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CITATION: Jobfish Australia Pty Ltd v Chief Executive, Department of Employment, Economic Development and Innovation [2011] QCAT 437
PARTIES: Jobfish Australia Pty Ltd v Chief Executive, Department of Employment Economic Development and Innovation
APPLICATION NUMBER: FHR092-09
MATTER TYPE: General administrative review matters
HEARING DATE: 7 June 2010 and 7 March 2011
HEARD AT: Brisbane
DECISION OF: James Allen, Presiding Member Susan Bothmann, Member Annie Jarrett, Member
DELIVERED ON: 6 September 2011
DELIVERED AT: Brisbane
ORDERS MADE: The decision of the Respondent dated 12 October 2009 to remove the Applicant’s E fishery symbol is confirmed.
CATCHWORDS: Removal of E Fishery Symbol – special circumstances – eel fishery
Fisheries Act 1994, s 63
APPEARANCES and REPRESENTATION (if any):
APPLICANT: Jobfish Australia Pty Ltd represented by Mr G Rhead
RESPONDENT: Chief Executive, Department of Employment, Economic Development and Innovation represented by Mr G Del Villar, barrister instructed by Ms S Payne
REASONS FOR DECISION
[1] Mr Bruce Gleeson and Mr John Gleeson have been pioneers in the eel fishery in Queensland since 1983. Jobfish, an entity controlled by them holds commercial harvest fishery licence 271 which had an E fishery symbol attached. The Chief Executive made a decision to remove the E fishery 2
symbol from the licence as a result of the implementation of a policy for the removal of excess fishing capacity in respect of the eel and other fisheries. Jobfish appealed that decision to the former Fisheries Tribunal and the matter is to be determined by the Tribunal in its review jurisdiction.
The Law
[2] The appeal to the former Fisheries Tribunal is a reviewable decision for this proceeding of the Tribunal.1 The Tribunal has the same functions which the former Fisheries Tribunal had and can only make a decision which that Tribunal could.2 The grounds of review of a decision of the Chief Executive are as follows:
a) The decision of the chief executive was contrary to the Act;
b) The decision of the chief executive was manifestly unfair; and
c) The decision of the chief executive will cause severe personal hardship to the applicant.3
Jobfish raised grounds (a) and (b) in its application for review. There are certain decisions of the Chief Executive which cannot be reviewed and these include a decision about policy.4
[3] The Chief Executive’s functions include the management, use, development and protection of fish habitats and fisheries resources generally5. The Chief Executive may, for the performance of these functions, formulate and operate arrangements for adjusting the use of fisheries resources, including, for example, by adjusting the number of authorities for a fishery6. A commercial harvest fishery licence is an authority.7 An E fishery symbol may be written on a commercial harvest fishery licence8. The Chief Executive has a broad power to amend an authority and it is in accordance with policy that the powers of the Chief Executive are exercised.9 The decision to remove the E fishery symbol was made in accordance with the Policy for the Removal of excess Fishing Capacity in Queensland’s Line, Crab Beam Trawl and Eel Fisheries. The exercise of the Chief Executive’s powers is discretionary and such an exercise cannot be fettered by a policy10. 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
1 Section 271(3) of Queensland Civil and Administrative Tribunal Act 2009. 2 Section 271(2) of QCAT Act 2009. 3 Section 196(2) of Fisheries Act 1994 (pre 1 December 2009). 4 Section 196(2) (a) of Fisheries Act 1994 (pre 1 December 2009). 5 Section 20(1)(a) of Fisheries Act 1994 (pre 1 December 2009). 6 Section 20A(1)(h) of Fisheries Act 1994 (pre 1 December 2009). 7 Regulations 203 and 205 of the Fisheries Regulation 2008. 8 Regulations 251, 252 A and 310B of the Fisheries Regulation 2008. 9 Section 63 of Fisheries Act 1994 (pre 1 December 2009). 10 Perder Investments v Lighowler (1990) FCR 150; R v Queensland Fish Marketing Authority Ex Parte Hewitt [1993] 2 Qd R 201 3
minimum commercial level11. Any other circumstance that would make it unjust to remove the symbol must be considered.
[4] When determining an application for review the Tribunal may:
a) Confirm the decision appealed against;
b) Set aside the decision and substitute another decision; or
c) Set aside the decision and return the matter to the Chief Executive with directions the Tribunal considers appropriate12.
In substituting another decision, the Tribunal has the same power as the Chief Executive which implies that the Tribunal when exercising power is to do so by way of rehearing13. The parties are not limited to the evidence before the Chief Executive in respect of the application and so the hearing is on the merits. When exercising power the Chief Executive and therefore the Tribunal does so in accordance with the objects of the Act which are to provide for the use, conservation and enhancement of the community’s fisheries resources and habitats in a way that seeks to-
a) apply and balance the principles of ecologically sustainable development; and
b) promote ecologically sustainable development14.
[5] The Policy for the Removal of excess fishing capacity in Queensland’s Line, Crab, Beam Trawl and Eel Fisheries noted that excess fishing capacity (latent effort) has been identified in those fisheries where significant numbers of the respective symbols are not being utilised, or if they are to a very low level. That conversion of this latent effort would likely result in detrimental impacts to the fisheries and their users. Further that removal of latent effort is the most effective mechanism to ensure that fisheries management continues to meet the objectives of the Act, as mentioned above.
[6] The policy was to be implemented by assessing all commercial licences with the respective symbols against eligibility criteria outlined in the policy and the use of a ’show cause’ process to proposed removal of symbols from licences that do not meet the policy criteria. Decision-makers were to propose the removal of the symbol if satisfied the fishing history for the licence fails to meet the catch history criteria set by the policy as constituting a demonstrated minimum level of activity in the fishery in the specified periods. In response to the show cause notice, any further information the holder wishes to provide, including any reasons why the policy should not apply to the holder, such as special circumstances affecting the holder’s usual fishing pattern during the above periods were to be considered by the decision- maker.
