Anderson v Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 642

CITATION: Anderson v Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 642 PARTIES: Stephen John Anderson v Chief Executive, Department of Employment, Economic Development and Innovation APPLICATION NUMBER: GAR005-09 MATTER TYPE: Occupational regulation matters HEARING DATE: 17 June 2010 HEARD AT: BRISBANE DECISION OF: Mr J Allen - Presiding Member Ms J Ford – Member Ms A Jarrett - Member DELIVERED ON: 20 December 2010 DELIVERED AT: BRISBANE ORDERS MADE: The decision of the department to remove the L1 fishery symbol is confirmed. CATCHWORDS : Amendment of L1 symbol, Fisheries Act 1994 section 63 APPEARANCES and REPRESENTATION (if any): APPLICANT : Mr Stephen Anderson Mr Samantha Evans assisted Mr Anderson RESPONDENT: Chief Executive, Department of Employment, Economic Development and Innovation represented by Ms Stephanie Slade -- 1 of 19 -- GAR005-09 / Page 2 of 19 REASONS FOR DECISION 1 Mr Stephen Anderson has been in the fishing industry since 1982 and has held a commercial fishing boat licence since 1996. This application does not concern his original licence FCDX but one which he purchased in 2007, commercial fishing boat licence 13105 with boat mark FXRZ. On purchase the licence had L1, L3, N6, T1 symbols attached and 1,150 Queensland East Coast Trawl Efforts Units. 2 The Respondent introduced the “Policy for the Removal of Excess Fishing Capacity in Queensland’s Line, Crab and, Beam Trawl and Eel Fisheries” on 18 July 2008. Following a show cause process commenced under that policy on 1 August 2008 a delegate of the respondent made a decision on 19 November 2009 to remove the L1 symbol from licence 13105. That symbol in accordance with the Fisheries Regulations 2008, enables the holder of it to use fishing lines to fish for Fin Fish, other than Spanish Mackerel or regulated coral reef fin fish in the designated areas. 3 Mr Anderson has made application to the tribunal to review the decision of the respondent to remove the L1 fishery symbol from his licence. 4 The Tribunal notes that this application was heard with a separate application to review decisions of the respondent to remove both a C1 and L1 symbol form Mr Anderson’s primary licence, being application FHR083-09. THE LAW 5 The original decision of the respondent was made in accordance with section 63 of the Fisheries Act 1994 and a right to apply to the Tribunal for a review of that decision is contained in section 185 of the Fisheries Act 1994. The grounds for review under section 185(1) of the Fisheries Act 1994 are as follows: a The decision of the chief executive was contrary to this Act; b The decision of the chief executive was manifestly unfair; c The decision of the chief executive will cause severe personal hardship to the person. The Tribunal notes that Mr Anderson has raised the grounds of the decision being manifestly unfair and that it will cause him severe personal hardship. In accordance with sub-section 185(2)(a) of the Fisheries Act 1994 a decision of the chief executive about policy cannot be reviewed. When the Tribunal is exercising its review jurisdiction in accordance with section 20 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) the purpose of the review is to produce the correct and preferable decision and the Tribunal must hear and decide the matter by way of a fresh hearing on the merits. The Tribunal must in accordance with section 19 of the QCAT Act decide the review in accordance with the Act under which the decision being reviewed was made and has all the functions of the decision- maker for the decision being reviewed. The Tribunal then steps into the shoes of the decision maker in making a fresh decision based on the framework under which the decision was made having regard to the evidence before the -- 2 of 19 -- GAR005-09 / Page 3 of 19 original decision maker and any other evidence which is accepted by the Tribunal. 6 The amendment of an authority in accordance with section 63 of the Fisheries Act 1994 requires that the chief executive take certain steps before the decision is made. These include the issue of a show cause letter stating the proposed amendment and the reasons for it and outlining the facts and circumstances forming the basis of the reasons and inviting the holder to show why the authority should not be amended. In this case submissions were received by the respondent on 9 October 2008 from the firm of Law Essentials with further submissions provided on 6 November 2009. In accordance with section 63(2) of the Fisheries Act 1994 the chief executive may amend the authority if, after considering all representations made within the stated time, the chief executive still considers the authority should be amended in the way mentioned in the show cause notice or in another way, having regard to the representations. 7 The chief executive’s power to amend authorities is broad and not on its face subject to limitation. The exercise of the chief executive’s power is having regard to R v Queensland Management Authority, ex parte Hewitt Holdings Pty Ltd 1993 2 QR 201 to be determined in accordance with the subject matter scope and purposes of the statute as expressed in the policy of the department in respect to the particular subject matter then under consideration, which in this case is the L1 fishery symbol. 8 The objectives of the Fisheries Act 1994 are set out in section 3 of that Act and are – To provide for the use, conservation and enhancement of the community’s fisheries resources and fish habitats in a way that seeks to apply and balance the principles of ecologically sustainable development and promote ecologically sustainable development 9 The Policy for the Removal of Excess Fishing Capacity in Queensland’s Line, Crab and, Beam Trawl and Eel Fisheries (the Policy) in its background states that: “excess fishing capacity (latent effort) has been identified in Queensland’s Line, Crab, Beam Trawl and Eel Fisheries where significant numbers of the respective fisheries symbols are not being utilised, or if they are to a very low level. Conversion of this latent effort into real fishing effort would likely result in detrimental impacts to the fisheries and their users Removal of latent effort is the most effective mechanism to ensure that fisheries management continues to meet the objectives of the Fisheries Act 1994 by ensuring the identified excess fishing capacity is not converted into real fishing effort which could effect: Future economic viability of current