Bobbermen v Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 533

CITATION: Bobbermen v Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 533 PARTIES: Mr Allan Bobbermen v Chief Executive, Department of Employment, Economic Development and Innovation APPLICATION NUMBER: FHR061-09 and FHR062-09 MATTER TYPE: General administrative review matters HEARING DATE: 15 June 2010 HEARD AT: Level 10 BOQ Centre 259 Queen Street BRISBANE QLD 4000 DECISION OF: Peter Wulf, Patricia Hanly, Shirley Watters DELIVERED ON: Oral Decision - 15 June 2010 Written Reasons - 13 August 2010 DELIVERED AT: Level 10 BOQ Centre 259 Queen Street BRISBANE QLD 4000 ORDERS MADE: The Respondent’s decision of 2 July 2009 to amend Licence Number 17144 with Boat Mark FYEC to remove the C1 symbol is set aside. The Respondent’s decision of 2 July 2009 to amend Licence Number 21043 with Boat Mark FXWX to remove the C1 symbol is confirmed CATCHWORDS : Fisheries, Crab, Investment Warning, Catch History, Multiple Licences and Symbols, Family Business, Special Circumstances APPEARANCES and REPRESENTATION (if any): APPLICANT : Mr Allan Bobbermen RESPONDENT: Chief Executive, Department of Employment, Economic Development and Innovation represented by Mr Phil Gaffney and Ms Susan Payne -- 1 of 9 -- FHR061-09 and FHR062-09 / Page 2 of 9 REASONS FOR DECISION 1. The applicant, Mr Allan Bobbermen and his partner (not a party to the appeal) has appealed against two decisions of a delegate of the Chief Executive, Department of Employment, Economic Development and Innovation dated 2 July 2009. The decisions were to amend Mr Bobbermen’s primary commercial fishing boat licences 17144 with boat mark FYEC and 21043 with boat mark FXWX by removing his C1 fishery symbols pursuant to s.63(2) of the Fisheries Act 1994. 2. This matter was heard on 15 June 2010. An oral decision was delivered at the hearing. These are written reasons for the making of that decision. 3. The appeal was filed in the Fisheries Tribunal. Effective 1 December, 2009, the Fisheries Tribunal was abolished. Under the transitional provisions of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), the Queensland Civil and Administrative Tribunal (QCAT) must deal with the proceeding. 4. 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. 5. 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, 6. It is not the Tribunal’s role to second-guess the adoption of the Policy and the -- 2 of 9 -- FHR061-09 and FHR062-09 / Page 3 of 9 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. 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. In this case, Mr Bobbermen has argued that the decision is manifestly unfair and will cause him severe personal hardship. 7. 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: 1 Previously s 196(2)(a) -- 3 of 9 -- FHR061-09 and FHR062-09 / Page 4 of 9 13 September 2003 to 12 September 2007” 8. 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. 9. 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. 10. 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 -- 4 of 9 -- FHR061-09 and FHR062-09 / Page 5 of 9 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. 11. The applicant has been involved in the fishing industry for many years. Mr Bobbermen advised the Tribunal that he was a 3rd Generation fisher and specifically a 2 nd Generation fisher within the Cardwell area. Mr Bobbermen has been involved within the fishing industry for many years and therefore had an understanding of how the industry operated. 12. As part of the Representative Areas Program managed by the Commonwealth, Mr Bobbermen surrendered his previous licences in the buy back in 2004. Following the buyback, the applicant purchased primary commercial fishing boat licences 17144 with boat mark FYEC and 21043 with boat mark FXWX in February 2006 and April 2005 respectively. Both licences were multi-endorsed with numerous symbols. 13. The licences were transferred after the release of investment warning for the C1 fishery on 12 September 2003. Post the purchase of the licences, decisions by the Respondent have been made to remove the L1 symbols from both licences. It is noted that Mr Bobbermen did not contest before the Tribunal the loss of these symbols and was happy for this to occur as he did not utilise the symbols and had no intention to utilise them in the future. 14. The investment warning issued on 12 September 2003 advised that any future 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 was likely to adversely affect the sustainability of stocks in that fishery. 15. The investment warning warned people with a current interest or considering investing in any of these fisheries that increases in their commercial and -- 5 of 9 -- FHR061-09 and FHR062-09 / Page 6 of 9 current level of catches or fishing effort might not be recognised in future management arrangements. 16. The delegate determined that Mr Bobbermen 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. The delegate decided to exercise the discretion to amend the licences by removing the C1 symbols. 17. When assessing the overall catch history for the two licences held by Mr Bobbermen since he purchased them in 2005 and 2006, from information provided by the Logbook Coordinator within the Fisheries Assessment and Monitoring team of the Respondent, it is apparent to the Tribunal that Mr Bobbermen is primarily involved within the net and line fisheries with reasonable catches in both fisheries overall as a whole. Specifically, boat mark FXWX has higher catches in the net fishery with limited catch in the line fisheries while boat mark FYEC has excellent catch history in the net fishery with good catch history during the time Mr Bobbermen has owned the licence in the line fishery. However, it would appear from the evidence, that the licences are used for the majority of the time in the net fishery. Importantly, the evidence before the Tribunal is that it is very common for fishers in the net fishery to also utilise their C1 symbols at the same time due to proximity to their nets to catch crab and gain additional income. 