11 Sikes v Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 558. 12 Section 199 of Fisheries Act 1994 (pre 1 December 2009). 13 Section 199(2) of Fisheries Act 1994 (pre 1 December 2009). 14 Section 3 of Fisheries Act 1994 (pre 1 December 2009). 4
[7] The assessment criteria for the minimum level of fishing activity in the Eel Fishery-E under the policy are:
The holder has reported catch of 250 kg or more of eels taken under the E fishery symbol in any three calendar years from 2000 to 2007.
[8] The Chief Executive also provided guidelines for applying special circumstances. The special circumstances relevant to the E fishery symbol are:
a) Logbook clarification – where an operator can provide supporting documentation such as unloading dockets or tax returns to demonstrate errors in respect of the logbook records received by the department;
b) Event – due to a specific reason no fishing took place under any fishery symbol on a licence for a specified period;
c) Recent entrant – licence has not met the catch criteria due to an insufficient opportunity to achieve catch levels as the licence or fishery symbol was not held long enough to generate the required catch history;
d) Other – any other special circumstances that prevented a licence holder from meeting the required minimum commercial level during the criteria period.
The purpose of the guidelines was said to be to provide consistency in decision making, it is stated that the decision-maker is not bound by the following guidelines and can apply other reasoning to determine a final outcome.
CONTRARY TO THE ACT
Jobfish Material
[9] The Chief Executive removed the E fishery symbol from Jobfish’s licence following the show cause process. The initial show cause letter sent to Jobfish disclosed that Jobfish’s recorded catch in the eel fishery in the years 2000 to 2007 was nil15. Jobfish provided information in response to the show cause letter and prior to the decision-maker finalising their decision Jobfish received telephone advice of the intention to remove the fishery symbol.
[10] In response to this Jobfish submitted a letter to the decision-maker16 that this process was contrary to the Act:
as the show cause notice does not comply with section 63 of the Act. Firstly, that section 63 prescribed, inter alia, that a show cause notice must state “the proposed amendment” to an authority. The purpose of the notice was as a process to remove an endorsement from an authority issued under the Fisheries Act 1994. The notice is defective and in breach of section 63 in that it deems an “amendment” includes a “removal of an endorsement”.
15 Statement of reasons (SOR) page 6. 16 SOR page 61. 5
An amendment means to “correct or improve” not to remove. Secondly, the show cause notice must state “the reasons for the proposed amendment” to an authority. The reason is defined as a belief by the Department of Primary Industries & Fisheries that the fishery is fully utilised under current management arrangement and that any increase in fishing effort as a result of the activation of previously under utilised licences could result in reduced viability of current fishing operations. This is a nonsense in itself. You (referring to the decision-maker) admitted in our conversation last week that the Department lacked scientific evidence to support this presumption so they proposed to adopt a protectionist position. The Department has for many years continued to issue and renew endorsements and collect annual fees for those endorsements knowing full well that some licence holders were not active in the fishery on a year by year basis. Thirdly, section 63 prescribes, inter alia, that a show cause notice must “outline facts and circumstances forming the basis of the reasons”. The legislative requirement is to provide the facts and circumstances on which the Chief Executive bases the opinion that fishing effort by all endorsement holders “could” result in reduced viability. There are no facts or circumstances provided to establish that the fishing of all current endorsement holders could or would result in reduced viability. The facts and circumstances provided in the show cause notice are that we held an endorsement during a prescribed period and that our activities did not meet a prescribed standard during that period. This statement does not outline facts and circumstances forming the basis of the reasons. Fourthly, section 251(2) of the Fisheries Regulations 2008 provides that the Chief Executive may write a fisheries symbol, on a commercial fishing boat licence or a commercial harvest fishery licence. The section does not extend the powers of the Chief Executive to remove a fishery symbol from those licences. It is further submitted that the Fisheries Act and regulations do not create authority for the Department or the Chief Executive to manage a fishery by the instigation of a program targeting latent effort. In fact latent effort is not prescribed in any form or manner in any of the respective legislation. Whilst the Chief Executive has authority pursuant to the Act to manage fish resources generally that authority does not prescribe or authorise the instigation of a program for removal of endorsements through latent effort.
[11] At the hearing of the application it was submitted on behalf of Jobfish that section 63 relates to amendment of authorities and that what had occurred was that the authority had been cancelled by purporting to use the terminology of removal of a symbol in which case section 67 of the Act should have been used. It was stated that the authority was the card17 and that attached to the authority were conditions and the fishery symbol. By removal of the E fishery symbol Jobfish is left with an authority without a purpose. That section 59 deals with the refusal to issue or renew an authority and the examples set out in that section also are the reasons upon which the Chief Executive may be satisfied under section 67 of the Act to cancel an authority, that the regulation deals with the writing of fishery symbols, the moving of fishery symbols and the use of fishery symbols but not the removal of fishery symbols.
17 Exhibit 5. 6
Chief Executive Material
[12] The Chief Executive made written submissions that
the show cause letter did comply with section 63 of the Act. That it clearly set out the proposed amendments, the reasons for the proposed amendments and the relevant facts and circumstances, and that Jobfish was made aware of its right to respond and provide reasons as to why the fishery symbol should not be removed. In regard to show cause procedures generally it was submitted that they are not uncommon and exist in other legislation dealing with action which might be taken by a decision maker to amend, revoke or cancel a licence or take disciplinary action in relation to it. That the show cause procedure exists for sound reasons that is to ensure the affected party has notice of the proposed action and is afforded procedural fairness. That this reflects what Mason J. described in Kioa v Minister for Immigration and Ethnic Affairs18 as the “fundamental rule of the common law doctrine of natural justice”. None of this deprives the Chief Executive of a power to amend a licence by removing a right by reason of non-use of relevant rights, in circumstances where the statutory entitlement is to scarce resources or one which it is important to control the exploitation of. The degree to which the licence holder is exercising his or her rights is a legitimate concern of the regulator. In the case of the Fisheries Act its purposes include promoting ecologically sustainable development. The extent to which rights under the Act are being exercised are within the purpose of the statute. It was submitted that the Chief Executive has wide powers under section 20A of the Fisheries Act in particular sections 20A(1) (h) and (k) to manage fisheries and that such powers would enable the Chief Executive to make a policy for the removal of fishery symbols due to latent effort.