fisheries symbols; Fair access to the resources for other resource users; and Biological sustainability for certain species.” -- 3 of 19 -- GAR005-09 / Page 4 of 19 10 The Policy was to be implemented by: Assessing all commercial fishing boat licences with the respective symbols against the eligibility criteria outlined in the policy and use a ‘show cause’ process to propose the removal of symbols from those licences that don’t meet the criteria. Decision makers will propose the removal of the symbol if they are satisfied the fishing history for the licence fails to meet a minimum level of activity in the fishery in the identified periods. The minimum level of fishing activity will ordinarily be determined by decision makers based only on statistical returns (logbooks), which are legally binding 11 The assessment criteria for the L1 symbol was stated to be as follows: The holder has reported any catch under the L1 fishery symbol in any three of the following periods 1 July 1999 to 30 June 2000 1 July 2000 to 30 June 2001 1 July 2001 to 30 June 2002 1 July 2002 to 30 June 2003 1 July 2003 to 30 June 2004 1 July 2004 to 30 June 2005 1 July 2005 to 30 June 2006 1 July 2006 to 30 June 2007 AND The total catch taken for the period 1 July 1999 to 30 June 2007 is 3000kg or more 12 The Policy states that: In response to the show cause notice, any further information the holder wishes to provide, including any reason why the policy should not apply to the holder such as a special circumstance affecting the holder’s usual fishing pattern during the above periods will be considered by the decision maker. 13 The Respondent produced a set of Guidelines for Applying Special Circumstances in relation to the Policy. It is stated that: “This document was developed to provide guidance for decision makers in cases where the decision maker has found that the licence holder has been able to demonstrate a special circumstance that warrants the provisions in the policy being set aside. These guidelines have been developed primarily to provide consistency in the decision making process.” It is noted from the policy that the special circumstances are said to be those affecting the holder’s usual fishing pattern during the above periods. 14 There are a number of relevant special circumstances as follows: a Logbook clarification In the case that logbook records received by DPI & F does not match an operators catch records, the applicant may provide supporting -- 4 of 19 -- GAR005-09 / Page 5 of 19 documentation to demonstrate logbook errors. Examples of supporting documentation include copies of logbooks, unloading dockets and other information used to prepare annual taxation returns etc b Event An applicant would meet an event special circumstance if they are able to demonstrate that for a specified period during the policy criteria period no fishing was undertaken under any fishery symbol on the licence because of a specific reason out of the control of the operator. These reasons may include illness of the owner or a family member, the boat attached to the licence was destroyed or could not have been used for a commercial purpose or another unforeseeable or uncontrollable reason. The applicant may provide supporting documentation to clarify the event. Examples of supporting documentation include medical certificates, boat insurance claims, receipts from boat repairers etc. Minimum continual periods that constitute an event: Line, Beam trawl and eel fisheries – 6 months c Recent entrant Where a licence holder has not met the entry criteria due to insufficient opportunity to achieve the required catch levels because they did not hold the licence or the fishery symbol long enough. d Multi-endorsed and diversified fishing operation Considerations may be given to operators who have a consistent level of catch history for the fishery symbol under show cause but failed to meet the criteria for that fishery symbol because they relied on operating in a number of fisheries during the criteria period to a consistent level. e Other circumstances relevant to the L1 fishery Consideration may be given to trawler operators who are able to demonstrate a reliance on line caught product prior to the introduction of permitted species provisions in the Fisheries (East Coast trawl) Management Plan 1999… f Other Any other special circumstances that prevented a licence holder from meeting the required minimum commercial level during the criteria period. The applicant may provide supporting documentation to demonstrate any other event. 15 There is then a set of adjusted criteria provided in respect of each of the special circumstances which notes that the “decision maker is not bound by the following guidelines and can always apply other reasoning to determine a final outcome.” -- 5 of 19 -- GAR005-09 / Page 6 of 19 16 It is then for the Tribunal to apply the policy to the facts as accepted by the tribunal to determine the matter. EVIDENCE 17 The Respondent in its show cause letter of 1 August 2008 advised Mr Anderson that the catch under his L1 fishery symbol was as follows: 99/00 00/01 01/02 02/03 03/04 04/05 05/06 06/07 Total 0 0 0 0 0 0 0 0 0 18 In their response dated 9 October 2008 to the show cause letter Law Essentials on behalf of Mr Anderson raised several special circumstances; recent entrant, other circumstances relevant to the L1 fishery and the other special circumstance relating to injuries Mr Anderson had suffered in 1988. 19 In regard to the recent entrant ground it was stated that Mr Anderson purchased his licence in October 2007, outside of the criteria period, however prior to the release of the draft policy. We further note that our client held discussions with DPI & F prior to purchasing this licence, however no mention was made of any possibility of our client losing his L1 symbol through any latent effort removal policy. It was noted that no investment warning had issued in the L1 fishery. It was also raised that Mr Anderson had intended to purchase a vessel in April 2008 to attach the licence to but the funds for the vessel had been lost with the liquidation of the Sandgate Fisherman’s Co-op. and that this had impeded Mr Anderson in accessing the L1 symbol on this licence. It was also stated that the licence had a T1 symbol and consideration should be given to the fact the previous owner would have been restricted by the permitted species provisions in the Trawl Plan from recording any significant line fishing history. 