18. When making an assessment of the catch data for Mr Bobbermen’s licences, the following is observed: (a) For licence number 17144 with boat mark FYEC, the catch history shows: (i) For the first period, this being 13 September 1999 to 12 September 2003, the licence had a total catch of 1,039kg slightly below the 1,500kg required in the whole period and two (2) periods when the catch was above the minimum requirement of 250kg: 1. 13 September 2000 to 12 September 2001 = 462kg; and -- 6 of 9 -- FHR061-09 and FHR062-09 / Page 7 of 9 2. 13 September 2001 to 12 September 2002 = 451kg; (ii) For the second period, this being 13 September 2003 to 12 September 2007, the licence had a total catch of 250kg, below the 1,000kg required in the whole period with no period meeting the minimum requirement of 500kg: (b) For licence number 21043 with boat mark FXWX, the catch history shows: (i) For the first period, this being 13 September 1999 to 12 September 2003, the licence had a total catch of 72kg, well below the 1,500kg required in the whole period, and there was no periods when the catch was above the minimum requirement of 250kg; and (ii) For the second period, this being 13 September 2003 to 12 September 2007, the licence had a total catch of 3,362kg, above the 1,000kg required in the whole period with three periods meeting the minimum requirement of 500kg: 1. 13 September 2003 to 12 September 2004 = 1,838kg; 2. 13 September 2004 to 12 September 2005 = 696kg; and 3. 13 September 2006 to 12 September 2007 = 684kg. 19. Since the assessment period, in the years 2008 and 2009: (a) For licence number 17144 with boat mark FYEC, the catch has been 2,309kg and 44kg respectively; and (b) For licence number 21043 with boat mark FXWX, the catch has been 282kg and 288kg respectively. 20. Both the licences except for licence number 17144 with boat mark FYEC in 2009 meet the relevant quantities required during a specific period if assessed against that described in the Policy. 21. Mr Bobbermen’s licence number 17144 with boat mark FYEC does not satisfy the criteria under the Policy for the period from 13 September 1999 to 12 September 2003, although as acknowledged by Mr Gaffney for the -- 7 of 9 -- FHR061-09 and FHR062-09 / Page 8 of 9 Respondent, it was only just short in respect of catch history for that period. 22. In contrast, it is clear that Mr Bobbermen’s licence number 21043 with boat mark FXWX does not satisfy the criteria under the Policy for the period from 13 September 1999 to 12 September 2003. The history for the licence shows that there were very limited catches in the years to 2003 (18kg, 12kg and 43kg for the 2 nd , 3rd and 4th relevant periods). 23. When considering the catch history of the C1 symbol on licence number 17144 with boat mark FYEC for the period between 13 September 2003 and 12 September 2007, none of the periods satisfy the criteria under the Policy. The history for the licence shows that there were very limited catches in the years to 2007 (15kg, 166kg and 69kg for the 1st , 3rd and 4th relevant periods). 24. The catch history of the C1 symbol on licence number 21043 with boat mark FXWX for the period between 13 September 2003 and 12 September 2007 is very different. The catch is well above the required 1,000kg and moreover, three of the periods satisfy the criteria under the Policy. The history for the licence shows that there were good catches in the years to 2007 (1,838kg, 696kg and 684kg for the 1 st , 2nd , and 4th relevant periods). 25. It is understandable why the delegate originally determined that there was no reason for a departure from the policy when inspecting the two licences separately. 26. Mr Bobbermen argued that the history of the two C1 symbol should be considered in combination. He also argued that the loss of the two C1 symbols would cause severe personal hardship if the decision-maker did not exercise the discretion in his favour under the Policy and not amend his licence by removing his C1 symbols. 27. Mr Bobbermen fishes with his female partner. Besides living together, the evidence before the Tribunal was that they each utilise one of the licences and work in a business partnership to catch fish and crabs under the two licences. The reliance of crab across the business was apparent from the catch history on the licences since the purchase of the licences. 28. During the hearing, Mr Gaffney for the Respondent was asked what the -- 8 of 9 -- FHR061-09 and FHR062-09 / Page 9 of 9 Respondent’s likely position would have been when assessing the C1 symbol under the Policy if the catch history for licence number 17144 with boat mark FYEC for the first period of the Policy had been combined with the catch history for licence number 21043 with boat mark FXWX for the second period of the Policy. 29. Mr Gaffney advised that he would have used his discretion under the Policy and would have granted the licence holder a C1 symbol even though the catch history during the first relevant period did not fully meet the requirements under the Policy. 30. The Tribunal finds this an important statement. It is clear that Mr Bobbermen in association with his partner utilise the C1 symbol on both licences, but in combination, the loss of two C1 symbols would have a significant impact on their business. 31. The Tribunal finds that special circumstances exist in this case and the Respondent’s decision to remove the C1 symbol from both commercial fishing boat licences did not give sufficient weight to these circumstances and a discretion should now be exercised in favour of the applicant but not with respect to both C1 symbols. 32. In these circumstances, the Respondent’s decision of 2 July 2009 to amend Licence Number 17144 with Boat Mark FYEC to remove the C1 symbol is set aside and the Respondent’s decision of 2 July 2009 to amend Licence Number 21043 with Boat Mark FXWX to remove the C1 symbol is confirmed and Mr Bobbermen will be granted only one C1 symbol. -- 9 of 9 --