[13] The Chief Executive submitted at the hearing that
the authority includes the conditions attached to it and section 63 of the Act applies to enable amendment of the conditions. That the term “amendment” should not be given a narrow meaning and that while section 63(4) applies to a non-adversarial amendment an adverse amendment can also be made. This is reinforced by section 63(7) which deals with the question of compensation if something previously permitted under the authority is prohibited or regulated. That there is no warrant for an interpretation that the Chief Executive can only cancel or suspend the authority, by section 52 of the Act the authority holder is authorised to do the things permitted under the regulations management or stated on the authority. The regulations allow for an E fishery symbol, Jobfish wants to read a provision in regard to the removal of the symbol into the regulations. While the regulations deal with the writing of a symbol on an authority it is section 63 which deals with the amendment of authorities Section 63 is the operative part and not the regulations, the regulations should be read subject to the Act.
Discussion
18 159 CLR 550. 7
[14] The Chief Executive may issue certain types of authorities including licences19. The types of licences include a commercial harvest fishery licence20 and the holder of such a licence may do the things set out in regulation 248 of the Fisheries Regulation 2008. This includes fishing in the commercial fisheries identified in the licence and the taking of fish for trade or commerce in the commercial fisheries identified in the licence. The Chief Executive may write on a commercial harvest fishery licence any fishery symbol for a commercial fishery under chapter 7 of the Fisheries Regulation 2008. The E Fishery symbol is contained in chapter 7 of the regulation21. This makes it clear that the E fishery symbol has been written on the licence (authority) held by Jobfish for the purpose of allowing the holder of it to take eels in accordance with the regulation. It is noted that the licence held by Jobfish also contained conditions to which it was subject to in accordance with section 61 of the Act.
[15] Section 63 of the Act enables the Chief Executive to amend authorities. The first question is whether the removal of a fishery symbol constitutes the amendment of an authority. Jobfish has submitted that amendment should be limited to “improve or correct” and the Chief Executive has submitted that the term should not be given a narrow meaning. Section 63 provides a mechanism for amending an authority in a way adverse to the authority holder which complies with the procedural fairness requirements mentioned above in terms of sections 63(1) to (3) of the Act. It states in particular in section 63(4) that those sections do not need to be complied with where the amendment does not adversely affect the holder’s interests. As submitted by the Chief Executive section 63(7) makes it clear that compensation is not payable if an authority is amended, or anything previously permitted under the authority is prohibited or regulated. The removal of a fishery symbol has the result of prohibiting something that was previously permitted under the authority.
[16] Jobfish also submitted that there is no provision allowing the removal of a fishery symbol as regulation 251 dealt only with the writing on of symbols. The power to do this is contained in section 64 of the Act which enables the Chief Executive to require the holder of an authority to return it to the Chief Executive to enable the Chief Executive to alter the Authority to reflect the amendment. In this case by the removal of the E fishery symbol.
[17] The Chief Executive then has the power to amend an authority by the removal of a fishery symbol under sections 63 and 64 of the Act.
[18] The Chief Executive in this case was exercising the powers under section 63 of the Act in accordance with a policy which is outlined above. The reasons for the proposed amendment are those set out in the policy and applied to the licence held by Jobfish. Jobfish has claimed that the policy is a nonsense and the Chief Executive has taken a protectionist approach without scientific proof. This goes to the efficacy of the policy itself and that in accordance with section 196(2) of the Act is not something that can be made subject to an application for review.
19 Regulation 203 of the Fisheries Regulation 2008. 20 Regulation 205 of the Fisheries Regulation 2008. 21 Regulation 310B of the Fisheries Regulation 2008. 8
[19] In the same way the facts and circumstances outlined in the show cause letter relate to the recorded catch of Jobfish under the E fishery symbol and that as a result of the catch being nil it is proposed to remove the fishery symbol. The Chief Executive is applying the policy in the show cause letter to the E fishery symbol held by Jobfish. The show cause letter does not require the Chief Executive to justify the policy; it is the application of the policy to Jobfish’s licence which is being considered. The relevant facts and circumstances are those which relate to Jobfish’s licence and those are set out fully in the show cause letter.
[20] Jobfish submitted that there is no power under the Act for the Chief Executive to make a policy based on latent effort. The Chief Executive pointed to the powers available under section 20A to manage fisheries including in section 20A(1)(h) by adjusting the number of authorities for a fishery. This policy has a clear intent of reducing the number of authority holders who have access to the eel fishery on the basis of removing symbols from those that are not currently using the symbols to a minimum level of activity in the fishery. There is power then for the Chief Executive to make the policy.
[21] It was also submitted that section 67 which is for the cancellation of an authority should have been applied here as opposed to section 63. This is on the basis that as the licence held by Jobfish had only one fishery symbol its removal has had the effect of cancelling the licence. Section 67 provides examples of reasons why an authority should be cancelled and these relate to the conduct of the licence holder and are cast in negative terms. The policy here is not related to anything that the authority holder has done contrary to the Act but merely to the fact that the recorded catch is not considered sufficient. The policy relates to the use of a fishery symbol that the authority holder has a right to use and it may be in the case of certain authority holders that they had multiple fishery symbols and it was not intended to cancel their authorities only those symbols which did not meet the criteria. The use of section 63 in this case is appropriate and if the decision is not changed then if Jobfish does not wish to acquire any new symbols under the current licence it can forfeit it to the Chief Executive so that it does not incur additional fees.
[22] The decision of the Chief Executive is not contrary to the Act. A delegate of the Chief Executive has exercised power under section 63 of the Act in accordance with a policy of the Chief Executive to remove a fishery symbol from a licence.
MANIFESTLY UNFAIR
[23] The decision of the Chief Executive is said to be manifestly unfair on the ground that
the presumption by the Chief Executive that the Queensland Eel fishery is fully utilised and that any increase in fishing could result in reduced viability of the current fishing operations is unfounded; the Chief Executive has failed to take into consideration the unique nature of the eel fishery in his decision to remove the (E) fishery symbol from our commercial harvest fishery licence and the Chief Executive has failed to 9
take into consideration our extensive history and investments in the eel fishery in Queensland.