20 In regard to the Other special circumstances it was stated that Mr Anderson suffered extensive injuries to both of his ankles in a car crash when he was 19 years old. These injuries are described as follows by Dr Michael Holt, orthopaedic surgeon, in a report dated 19 September 2005: Stephen Anderson had a fracture dislocation of his ankle and talus, which required internal fixation to stabilise his ankle and to achieve an optimal outcome for him. A fracture dislocation of the talus is a severe injury and prone to late complications. Despite good treatment Mr Stephen Anderson has gone on to develop traumatic osteo-arthritis of the ankle joint, secondary to avascular necrosis of the talus which has been occurring slowly over the last 20 years. Mr Stephen Anderson has a very stiff and painful ankle and he will require further reconstructive surgery and a fusion of the ankle to continue to function in any sort of capacity. -- 6 of 19 -- GAR005-09 / Page 7 of 19 This will leave him with a permanently stiff ankle, but hopefully a painless joint to allow him to ambulate successfully. A report form Dr Lewis Lassig, Mr Anderson’s general practitioner, dated 17 September 2008 was also provided confirming the history of severe ankle and foot injuries to both legs which has left Mr Anderson with a significant mobility impairment. It stated: Mr Anderson’s level of disability will only increase with time. His disability precludes being able to work in most occupations. It is most commendable that he continues to operate a trawler. It would be in the best interests of Mr Andersons physical and mental well being to retain a line and crab licence as this is vital in supplementing his income. As time passes Mr Anderson may function less well with the trawling aspect of his job, and rely on line and crab work. 21 Law Essentials submitted that Mr Anderson’s injuries has a serious impact on his ability to continue to operate a Trawler into the future and that he holds every intention of shifting his focus from the Trawl fishery to the line and crab fisheries. It was further submitted that Mr Anderson purchased this licence in particular to focus on the crab and line fisheries. He had paid $32,000 for this licence in October 2007, funded by a loan from QRAA. Without the line endorsements, this licence is essentially worthless. 22 In regard to Mr Anderson ability to obtain other employment it is submitted that Our client is illiterate, having left school at the age of 13. Our client left his home in Brisbane at the age of 15 to work on boats in Northern Queensland and has worked in the Torres Straits and East Coast trawl, crab net and line fisheries. Our client received his skippers ticket when he was 18 years of age. Suffice to say, our client has no experience outside the fishing industry and given his level of education, would likely not be suited to a ‘desk job’. There is no doubt that the removal of our client’s L1 symbol will not only have dire financial circumstances upon the licence holder and his family personally, both now and into the future. An earlier decision of the former Fisheries Tribunal, as a result of which Mr Anderson had an N1 symbol removed from his other licence, was also referred to. It is noted that this decision accepted that Mr Anderson has very few prospects for employment should he no longer be able to earn a living from commercial fishing 23 Following the receipt of this information the Respondent requested further information in regard to demonstrating that Mr Anderson purchased the licence to focus on the crab and line fisheries. Information was also requested to demonstrate that if Mr Anderson were physically unable to continue trawl operations in the future, he would be physically able to operate in the L1 fishery. Mr Anderson provided this on 16 November 2009 by way of a letter from Ms Samantha Evans, his partner. It encloses a copy of the Business Plan used when the QRAA loan was obtained, a copy of the first page of the Sale agreement for boat licence FXRZ and photos of a boat with outboard and line equipment. In regard to the business plan it states that “as you can see there -- 7 of 19 -- GAR005-09 / Page 8 of 19 has always been an intent to shift into the line and crab fisheries”. The submission further states that “Due to Stephen’s disabilities we have always had to plan ahead. Stephen’s disabilities have made the line and crab sectors a primary factor in his future”. It is noted that the boat in the photo provided has boat mark FCDX2 (which relates to his other fishing licence) on it. Ms Evans describes line fishing as being less labor intense with much less demands on the body and set out the heavy equipment involved in trawling. There is also a further letter from Dr Lassig dated 12 November 2009 which states: Mr Anderson is becoming less functional with time, and it will occur soon that he will not be fit or safe to do open water trawling, If he is to maintain expenses for his commercial fishing vessel and maintain a viable income it would be of great benefit to have a licence for line fishing and crabbing, as this type of commercial fishing is less physically demanding and is much safer for someone with a disability. The Business Plan sets out Business Goals as follows: Over the next 5 years I plan to continue to upgrade my vessel when finances allow, expand my fishing operations with more nights, and another licence to expand in other areas of the industry. The business plan then sets out a Proposal as follows: To purchase another licence and more effort units. Having more effort units will allow me to work more nights. At present I have 4213 effort units, which equates to 150 nights per year, which only allows 13 nights for 11 months of the year, This will in turn increase productivity and turnover. The licence will allow me to use my endorsements more freely without the restrictions of the T1 and the potential of a second vessel or leasing. There are several packages available with asking price for effort units up to $40 per effort unit and also being large packages, licenses up to $25,000.00. At present a small package has become available 1150 effort units and T1 L1 L3 and N6 for $29,250+GST which is what I require. The plan further states that I haven’t put a time frame on purchasing a second vessel as circumstances can change, but if everything goes to plan I expect to expand within 5 years. 