fish may be taken. It is clear from section 61 that the chief executive’s ability to impose conditions is considerably wider that the general conditions in the regulations. [13] The right to transfer a licence available under section 65 must be read in light of the chief executive’s ability to impose conditions on the issue or renewal of a licence. If a party applies to transfer a licence that contains a condition prohibiting its transfer, and that condition, when imposed was reasonable and relevant, then there is no right to transfer the licence. Such a conclusion is consistent with the overall objectives of the Fisheries Act “to provide for the use, conservation and enhancement of the community’s fisheries resources and fish habitats”.4 [14] The tribunal has determined that the conditions it imposed are reasonable and relevant. Therefore, the prohibition on the transfer of the licence cannot be said to be something is prevented by section 65. Accordingly, therefore, it is possible for the Department to comply with the tribunal’s decision. Public interest [15] The Department points out that the Policy for the Removal of Excess Fishing Capacity in Queensland’s Line, Crab, Bream, Trawl and Eel Fisheries states: “… the policy will achieve its objective 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.” 2 Section 61 Fisheries Act. 3 R v Smith [2008] QCA 406 at [31]. 4 Section 3(1). -- 4 of 5 -- 5 [16] The Department argues that the objectives did not envisage the decision- maker making a decision that a symbol should not be removed but that conditions should be imposed to restrict its use. It also says that the tribunal’s decision did not have sufficient regard to public interest considerations such as: a) The Department’s significant expenditure in developing the policies. b) That the tribunal’s decision may not fit within the Queensland legal framework. c) That the tribunal’s decision may offend other State or Commonwealth policies. d) Whether the decision can be adequately and effectively enforced. e) Does the approach require compensation? f) Does the approach impact upon other stakeholders? g) What resourcing is required, having regard to a public interest test? h) What are the alternatives having regard to a cost/benefit analysis? [17] Some of these points are a reiteration of the arguments already made in relation to the difficulty of enforcing the conditions. I have already dealt with those issues. As to the balance of the issues raised by the Department: a) This is an application for a reopening. The submissions are, in effect, an attack on the validity of the decision and are more properly ventilated by way of an appeal. b) Both parties made submissions to the tribunal. To the extent that these issues were raised by the Department in its submissions, the tribunal has considered them and found against the Department. To the extent that the issues were not raised before the tribunal the first time, the application is in the nature of a reopening. The Department has not explained why it should now be given an additional opportunity to put material before the tribunal, having regard to the provisions of section 137 of the QCAT Act. c) Simply listing a series of matters that may impact on the public interest, without any analysis of the actual effect, does not assist the tribunal. The inquisitorial powers of the tribunal do not extend to making a case for a party that has not bothered to undertake that exercise of its own initiative. [18] The application to reopen the tribunal’s decision on 5 October 2010 is dismissed. The Department should reinstate Mr Fuchs’ L1 symbol forthwith. -- 5 of 5 --