Jobfish Material
[24] In its response22 to the show cause letter Jobfish set out the history of the Gleeson brother’s involvement in the eel fishery from 1983 when they commenced the industry and that they have been heavily involved in the eel fishery in Queensland, catching and exporting eels from 1983 to the present day. In a later statement23 Mr Gleeson said that
he had entered the eel fishery in Queensland in 1984 when the first Fish or Marine products permits were issued to him and his brother John, to take eels for sale and predator control. The permit allowed them to take eels from any freshwater river or impoundment in Queensland subject to the consent of the person or authority allowing access to such river or impoundment. That the fisheries division of the Department of Primary Industries were keen at that stage to support our eel fishing as it was the time when there was a strong push to have recreational fish fingerlings e.g. Barramundi, Silver and Golden perch introduced into freshwater rivers, dams and lakes and that eels were their natural predators.
[25] Mr Gleeson stated in the response to the show cause letter that
the only market for adult eels from Queensland waters which are predominantly Long fin (Anguilla Reinhardtii) is in their live form into the Asian market. The eel fishery is not like other commercial fisheries in the state. Whilst fishing is carried out each year, if eels in commercial quantity and commercial quality do not exist eels cannot be taken. It is not just a simple process of trapping eels to make eel fishing worthwhile, it is also a process of correct handling of eels post harvest that is critical to their survival and ultimate sale. Leaving trapped eels in holding nets in dams after capture is a big problem as the eels damage themselves and die very easily. We have adopted a policy over the years of regularly testing impoundments, if the tests prove positive, we move infrastructure (including tanks, loading equipment, oxygen supplies etc) to the location, so that eels can be held in a proper environment post harvest to ensure they are in prime condition for export. These facilities need to be in place as these impoundments are remote and a long distance from point of export in Brisbane.
The Fish or Marine products permit which was issued to him and his brother was changed to the company, King Eel Australia Pty Ltd and then to Jobfish. At various times between 1985 and 2000 they were authorised to remove eels from the Brisbane River catchment by the Brisbane River Water Board, Ewan Maddock Dam by the Caloundra Council, the Water Resources Commission (various listed dams), all up 13 rivers, weirs and dams. The Water Resources Commission and other bodies responsible for allowing permission to enter rivers and lakes to catch eels began closing waterways to eel catching in the 1990s. All of
22 SOR page 6. 23 Exhibit 4. 10
the facilities mentioned are now closed to fishing except the Kolan River/ Lake Monduran and Awoonga Dam. The closure of these rivers and lakes was not as a result of over fishing but government policy, on our understanding, caused by environmental pressure groups.
[26] The success of the fishing business was illustrated by clippings supplied from newspapers. One dated 13 June 1989 stated that King Eel Australia (the previous company) exports up to two tonnes of live eels each week – an annual turnover of $1,000,000 and is now the country’s biggest eel exporter, air freighting 1000 live spotted long fin eels to Hong Kong each week24. It was also stated in that article that the industry faced a serious problem during the next five years as natural supplies of eels dwindled. An article from 28 July 199125 states that the company King Eel Australia which used to trap all its eels in Queensland, claims the reliable commercial quantities of eels it needs are no longer available in “fished out” lakes and dams in the State. King Eel which has been operating for seven years at its peak, controlled the eel trapping in 14 Queensland dams, now it has just one – the Awoonga Dam near Gladstone.
[27] There were also photos provided of eel traps and holding tanks26 which illustrate the investment of the company in the eel fishery. Mr Gleeson made a further statement dated 21 June 2010 detailing the maintenance repair and purchase of new equipment by Jobfish during the period 2000 to 2007. This included upgrading the eel traps in 2002 at a cost of $1,155.90; an upgrade of the holding facility in October 2002 at a cost of $1,704.13; the purchase of a new eel fishing boat in September 2002 for $5,545; a further upgrade of the eel holding facility in April 2003 at a cost of $1,450.56. It is noted that the majority of these invoices are not in Jobfish’s name. Mr Gleeson stated that this was for tax reasons. He stated that the replacement cost of their capital equipment used exclusively in the eel fishery would be $150,000. Mr Gleeson confirmed at the hearing that Jobfish had 50 eel traps, a boat, in- field eel holding tanks, in-factory eel holding tank, specialist eel transporting tank and an in-factory conditioning tank.
[28] In the response to the show cause letter Mr Gleeson stated that
during the period of qualification 2000-2007 we held consent to remove eels from both Awoonga Dam in Gladstone and Lake Monduran at Gin Gin. The tender for Awoonga dam was held from 1996 to 2001, when it was lost. We caught in excess of 250kgs of live eels in both the years of 2000 and 2001 in Awoonga Dam during a number of trial periods. The eels were returned to the dam as the catches per period of activity were less than what we consider to be commercial quantities warranting the establishment of infrastructure to continue fishing. We have continued to fish and test commercial quantities of eels in Lake Monduran annually. But the lack of run off caused by the drought has limited the supply of commercial quantities in that impoundment since 1998. We estimate our catches of eels in Lake Monduran during the years 2004, 2005, 2006 and 2007 would have exceeded 250 kgs each year. Unfortunately, due to the
24 SOR page 49. 25 SOR page 50. 26 SOR page 53 to 58. 11
severe conditions and lack of fresh water flow, the quantity and quality of eels caught rendered ongoing fishing to be uneconomical.
Mr Gleeson provided copies of correspondence to the Kolan Shire Council advising of eel fishing trials on 10 April 200627, 25 June 200728 and 2 June 200829 as proof of the fishing activities during those years.
[29] Mr Gleeson explained in a later submission30 that
eels breed at sea and come into rivers as elvers and climb over and around dam walls to enter the heads of rivers and lakes. This is the only way eels get into river systems. If there is no rain, eels cannot use their slimy bodies to stick to concrete and climb over walls or manoeuvre through grass around dam walls. The run off of rainwater into the rivers and lakes also stimulates eels feeding activity and is critical to commercial catches.
[30] It was stated at the hearing that Jobfish had put effort into the eel fishery during the period as it continued to deal with the export of eels from private owners and interstate suppliers and that a trailer mounted eel holding tank valued at $39,000 continues to be used to pick up eels from lakes and interstate.