24 The Respondent’s reasons for decision recite the facts as mentioned above and notes that the catch under the L1 fishery symbol during the criteria period and recorded in commercial logbooks is not sufficient to demonstrate a minimum level of fishing activity as defined under the policy. The reasons then deal with the special circumstances which might apply in this particular case. In regard to the recent entrant special circumstance it was noted that Mr Anderson was first named as the holder of the relevant licence on 6 November 2007 and that he qualifies as a recent entrant. It was also noted that the licence was in “no boat” status for the full time that Mr Anderson had been the holder and that he had been unable to obtain a boat due to finances not being available from the Sandgate Fisherman’s Co-op. -- 8 of 19 -- GAR005-09 / Page 9 of 19 25 The decision maker was satisfied that Mr Anderson had insufficient opportunity to achieve catches of 500kg or more in two 12 months periods as required under the adjusted criteria for recent entrants under the special circumstances guidelines. The decision maker then looked at whether Mr Anderson had demonstrated reliance (or intended reliance) on the L1 fishery symbol, in accordance with the special circumstance guidelines. It was determined that there was no reliance as there were no catches under the L1 symbol. It was also mentioned that there had been only very limited line fishing under the L3 fishery symbol and no operation under the L1 fishery under the other commercial fishing boat licence held by Mr Anderson. In regard to the business plan it was noted that it does not specifically mention intent to line fish. In regard to the photos of the boat and fishing gear the decision maker noted the tender boat is authorised to operate under the other commercial fishing boat licence and that the L1 under this licence does not have any authorised tender vessels and that the line fishing apparatus could be used for recreational fishing. It was stated that, on the basis of the lack of activities under all line fishing endorsements available to Mr Anderson, and in the absence of any clear intent to line fish the decision maker was not satisfied that a reliance or intended reliance on the L1 fishery has been demonstrated. 26 The decision maker also considered the event special circumstance as a result of Mr Anderson being impeded in undertaking operations in the L1 fishery due to not having a boat and not being in a financial position to acquire a boat to attach to the relevant licence. As there was no catch to substitute the decision maker found that even if they accepted that an event occurred that they would not find that the L1 fishery symbol should be retained. 27 The decision maker then looked at the issue of the impact of Mr Andersons injuries on his future ability to operate a trawler. This included the assertion that Mr Anderson had purchased the relevant licence with the intent to shift focus from the trawl fishery to the line and crab fisheries in the future as a consequence of his injuries. The decision maker referred to the letter of Dr Lewis Lassig mentioned above which stated that Mr Anderson would be able to line fish if he were no longer able to operate in the trawl fishery. The decision maker stated that in their experience the line fishery can be equally as physically demanding as operating a trawler. Despite requests they had not been provided with information that satisfied them that Mr Anderson would be physically able to line fish if he were no longer able to operate in the trawl fishery. The decision maker was not satisfied that there was an intent to shift focus to the line and, crab fishery and while noting that the business plan indicates a wish to expand the business and expand in other areas of the industry, it did not specifically mention intent to line fish. 28 The decision maker considered whether Mr Anderson will suffer social and financial hardship as a result of the removal of the L1 fishery symbol. The decision maker stated they had been provided with no information to demonstrate that an immediate financial impact will result from the decision and that it was not evident that Mr Anderson would have to restructure his fishing operations in any way or that he would have to seek employment outside of the fishing industry. It was accepted that the decision removes value from the relevant licence but stated that, however the L1 fishery symbol would be unlikely to attract a high value due to the lack of catch history. A further -- 9 of 19 -- GAR005-09 / Page 10 of 19 reference was made to the lack of demonstration of an intent to line fish in the future and adding in regard to the business plan that this could cover a range of operations including land based operations. The decision maker concluded by stating that in taking into account all of the considerations above they were reasonably satisfied that the relevant licence has not been used in the L1 fishery to a level as defined by the policy and consequently were not reasonably satisfied that the licence holder has a commercial reliance on the L1 fishery symbol. They further determined that in weighing the licence holder’s circumstances with the objective of reducing excess fishing capacity, including the hardship that the licence holder might incur from its removal, were not reasonably satisfied that the policy should be set aside in the particular circumstances provided in response to the show cause. 29 Mr Anderson made written submissions in support of his application which relevantly provided as follows: a While it is possible the line fishing equipment could be used for recreational purposes in this situation it is not. It may not be the best or flashiest but it works. The snapper winches are great for me as they can be used while sitting down. These were the first items that I purchased from another commercial fisherman, Most of my equipment has been purchased second hand. In the future I will purchase the appropriate equipment to cater for my operations. b I obviously had no control over the previous owner’s history but as stated there has always been intent. c The business plan submitted states that we wanted to expand and use our endorsements more freely I live in Brisbane, my family and support networks are in Brisbane, and I do not have the money or the capabilities to move north in the C3 and L3 fisheries. d Before purchasing this licence, spoke to the department about any problems with the L1 fishery. There was no financial warning and told there may be something next year but everything OK. I am in no position to throw away my money. Symbol trading allows for the transfer of symbols, this is why