Ceresa & Moss v Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 535

CITATION: Ceresa & Moss v Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 535 PARTIES: Mr Laurie Ceresa and Ms Jane Moss v Chief Executive, Department of Employment, Economic Development and Innovation APPLICATION NUMBER: FHR011-09 MATTER TYPE: General administrative review matters HEARING DATE: On the Papers – 24 May 2010 HEARD AT: Level 10 BOQ Centre 259 Queen Street BRISBANE QLD 4000 DECISION OF: Richard Oliver, Elizabeth Benson-Stott, Peter Wulf DELIVERED ON: 20 July 2010 DELIVERED AT: Level 10 BOQ Centre 259 Queen Street BRISBANE QLD 4000 ORDERS MADE: The Application is dismissed. CATCHWORDS : Fisheries, Crab, Fish, Investment Warning, Catch History, Voluntary Surrender APPEARANCES and REPRESENTATION (if any): APPLICANT : RESPONDENT: -- 1 of 7 -- FHR019-09 / Page 2 of 7 REASONS FOR DECISION 1. The applicants, Mr Laurie Cerasa and Ms Jane Moss have sought an review of decision of a delegate of the Chief Executive, Department of Employment, Economic Development and Innovation dated 24 December 2008. The first decision was to amend Ms Moss’s primary commercial fishing boat licence 16723 with boat mark FMUM by removing her C1 fishery symbol pursuant to s.63(2) of the Fisheries Act 1994. The second decision was to amend Mr Ceresa’s primary commercial fishing boat licence 5911 with boat mark FVPY by removing his L1 fishery symbol pursuant to s.63(2) of the Fisheries Act 1994. 2. This matter was heard on the papers on 24 May 2010. The Applicants’ material contained extensive submissions with respect to Ms Moss’ primary commercial fishing boat licence 16723 with boat mark FMUM but almost no material with respect to Mr Ceresa’s primary commercial fishing boat licence 5911 with boat mark FVPY. Policy Background 3. 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. 4. 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, 5. It is not the Tribunal’s role to second-guess the adoption of the Policy and -- 2 of 7 -- FHR019-09 / Page 3 of 7 the reasons for it. Under s.196(2)(a) of the Fisheries Act, 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 reviewing decisions made under the Policy. In other words, it is open to an applicant/s to argue that the decision is manifestly unfair or will cause severe personal hardship. In this case, the applicants have argued that the decision is manifestly unfair and will cause him severe personal hardship. 6. For the purposes of this matter, the decision will be split into two separate sections as they relate to the different symbols. Appeal to remove C1 from Commercial Fishing Boat Licence 16723 7. Under the Policy, the minimum commercial level of catch for the C1 fishery requires that the holder has taken: i. “Crab Fishery – C1 ii. 250kg or more of crab taken under C1 symbol in three of the following four periods: 1. 13 September 1999 to 12 September 2000 2. 13 September 2000 to 12 September 2001 3. 13 September 2001 to 12 September 2002 4. 13 September 2002 to 12 September 2003 iii. OR iv. 1500kg or more of crab taken under a C1 symbol in the period: 1. 13 September 1999 to 12 September 2003 v. AND -- 3 of 7 -- FHR019-09 / Page 4 of 7 vi. 500kg or more of crab taken under a C1 symbol in any one of the following periods: 1. 13 September 2003 to 12 September 2004 2. 13 September 2004 to 12 September 2005 3. 13 September 2005 to 12 September 2006 4. 13 September 2006 to 12 September 2007 vii. OR viii. 1000kg or more of crab taken under a C1 symbol in the period: 1. 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; -- 4 of 7 -- FHR019-09 / Page 5 of 7 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. It may be noted that the power to amend a licence under s.63(2) of the Fisheries Act is discretionary. It is fundamental that the exercise of a statutory discretion cannot be fettered by a policy: see, for example, Perder Investments v Lightowler (1990) 25 FCR 150, R v Queensland Fish Management Authority: Ex Parte Hewitt [1993] 2 Qd R 201 at 204, 206. Accordingly, the Policy cannot be construed to limit the circumstances in which a symbol will not be removed where the minimum criteria are not met to those which “prevented a licence holder from meeting the required minimum commercial level”. Any other circumstances that would make it unjust to remove the symbol must be considered. 11. When making an assessment of the catch data for Ms Moss, it is clear that the licence 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 was only 113 kg caught in the years to 2003. 12. Ms Moss provided evidence as to an event that caused her to be unable to fish, this event being the birth of her children. She further provided examples of how her catch history should be amended to include the period when she was pregnant and subsequent period. It is difficult to ascertain how Ms Moss has come to her suggested catch considering the previous catch history on the licence over the period 1999 to 2003. 13. An investment warning issued on 12 September 2003 that advised that any further investment in the Queensland Mud and Blue Swimmer Crab Fishery -- 5 of 7 -- FHR019-09 / Page 6 of 7 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 were likely to adversely affect the sustainability of stocks in that fishery. 14. The investment warning warned people with a current interest or considering investing in any of these fisheries that increases in their commercial and current level of catches or fishing effort might not be recognised in future management arrangements. 15. When considering the catch history of the C1 symbol for the period between 13 September 2003 and 12 September 2007, the symbol had significant catch history (40,298kg over the relevant four years), this being the catch specifically targeted as part of the Investment Warning. 16. It is of concern that Ms Moss did not adhere to the Investment Warning and significantly increased her catch post the Investment Warning. Therefore, any decision to remove the C1 symbol was a reasonable decision consistent with the Policy. 17. It is also very important to note that the removal of the C1 symbol from Ms Moss’s primary commercial fishing boat licence 16723 with boat mark FMUM was made through a voluntary surrender process for a profit as part of the Moreton Bay Structural Adjustment Package. 18. Ms Moss was sent a show cause letter on 1 August 2008. On 21 November 2008, in a letter to the Respondent, the Appellants advised that they had just returned from being overseas for most of the year and would address the Show Cause notice. Following the Show Cause Notice, Ms Moss surrendered her licence under the Moreton Bay Structural Adjustment Package and therefore the licence no longer exists. Appeal to Remove L1 from Primary Commercial Fishing Boat Licence 5911 19. Under the Policy, the minimum commercial level of catch for the L1 fishery requires that: a. the holder has reported any catch under the L1 fisheries symbols in any three (3) of the periods from: -- 6 of 7 -- FHR019-09 / Page 7 of 7 i. 1 July 1999 to 30 June 2000; ii. 1 July 2000 to 30 June 2001; iii. 1 July 2001 to 30 June 2002; iv. 1 July 2002 to 30 June 2003; v. 1 July 2003 to 30 June 2004; vi. 1 July 2004 to 30 June 2005; vii. 1 July 2005 to 30 June 2006; and viii. 1 July 2006 to 30 June 2007; and b. the total catch for the period from 1 July 1999 to 30 June 2007 is 3,000 kg or more. 20. As noted, there were no written submissions provided by the Applicants with respect to this part of the appeal. 21. When making an assessment of the catch data for Mr Cerasa L1 symbol, it is clear that the licence 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 was only 10 kg caught in the years to 2007, with the only catch history being in 2000/01. There appears to be no reason for a departure from the Policy. Decisions 22. In considering the matter afresh as we are obliged to do, we see no reason to disturb the decision of the respondent and therefore the application is dismissed. -- 7 of 7 --