[31] Mr Gleeson in a statement31 said that
the substantial rains in 2008 broke the drought and commercial quantities were again being caught in Lake Monduran. If the flow of rain had continued we would not have made the commercial decision to stop eel fishing. Our fishing continued until 2009 when our eel endorsement was removed. We are a fishing business and we have other investments in the fishing industry. We made a commercial decision to stop fishing eels until weather conditions changed and that is exactly what we did. If we had been told that it was a condition of our licence, that to maintain it going forward we would have to continue to record catches, we would have done that even if it was not commercially viable.
[32] At the hearing Mr Gleeson confirmed this and said if he had known that he had to catch eels to keep his authority he would have tried to comply. Mr Gleeson stated that he had explained the drought as a special circumstance to the department and the decision-maker had acknowledged the lack of rain had affected the catch with waters closed to fishing. The records show a fall in the catch from 76 tonne in 199632 to 17 tonne in 200633 with 26 tonne in 200734. There was also the reduction in the areas that eels could be harvested from with the Brisbane River, Wivenhoe and other dams being closed. While farm dams were available there was a question of financial
27 SOR page 20. 28 SOR page 17. 29 SOR page 14. 30 Exhibit 4. 31 Exhibit 4. 32 Fisheries (Freshwater) Management Plan 1999 at page 42. 33 Exhibit 9 - Annual Status Report 2007 Queensland eel fishery. 34 Exhibit 10 - Annual Status Report 2009 Queensland eel fishery. 12
viability. Mr Gleeson stated that Jobfish had an intention and desire to continue fishing for eels and was ready to catch at the time it was told it could not fish. He stated that the Kolan River was the only area that Jobfish had access to and that the E fishery symbols were not transferable and they had ceased being issued in 1999. He acknowledged that Jobfish gave nil returns in each of the years 2000 to 2007 and that this agrees with the logbook and return record.
[33] Mr Gleeson in his response stated that
the State Government had changed policy since 1989 in relation to the removal of eels with the prohibition of eel fishing in freshwater rivers and the introduction of a tendering process for the removal of eels from closed impoundments and the closure to fishing of all state controlled closed impoundments. The only commercial impoundments that continue to allow eel fishing are those controlled by the local authorities and area water boards.
In a later statement35 he noted that
a 1996 discussion paper issued by the Department called for comment on a suggestion that recruitment of juvenile eels into dams be allowed as a potential way to ensure the increase in numbers of eels. After comment in support the government instead introduced a policy not to allow adult eels to be taken from rivers, streams, creeks, natural swamps and lagoons. The introduction of a policy calculated over a period of the worst drought in the recorded history of the area is wrong. The eel fishery is not over fished in Queensland. The total eel catch has gone up and down over the years since 1984. In fact the latest data is the catch from 2009 and it has gone up from the catch in 2007 with the same number of issued licences. Any reduction in catch is a direct result of the Department’s closure of eel fishing grounds and the drought which started to cause its effect in 2000.
[34] At the hearing Mr Gleeson stated that the Department had made the policy despite there being no science and it was taking a protective position.
[35] In his material Mr Gleeson stated that he had a meeting with the decision- maker, Ms Anita Ramage and had been assured that if he provided all of the material in regard to Jobfish’s investment in the fishery and the involvement and pioneering status of the Gleeson brothers this should be sufficient to retain the E fishery symbol. He had later been advised after submitting the required material that the Department was taking a protectionist approach as there was no scientific evidence as to whether the eel fishery was or was not over fished.
[36] The licence36 which Jobfish held allowed it to take eels from waters in a privately owned, artificially created impoundment, from which permission has been obtained from the owner, within the following catchments: Catchment 35 Kolan River; catchment 36 Burnett River and Catchment 43 Brisbane
35 Exhibit 4. 36 Exhibit 5. 13
River. The Regulation37 also allows fishing from waters in an impoundment formed by a dam stated on a licence. In the decision38 to remove the E fishery symbol it was stated that at no time has Lake Monduran been listed on the licence as a nominated water from which eels can be trapped. Jobfish provided a history of its involvement with eel fishing at Lake Monduran and submissions on the question of whether it had proper authority to fish there.
[37] In his statement of 7 June 2010 Mr Gleeson said that
In 1985 we were contacted by the Department of Primary Industries who were at the time undertaking a venture with the Queensland Water Resources Commission to stock Lake Monduran a.k.a Fred Haigh Dam at Gin Gin with barramundi fingerlings in an endeavour to establish a freshwater recreational fish outlet. He described Lake Monduran as having been formed with the creation of a large dam wall across the Kolan River. The lake created a flooding of areas adjacent to the Kolan River and caused the river to hold back water up to the Bruce Highway some 30 kilometres from the Dam wall. They obtained an open ended consent from the Queensland Waters resources Commission to remove eels for predator control for the Kolan River catchment to allow the introduced fingerlings a chance of survival.
In 2005 on one trip to Lake Monduran Jobfish were advised by fishing inspectors that the lake was now under the management of the Kolan Shire Council and that they would need to get their consent to continue access for eel fishing. Mr Gleeson contacted the Council, and was advised to put the request in writing and the consent was obtained.
[38] The consent from the Kolan Shire Council was granted on 10 February 200639 and lists various conditions. In submissions from Jobfish the important conditions were said to include Condition 9: comply with all Department of Primary Industries and Fisheries regulation requirements and orders in relation to fishing and eel trapping at Lake Monduran; Condition 11: hold and maintain an authority to take fish for trade or commerce as issued by DPI & F for the Kolan River catchment including Lake Monduran reserve and comply with all conditions of this authority; Condition 16: abide by these conditions and those of DPI & F and if such does not occur, Council will revoke this approval in writing.