we purchased this licence FXRZ as stated in the business plan. It was stated there would be no problem with symbol trading of my symbols C1, L1 and M1 between FCDX and FXRZ, I relied on this information, Unfortunately, for us the boat length on the Coraki was overlooked (as it had a M1); it was assumed that as the long as the boat endorsed with the FXRZ was under 14 m, symbol trading was fine. This was not so as the Coraki is 14.08m and the m1 may only exist on the Coraki if it stays on the Coraki, at present we have a temporary transfer but due to policies constantly changing this could only be given for 18 months. In my situation you will see I need my endorsements to stay actively involved in the fishing industry. e It is only possible for me to use one L1 symbol at any one time so in actual fact all I personally need is my L1 + 2 from FCDX. This L1 is something I paid for and this will devalue my purchase. My licences are continuing to be devalued by policy. I have no superannuation and a lot of debt to pay. I have a lot of future expenses to provide an income for my family and me. -- 10 of 19 -- GAR005-09 / Page 11 of 19 f When discussing future line fishing Mr Anderson stated, My L1 + 2 allows me to have my primary and two tenders. The value of my L1 is increased because of the two tenders. I specifically sought this on my licence. While crabbing and line fishing on one vessel Mr Anderson intended to put a skipper on his other vessel for trawling in the East Coast king prawn fishery. I am just unable to run a business without the help and participation of others so by putting a skipper on my other vessel this will increase my income and allow me to crab and line. He stated, my business will be efficient and viable as well as a safe and rewarding. g I have worked extremely hard and I do have much greater than average reliance to derive my income from diversified fishing due to my disability. My actual reliance in the crab and line fisheries has always been in the future. I have no other sources of income and I have invested in my future when finances have allowed. h That the physical impact of steaming would be similar whether it was line or trawl but this is not an issue for me whatsoever as when steaming I am sitting down inside my wheel house and not exposed to any safety risks or increased pain. When working on my trawler the physical demands and risks are so much more than would be in the line fishery. i In September 2007 we applied for finance from QRAA again, for the purchase of another licence so we could use our endorsements more freely specifically our M1, C1 and L1 + 2. Our application was accepted and we purchased a licence. 30 Mr Anderson’s mother, Mrs Rita Anderson provided a written statement to the Tribunal setting out her knowledge of the history of Mr Anderson’s injury to his ankles and the financial support that she and other family members had provided to assist him in his business. She stated that he has so far refused to apply for a disability pension, as he sees this as giving up and that it is a matter of pride for him to earn a living and support his family. She further stated that he has fitted his trawler with extra safety features and handrails to assist him when he is mobilising around his deck and he has an experienced deckhand to assist him. She concluded by saying that as his mother, I worry about the adverse effect on his mental state if, due to policy decision, he was prevented from being a productive and valued member of the community, doing the work he loves. I cannot think of any other kind of work which would give him a comparable quality of life with which he could earn a living, taking into consideration his very limited mobility and academic skills. 31 A letter was also received from Mrs Laurel Evans stating that she had supported Mr Anderson and Ms Evans by way of practical assistance and a loan of $33,000 and that most of the business equipment is housed on her property. She stated that it is excellent to see both Stephen and Samantha achieving in what is an exhausting situation and that he continues to work despite the pain he faces. 32 Mr Anderson provided a copy of the Worrells, forensic and forensic accountant’s advice to creditors for the Sandgate Fisherman’s Co-op Society Ltd. This advice lists Stephen John Anderson as a creditor in the amount of $21,974.40 and states that there will be dividend to creditors. -- 11 of 19 -- GAR005-09 / Page 12 of 19 33 The Respondent also provided written submissions in respect of the application which relevantly stated as follows: a The policy was designed to remove excess fishing capacity in Queensland’s line, crab, beam trawl and eel fisheries, this was to be done through the removal of latent fishing symbols; that is those fishing symbols that have been historically under utilised. As such, removal of fishing symbols was based on catch history of the licence i.e. was retrospective. b Given, it is the departments submission that the premise of both the Policy and the special circumstances including the other (all fishery) special circumstances was to provide licence holders with the opportunity to demonstrate why they did not meet the policy catch criteria within the designated period i.e. why they did not meet catch levels defined in the policy as representing a commercial reliance on the symbol. c As a consequence, the special circumstance were to be applied in the context of the catch history of the symbol under show cause, not on the basis of future use. This in itself is consistent with how the policy was structured and implemented. d With respect to the current appeal, catch history records held by Fisheries Queensland indicate that the appellant’s usual fishing operation is based almost entirely on the trawl fishery. e For instance the combined catch history of both licences shows that only one L1 catch has been recorded on either licence. No L1 catch has been recorded on licence FXRZ. f Fisheries Queensland records indicate that commercial fishing boat licence 13105 with boat mark FXRZ was transferred to the licence holder on 6 November 2007. Therefore the appellant was eligible for consideration under the recent entrant special circumstance. The additional information provided by the appellant did not alter the departments view on this issue. This is primarily because a licence holder must meet the following criteria to be considered as recent entrant ..Logbook records indicate no catch has been recorded against the L1 fishery symbol since commercial