[39] In these submissions Jobfish made a distinction between the Fred Haigh Dam which it described as infrastructure and Lake Monduran itself. Stating that Lake Monduran was a privately owned artificially created impoundment within the Kolan River Catchment, which was a catchment stated on the licence. A copy of the relevant catchment shows Lake Monduran is part of it40. It was agreed with the Chief Executive that there were no definitions in the legislation of “impoundment” or “privately owned artificially created impoundment”. It was submitted that there was no evidence that Sunwater
37 Fisheries Regulation 2008, r 310B. 38 SOR page 73. 39 SOR page 22. 40 Exhibit 8 – Catchment 32. 14
who owned the Fred Haigh Dam also owned Lake Monduran. Sunwater’s charter described it as a Queensland Government owned corporation and Sunwater provides a range of services including infrastructure ownership, water delivery, operation and maintenance of infrastructure and engineering consultancy services. Sunwater has no responsibility under the relevant legislation for issuing recreational and commercial fishing permits. The authority rested with the Department of Primary Industries and Fisheries. It is stated that Jobfish was not required to seek the consent of Sunwater as the Fred Haigh Dam was not identified in the authority.
[40] In support of the submission that Fred Haigh Dam and Lake Monduran are separate it is noted that there are separate references to Lake Monduran and Fred Haigh Dam in the Fisheries (Freshwater) Amendment Management Plan (No 1) 2002. This Plan refers to Fred Haigh Dam in relation to the bass closed season, Lake Monduran in relation to the barramundi closed season. In relation to stocked impoundments it lists Lake Monduran. A copy of the real property plan in respect of the area that includes Fred Haigh Dam and Lake Monduran being Portion 46 of Registered Crown Plan No BON 1395 is attached. It is also stated to show the distinction. The plan has the name “Lake Monduran” typed across it with the words ‘Fred Haigh Dam axis’ typed on either side of a line in the middle of the left hand side. The area of land covered by the plan is stated on it as 1588 hectares. Reference is also made to the Department of Natural Resources and Waters stream gauging which separately identify Monduran and Fred Haigh Dam. Extracts from the Kolan Shire Council Annual Report for 2008 are attached which make reference to the Kolan River and Lake Monduran. The report shows that there is an amount of $17,000 noted as a capital reserve for Lake Monduran.
[41] At the hearing Mr Gleeson stated that
A letter was sent to the Kolan Shire Council and Boating and Fisheries every time they went into the lake telling them of their intention to fish. The logbooks and returns provided to the Department showed that the area they were harvesting from was T32 which was part of the Kolan River leading up to Lake Monduran and that the Department had not told them they were fishing illegally. The Department was therefore aware they were fishing Lake Monduran and they had approval from the local council.
[42] A statutory declaration from a Mr Russell Hood was handed up at the second hearing. Mr Hood said in the statement that
He had been the Director of Engineering Services at the former Kolan Shire Council. He stated that in 2006, Kolan Shire Council was party to an agreement with Sunwater Limited addressing access to the Lake Monduran reservoir and immediate surrounding areas as part of Kolan Shire Council taking over ownership and control of the former Lake Monduran Recreation area from Sunwater. It was part of his role to manage access to Lake Monduran which was known under the agreement as the wet concession area. In February 2006, Kolan Shire Council granted written consent to Jobfish for access to Lake Monduran reservoir for the purpose of trapping eels subject to conditions, a copy of 15
the consent is annexed to the statement and is the same consent as previously referred to above. The consent was granted in consultation with Mr Chris Lupton, Technical officer with the Queensland Government Department of Primary Industries and Fisheries. It was noted that there were conditions applied in the approval and the approval did not negate the requirement to obtain the consent of other agencies.
[43] It was submitted by Jobfish that the statutory declaration confirmed the evidence of Mr Gleeson in respect of the right to fish in Lake Monduran that Jobfish operated under. Council had given approval for Jobfish to fish in the wet concession area and that for the purpose of the licence the Kolan Shire Council is a privately owned organisation.
Chief Executive’s Material
[44] The Chief Executive, through a delegate, sent his show cause letter to Jobfish on 1 August 2008.41 It invited Jobfish to show cause why Commercial Harvest Fishing licence 271 should not be amended to remove the E fishery symbol. Section 63 of the Act was mentioned as the section dealing with the amendment of authorities. The reasons for the proposed amendment were stated in the letter. These related to the fishery being fully utilised under current management arrangements and that any increase in fishing effort as a result of the activation of previously under-utilised licences could result in reduced viability of current fishing operations and pose a sustainability risk. The policy mentioned above was referred to with the facts and circumstances forming the basis of the reasons. That is in terms of the details of the licence held by Jobfish, the minimum catch requirements and Jobfish’s catch history. The show cause letter also referred to the special circumstances which Jobfish may avail itself of if it is not able to demonstrate the minimum level of catch.
[45] A file note of conversation between Ms Anita Ramage and Mr Gleeson on 1 October 200942 confirms that a discussion took place between them in regard to the proposed decision to remove the E fishery symbol. In the note it is stated that
Ms Ramage had spoken to Mr Gleeson about the fact she had considered his response but there were no special circumstances that would warrant the policy being set aside. Mr Gleeson had argued that the policy should not apply to the eel fishery and that it had not taken special factors relating to the fishery such as drought into account. Ms Ramage stated that these factors had been considered by fisheries during development of the policy. The things he was referring to applied to all eel fishers and are not considered a circumstance that warrants the policy being set aside in this case. Mr Gleeson is said to have stated that he would appeal the decision and his main issue relates to the management of the fishery as a whole and that he is critical of the fact there is no robust scientific data to back up management decisions.