fishing boat licence 13105 with boat mark FXRZ was transferred to the appellant including in 2008 and 2009. Therefore, the policy was not set aside on the grounds the appellant met criteria for the recent entrant special circumstance. Consideration was given to the appellant’s investment in the L1 fishery in the original decision notice. The department upholds the viewpoints of the initial decision maker with respect to this matter. g The following were considered by the department under special circumstances defined as other (all fishery) symbols.. previous actions including the acquisition of a Q.R.A.A. loan demonstrates that the appellant has always intended to operate a multi-endorsed and diversified fishing operation that included the L1 and C1 fishery symbol. With respect to the Q.R.A.A. loan, it is acknowledged that the appellant did receive a loan from the Q.R.A.A. Please note however, that on review of the business plan and the decision notice the department confirms the original decision maker’s conclusion. As outlined by the original decision maker, the business plan -- 12 of 19 -- GAR005-09 / Page 13 of 19 advises that the appellant wishes to expand into other areas of the industry. It also outlines how the loan will be used with respect to the trawl fishing operation, which based on logbook records is where the appellant’s commercial reliance resides. For example, the business plan refers to purchase additional effort units and upgrades relating to his trawl operation. This business plan does not outline any plans for either C1 or L1 fishery symbols. h Circumstances surrounding Mr Anderson’s appeal on grounds of injuries sustained in a car accident principally relate to his future use or intended reliance on the C1 and L1 fishery symbols. As a consequence, if the department were to return the C1 fishery symbol and/or the L1 fishery symbol, it would be doing so on an understanding that the appellant was intending to increase effort on these symbols. This in itself would be inconsistent with the objectives of the policy which was designed to remove symbols identified as latent due to concerns their activation would place undue risk on the sustainability of fishing stocks. The department also considers the return of latent fishing symbols for future use to be inconsistent with previous decisions made under the latent effort review process. Further to this, the Department has no jurisdiction on what Mr Anderson does with the C1 and L1 fishery symbols if they are returned. For instance, Mr Anderson will have a number of options available to him if these symbols are returned including: (1) Increasing effort on all three symbols either immediately or in the future; (2) Leasing the symbols to persons wishing to fish in the C1 and/or L1 fisheries more extensively; (3) Selling the symbols to one or more person’s intent on fishing in the C1 and/or L1 fisheries full time. All three of these options have the potential to increase effort in the C1 and L1 fisheries which is what the policy was designated to prevent. The Department also acknowledges statements from Dr Lewis Lassig dated 12 November 2009, as well as previous Fisheries tribunal decision from 2006. This decision related to an unsuccessful appeal by Mr Anderson against the removal of a net fishing symbol and stated If he [Mr Anderson] is unable to maintain his fishing business, then he will face significant financial and social hardship, given the extent of the injury to his ankle and difficulties in getting employment elsewhere. These possibilities must be weighed in favour of exercising the discretion in Mr Anderson’s favour. While acknowledging this statement, the department considers that the viability of Mr Anderson’s current operation has not been compromised by the removal of the C1 and L1 fishery symbols. Catch records for Mr Anderson indicates that both licences operate almost exclusively in the Trawl fishery and have done so for a considerable period. -- 13 of 19 -- GAR005-09 / Page 14 of 19 In addition, documents supplied by the appellant including a business plan submitted in conjunction with his Q.R.A.A. application indicate that the most significant investments in his operations have been within the trawl fishery. It is noted that Mr Anderson has indicated throughout this application that the premise of his appeal is that his injury will require him to move into the crab and line fishing industries as trawl fishing will place too high a demand on his body. It is the viewpoint of the Department however, that there are a number of options still available to Mr Anderson. These include – the sale of his trawl symbol/s and units (and/or other unused symbols) to purchase appropriate C1/L1 symbols that have passed the latent effort process; leasing an appropriate licence from another operator, whilst leasing out one of his licences. It is the departments understanding however, that one of the appellant’s principal objections to the above is that he still intends to have one licence operating in the trawl fishery under another skipper. The remaining licence however will be operated by Mr Anderson in the crab, line and injuries permitting, at times in the trawl fishery (most likely the Moreton Bay Fishery). The department considers these objections to be related to his preferred business set-up, not a special circumstance that warrants setting aside the Policy. The principal ground of the appeal are that Mr Anderson’s injuries have compromised his long-term capacity to operate in the trawl fishery. Therefore his reliance on the C1 and L1 fishery symbols will increase in the future. To reinstate one or all of these symbols on these grounds however would be inconsistent with the objectives of the policy which is designed to prevent latent licence becoming active, thus placing strain on the respective stocks. While the department acknowledges the injuries sustained by Mr Anderson, Fisheries Queensland does not believe the removal of Mr Anderson’s C1 and L1 symbols will have an undue impact on his current fishing operation or preclude him from entering the C1 an/or L1 fisheries at a later date. 34 The applicant made statements and submissions at the hearing relevantly as follows : a FCDX is our licence we bought licence FXRZ because symbol trading came in. The purpose was to transfer symbols onto the new licence. b We never wanted two trawlers we never wanted two licences only wanted to retain endorsements we had on original licence but because of the way policy is structured we could not put