41 SOR page 6. 42 SOR page 60. 16
[46] The Chief Executive’s decision to remove the E Fishery symbol43 disclosed the reasons for the decision as follows:
a) that the catch taken under the E fishery symbol is not sufficient to demonstrate a minimum level of fishing activity as defined under the policy;
b) Jobfish stated that the unique characteristics of the eel fishery have not been taken into account in the development of the policy and it should not apply to the eel fishery and questioned the management decisions made for the fishery over time. As you are aware, the unique eel lifecycle and variability in eel recruitment means that standard fishery stock assessment cannot be undertaken for the eel fishery. As such, QPIF manages the fishery in a precautionary manner which has been assessed against the Australian Government Guidelines for the Ecologically Sustainable Management of Fisheries in order to maintain export approval for the fishery ;
c) That while Jobfish stated it had been heavily involved in the eel fishery since 1983 the logbooks records do not show any records of eel fishing being recorded in their logbooks for at least 10 year prior to the policy being released;
d) While acknowledging that drought conditions may have an impact on the normal availability of suitable waters for trapping eels and the impact this may have on Jobfish’s fishing activities, Jobfish made a business decision not to take eels under its E fishery symbol;
e) Changes in environmental conditions are an unavoidable factor in the fishing industry and these circumstances apply to all operators. It is noted that other eel fishers have continued to fish throughout the period and therefore this circumstance was not considered sufficient to set aside the policy; Jobfish has undertaken “test fishing” for eels in Lake Awoonga and Lake Monduran during the policy criteria period but subsequently made a business decision to release the eels back into the impoundments on each occasion due to considering the catch rates not to be of a commercial level. The policy states that fishing activity will ordinarily be determined based only on statistical returns (logbooks) as these are legally binding records of commercial fishing catch. As Jobfish did not record any fishing activities in their logbooks, there is no mechanism to validate this catch.
f) Jobfish has provided copies of correspondence to local Queensland Fishing and Boating Patrol notifying them of their intent to trap for eels in Lake Monduran during the criteria period. They state that fishing recommenced in this impoundment after the policy was released in 2008 and this is confirmed with logbook records (2008 1,274.50 kg and 2009 333 kg44). At no time has Lake Monduran been listed on Jobfish’s licence as a nominated water from which eels can be trapped under the licence. Therefore this is not lawful fishing practice and the delegate was
43 SOR page 69. 44 SOR page 64. 17
not prepared to consider this as contributing to their case to retain the E symbol on the licence;
g) Jobfish demonstrated an intention to pursue eel fishing in the future. Allowing the retention of the E fishery symbol on this basis is inconsistent with the objective of the policy. QPIF developed the policy due to concern that activation of previously under-utilised licences in the fisheries, for any reason, would be likely to adversely impact on the sustainability and viability of those fisheries. Jobfish’s use of a previously under utilised licence in the eel fishery has the potential to have an adverse effect on the sustainability and/or viability of the Fishery.
h) Consideration was given to whether any special circumstances would apply. In particular the recent entrant, event and multi-endorsed fishing operation special circumstances were considered and it was found that they did not apply;
i) The delegate indicated the Department was reasonably satisfied that Jobfish had an opportunity within the criteria period and the adjusted criteria period, to demonstrate a minimum level of fishing activity, however they were unable to meet the criteria in the policy and therefore Jobfish had not demonstrated a commercial reliance on its E fishery symbol. Having made a commercial decision not to operate in the fishery that is the reason they were unable to demonstrate a minimum level of fishing activity under the E fishery symbol.
j) In weighing the circumstances with the objectives of reducing excess fishing capacity, including the hardship Jobfish might incur from its removal, the delegate was reasonably satisfied that the Policy or the Guidelines should not be set aside in relation to the licence.
[47] In a file note of 13 October 200945 Ms Ramage commented on the Jobfish correspondence of 9 October 2009 referred to above. She stated that she made no assurances that any symbols would be retained prior to the finalisation of the policy. She had said that fishing and not actually catching any fish was different to not fishing at all but did not indicate that this would allow the retention of a symbol. There were no logbook records to verify any fishing. At the meeting the policy criteria had not been finalised. The history of involvement in the eel industry and the drought and its impact on the eel fishery were considered. She noted that the fishery is not considered viable by a number of current licence holders – increasing effort in the fishery would further reduce the viability of those that do currently rely on the fishery given the limited water available to trap in.
[48] The Chief Executive made written submissions in regard to the question of whether or not Jobfish is authorised to harvest eels from Lake Monduran. Reference was made to the requirements of the Fisheries (Freshwater) Management Plan 1999 (the Plan) section 49 which provided that a person could only take eels from (a) an impoundment formed by a dam stated on the authority or licence, or (b) from water in a privately owned artificially created impoundment within a catchment stated on an eel authority or
45 SOR page 76. 18
licence. The Fred Haigh Dam was not a dam stated on Jobfish’s licence or annual eel authorities and is not a privately owned artificially created impoundment. In any event Jobfish was required to obtain the permission of the owner of a privately owned artificially created impoundment in order to fish. Jobfish has never sought and obtained the permission of the owner of the Fred Haigh Dam to take eels in Lake Monduran accordingly Jobfish was not entitled to take eels from Lake Monduran and its attempts to do so since 2002 have been unlawful.
[49] It was submitted that Mr Gleeson’s claim that Jobfish was entitled to take eels from Lake Monduran on the basis of the permission granted by the Kolan Shire Council is misconceived. While the Fred Haigh Dam is an artificially created impoundment it is not ‘privately owned’. Since at least 2002, the owner of the Dam and the waters of Lake Monduran has been Sunwater, which is clear from Schedule 12 of the water regulation 2002 (Qld) which includes “Fred Haigh Dam owned by Sunwater having a height of 49 m and a storage capacity of 562,000 ML”. Publications of Sunwater are also cited in support of this proposition. It is stated that Sunwater, is not the ‘private owner’ of the Fred Haigh Dam in the ordinary sense of the term. Sunwater was established under the Government Owned Corporations (State Water Projects Corporatisation) Regulation 2000 (Qld). On 1 August 2004, Sunwater was continued in existence as a statutory authority under the Government Owned Corporations Regulations 2004. Sunwater is currently incorporated under the Corporations Act 2001 and is a wholly government owned corporation, its shareholders being two government ministers. Given that Sunwater has always been a government owned corporation that has been accountable to shareholder ministers, and until 1 July 2008 its functions were specified in legislation, its ownership of the Fred Haigh cannot properly be described as ‘private ownership’. Lake Monduran was therefore not a ‘privately owned artificially created impoundment’ within the meaning of s49 (b) of the Plan or the condition on Jobfish’s eel authorities and eel licence.