our endorsements to work under the policy. c Once symbol trading became free and you could take symbols from a licence and lease or transfer to another licence that then gave us the option -- 14 of 19 -- GAR005-09 / Page 15 of 19 if we had purchased another primary licence of shifting our symbols from one licence to another so could use them freely. d When purchased FXRZ it was to free up our symbols. Can’t crab and trawl at the same time. You can crab and net and crab and line. e Our primary boat Coraki licence FCDX is 14.08 which means it is a unique case. A crabbing licence can’t go on a boat over 14 metres. So its crabbing licence can’t be replaced. f When purchased licence FXRZ we were also told by Department that the L1 Fishery would probably opt for an under 14 metre rule as well. So when we purchased FXRZ the L1 was quite an essential part of that package as our L1 on Coraki cannot be shifted off Coraki and back on if that 14 metre rule was to come into play. g We were told by the department it would not be a problem to shift L1 on and off Coraki they overlooked the 14.08 length of Coraki. h Bought another licence to activate crab and line symbols from FCDX. i Intended to use a smaller boat as primary under licence FXRZ and transfer L1 plus tenders and C1 to that licence. I would use the smaller boat as a Moreton Bay prawn trawler and a crab and line vessel. I would use Coraki (FCDX) to target eastern king prawns. j Difficulty due to issue of not being able to transfer those symbols back to FCDX as it is over 14 Metres. I have been able to transfer M1 symbol form Coraki to new vessel Namoi which is 11.5 ms with confirmation from the Department it can be transferred back to FCDX as long it occurs within 18 months.. k When purchasing FXRZ I was aware that had to pay for catch history l Confirmed that when purchased license in accordance with the business plan needed the effort units because they intended to put a skipper on Coraki and they would need extra nights. m The value of the L1 on FXRZ is mainly if there is a rule brought in that the L1 and tenders could not be transferred back to FCDX if they changed the rules there would be a huge value in the L1 on FXRZ. n We only want the one L1 we want the one with two tenders on it if we can freely symbol trade. o We could surrender L1 off FXRZ if could trade L1 with tenders off FCDX back and forth. It is about keeping Steve in fishery we need to be able to trade. We could also surrender the C3 and L3 on FCDX. p We don’t want two boats but to have one is not an option. Last year Steve did 66 nights if he stopped he would not survive, He needs to do something, that is where crab and line come in. he needs other boat in trawl sector and that is what we want with Steve in line and crab. -- 15 of 19 -- GAR005-09 / Page 16 of 19 q Commercial reliance for us different to others. I just need my life as a fisherman to carry on. r We know have not met catch criteria and that would not have changed with boat not debating about commercial reliance. s One L1 is not going to change sustainability. t I don’t need L1 off FXRZ it doesn’t mean anything to me unless lose L1 off FCDX. When purchased FXRZ I did not need catch history on L1. I wanted to use my current symbols more freely. If I wanted to crab had to remove trawl gear, which took two days. Could put FXRZ on crab pots and speed boat, If I had FXRZ I could attach L1 symbol to it. Purchased Licence with no L1 history as only needed primary to activate endorsements more freely. Then realised could not take symbols off and put them back on u I bought licence with no history because that is what I could afford. Not concerned about lack of history because told by department that there was nothing in place about the L1 except may be a boat length limit to 14 ms. v An L1 symbol now is $10,000 without a primary licence w We need two primary licences due to Steve’s disability. We know he won’t be able to trawl in the future. Coraki is set up to cater for his needs. The other boat isn’t but it doesn’t have to be if he can line fish and crab. x Referred to business plan where it stated “Licence will allow me to use my endorsements more freely without the restrictions of the T1 with potential of a second vessel or leasing.” The endorsements referred to are our C1 and LI symbols. y Steve’s injures will continue and fact he wont be able to trawl means financial situations needs to keep the trawling licence. We would not be here if he did not have injury he would be able to continue to trawl. We have been disadvantaged and lost assets in other areas of fishery. We have a lot of debt and children to support. z Investment in line fishing not for recreational purposes and while tenders currently marked FCDX hoped to move them to FXRZ. While not recent investments they were purchased for Steve to use for line fishing in the future. 35 The respondent representative made the following relevant submissions at the hearing: a There was no boat attached to licence FXRZ at the time the decision was made and there had not been since the time the licence was purchased by Mr Anderson. b There is boat replacement policy limited to the L1 fishery due to concerns in regard to sustainability. If you have a boat attached to a licence with an L1 symbol which is below 14 metres long than you can replace that boat with a boat up to 14 metres long. If boat is between 14 and 20 metres you can replace it with a boat up to the same size. As the L1 fishery is currently -- 16 of 19 -- GAR005-09 / Page 17 of 19 under review may be after the review the boat replacement policy will be removed. There was no change in this policy at around the time the licence for FXRZ was purchased. c When purchasing a licence anyone in the fishing industry would have had regard to the catch history associated with the symbols attached to the licence. d The restriction on Mr Anderson use of his symbols is due to the requirement that a trawl vessel can only have certain fish on board and that restricts the use of other symbols while the boat is sea trawling. There is a difficulty in coming into port and removing the trawl gear. e There was a special circumstance for the L1 fishery to look at L1 catch prior to the 1999 management plan but this did not apply here as there was no catch. f The level of commercial reliance can be different for different people. This was accommodated by having relatively low criteria to meet. Amount of catch required under policy is only a few days fishing in a particular year. g The multi-endorsed special circumstance was difficult to apply here as Steve did not have opportunity to use symbol. h In regard to the other special circumstance in respect of Steve’s disability have to ensure policy applied consistently. A number of applications have been made where the applicant wishes to operate in a fishery in the future. Where there is no past reliance have refused applications. i While he is a recent entrant he was unable to demonstrate catch history during the criteria period. The next step is to determine how to adjust catch history to accommodate that, as there was no boat there is no more recent history. Looked at intended reliance but very small evidence of that in business plan which doesn’t specifically deal with L1. Requested evidence of investment to show future intent. Could not see future reliance clearly from evidence provided. j There was no latent effort policy in 2007 and the only advantage of having two L1s was if each had catch history which could be combined on a symbol transfer to one of the licences. There was relevant due to the investment warning but there was no catch on either L1 symbol so it was of no benefit. DISCUSSION 36 Mr Anderson was unable to demonstrate the minimum level of catch history to meet the criteria under the policy in respect of the L1 fishery. The department then applied the special circumstances guidelines to determine if he would be able to retain his L1 symbol based on an adjusted set of catch criteria or circumstances generally which prevented the licence holder from meeting the catch criteria. -- 17 of 19 -- GAR005-09 / Page 18 of 19 37 Mr Anderson has fished predominantly in the trawler fishery for many years but due to injuries to his ankles as evidenced by reports from his doctors he will soon not be able to trawl. The doctor’s evidence is accepted by the Tribunal. As a result he has an intention to use some of the other symbols available to him under his primary licence FCDX being his C1 and L1 plus 2 tenders. Mr Anderson has great difficulty complying with departmental policy inn regard to such things as the removal of trawl gear before fishing under symbols due to his injuries. Based on his business plan and written and oral evidence the Tribunal accepts that Mr Anderson has an intention of maintaining ownership of his trawl vessel Coraki (FCDX) with a skipper on board which would require further effort units to pay for the skippers share. And further that he wished to avail himself of symbol trading to enable his C1 and L1 plus two tenders attached to licence FCDX to be transferred to a new primary licence which would then free up those symbols as they would not be subject to the requirements of the T1 under FCDX. 38 To carry out this plan Mr Anderson purchased the licence with boat mark FXRZ in October 2007 for an amount of $32,000 which came with a T1 symbol and effort units and also had various symbols attached including an L1. At the hearing Mr Anderson made it clear that it was his C1 and L1 plus 2 attached to licence FCDX which he wished to transfer to the FXRZ and free up the use of. The L1 symbol on licence FXRZ was only important if he was not able to transfer the L1 plus 2 back to the FCDX due to the fact that the boat attached to the FCDX mark was 14.08 metres long. Mr Anderson acknowledged that there was no catch history attached to the L1 on FXRZ and that was what he could afford and the important thing was the primary licence. 39 The department accepted that Mr Anderson qualified as a recent entrant to the L1 fishery under licence FXRZ but were not satisfied of his intended reliance on the fishery in regard to his investment and whether he would be physically able to line fish. The department noted that Mr Anderson did not have any catch under his L1 symbol under licence FCDX. Based on Mr Anderson’s evidence that his intention was to transfer the L1 plus 2 from FCDX to licence FXRZ and that it was only if there was a change in policy that the L1 on licence FXRZ would become important the tribunal is satisfied that there was no intended reliance on the L1 under licence FXRZ. 40 In terms of other special circumstances relevant to the L1 fishery there was no evidence to show that there had been reliance by the previous holder of the licence prior to 1999 and so that special circumstance does not apply. 41 The other special circumstances relates to Mr Anderson’s injuries and the need he will soon have to move out of the trawl sector and into other fisheries, which he claims will be line fishing and crabbing. While Mr Anderson has some line fishing equipment it is old and he has no catch history for L1. The Tribunal fully appreciates Mr Anderson’s personal circumstances and accepts that if he believes he will be able to line fish in the future and that is supported by his doctors it is not for the Tribunal or the department to second guess him. The tribunal does not consider that the L1 which is attached to this licence is one which should be considered in regard to those future plans of Mr Anderson. On his own evidence it was his intention that his other L1 from licence FCDX be transferred to this licence. -- 18 of 19 -- GAR005-09 / Page 19 of 19 42 The tribunal is satisfied that when he purchased licence 13105 with boat mark FXRZ Mr Anderson’s intention was to obtain the benefit of having another primary licence and the additional effort units available under that licence and that he did not place great value on the L1 attached to the licence knowing that it had no catch history. He has therefore obtained substantial benefit from his investment and that while he will suffer some loss as a result of the removal of the L1 symbol this was not a symbol he placed a high value on. The Tribunal notes that Mr Anderson indicated that he would surrender this L1 symbol if it would assist in him retaining his L1 symbol under licence FCDX and that this will be taken into account in the decision to be made under the application to review in respect of licence FCDX. 43 In weighing the purpose of the policy in ensuring that latent effort in the L1 fishery is not converted to real fishing effort against Mr Anderson’s circumstances the Tribunal is satisfied that the decision of the department is not manifestly unfair and will not cause Mr Anderson severe personal hardship. There are no special circumstances which warrant the policy being set aside in regard to the L1 symbol attached to licence FXRZ and will confirm the decision of the department to remove the L1 fishery symbol. -- 19 of 19 --