[50] It was further submitted that Jobfish’s interpretation of section 49 (b) would make section 49(a) superfluous. All waters formed from man-made dams can be described as waters in ‘artificially created impoundments’, and as Fred Haigh Dam illustrates, for many years such dams have been owned by government owned corporations such as Sunwater or private bodies or persons – they have not been owned directly by the State. If Lake Monduran and other bodies of water formed by such dams could be properly described as ‘privately owned artificially created impoundments’, then s49 (a) would serve no purpose. By contrast, if section 49(b) is limited to privately owned waters such as those in farm dams, then s49(a) of the Plan would have had some work to do: it would have applied to waters such as Lake Monduran that were in, public, as opposed to private, hands.
[51] It was submitted that if Lake Monduran could be described as a “privately owned artificially created impoundment” Jobfish never obtained the permission of the owner of the Fred Haigh Dam as required by its annual eel authorities and licence. Mr Gleeson’s evidence and the material provided by Jobfish is that the permission of the Kolan Shire Council was obtained to conduct testing in Lake Monduran, but the Council was not the owner of 19
Lake Monduran, the owner was Sunwater. Accordingly, there is little doubt that Jobfish failed to comply with section 49 of the Plan and/or conditions of its annual authorities and the condition of its current licence. Put simply it was not entitled to take eels in Lake Monduran. Mr Gleeson was wrong to state otherwise. Because Jobfish was never entitled to take eels in Lake Monduran, Jobfish’s claim of manifest unfairness through the application of the latent effort policy cannot be sustained.
[52] The Chief Executive submitted that the agreement referred to in Mr Hood’s statement was not before the Tribunal and that his interpretation of that agreement may not be correct. In any event the submission that the Kolan Shire Council is a private owner is untenable. Sunwater has clearly stated that its policy is not to permit commercial fishing. It is unclear why the shire council thought they had authority to authorise Jobfish but the approval letter does not authorise them to go ahead and fish. Sunwater owns the area and never gave permission and it is not privately owned. If that is wrong, the Kolan Shire Council is not privately owned and Jobfish could not therefore comply with the conditions.
[53] An affidavit sworn by Ms Suzannah Payne was filed with the Tribunal in regard to the ownership of the Fred Haigh Dam and Lake Monduran. Annexed to the affidavit were copies of a current title search and an historical title search in respect of the land described as lot 46 on Crown Plan BON1395. These searches show the current registered owner of the land as Sunwater. There was also annexed a series of emails between Ms Payne and Ms Nadia Margetts, the property manager at Sunwater. In those emails Ms Margetts confirmed that Sunwater owns the freehold land on which the dam (Fred Haigh Dam) is situated; Sunwater is the owner of Lake Monduran, that was formed as a result of the Fred Haigh Dam and that references to Lake Monduran and the Fred Haigh Dam relate to the same body of water. Ms Margetts was asked to confirm that as the owner of Lake Monduran and the Fred Haigh Dam, Sunwater is in a position to grant consent or alternatively to disallow commercial eel trapping on Lake Monduran/the Fred Haigh Dam. Ms Margetts stated Sunwater understands it is able to grant consent or not grant consent. When asked to confirm that Sunwater has not provided Jobfish with consent to commercially trap eels on Lake Monduran/the Fred Haigh Dam at any time since January 2002, Ms Margetts stated she had been instructed by her Environmental Manager that Sunwater has not provided Jobfish permission to commercially trap eels in Fred Haigh Dam since January 2002. Since 2001 Sunwater has had a policy of not allowing commercial fishing in its storages as it was seen to be counter productive to the objectives of the Stocked impoundment Scheme which operates in many Sunwater storages. Ms Margetts also provided a flowchart setting out the ownership of the Fred Haigh Dam/Lake Monduran. The Tribunal notes that the Commissioner of Water Resources was the owner between 15 December 1978 and 30 October 1989.
[54] Jobfish raised objections to the material contained in the affidavit of Ms Payne at the hearing in particular that the representative of Sunwater had simply repeated what had been said by Ms Payne and it was not a proper way of obtaining the evidence. The Tribunal has received the sworn 20
evidence of a solicitor and is satisfied that the representative of Sunwater provided answers to the specific questions asked by Ms Payne.
[55] In written submissions accompanying the affidavit it is stated that the Jobfish’s claim about the ownership of Lake Monduran is mistaken on the basis of the material set out in the affidavit. Sunwater has been the owner of Lake Monduran at all relevant times, and that the applicant has failed to establish it gained the consent of Sunwater to commercially trap eels. As Sunwater is essentially a public body and its ownership of Lake Monduran cannot be properly described as ‘private ownership’, section 49 of the Plan has been breached by Jobfish. Even if Lake Monduran was a ‘privately owned artificially created impoundment’ Jobfish is in breach of its annual eel authority and its eel licence which stated that Jobfish may only take eels from waters in such an impoundment from which permission to fish has been obtained from the owner.
[56] The Chief Executive was directed by the Tribunal to provide details in regard to the catch records for all the licences including Jobfish’s in the various catchments where Jobfish had authority to harvest. The catch records show that Jobfish had the following catches between 1996 and 2009 – 1996 1065 kg of eel, 2008 1274.5 kg of eel and 2009 2883 kg of eel. The number of eel endorsements which were issued in the same areas as Jobfish’s were Kolan River (catchment 35) 15, Burnett River (Catchment 36) 16 and Brisbane River (Catchment 43) 15. It is noted that there are 7 licence holders who were permitted to fish in all three catchments.
[57] From the catch records for each of the catchments for the period 1996 to 2006, to 2008 for the Brisbane River the following extrapolations have been drawn by the Tribunal. In the Kolan River catchment the number of active licences varied between 1 and 3 in the period with catch caught in each year apart from 1998. In all years apart from 1998, when there was no recorded catch, the average catch was above 250 kg per active authority holder. The average of all annual catches per active authority holder over the years in question was 639.02 kg per year. In the Burnett River catchment the number of active licences was between 1 and 6. The average catch per active authority holder was greater than 250 kg in each year apart from 1998 3.6 kg, 2000 167 kg and 2006 103.67 kg. The average of all annual catches per active authority holder in each year over the whole period was 465.91 kg per year. In the Brisbane River catchment the number of active licences varied between 1 and 10. The average annual catch per active authority holder was greater than 250 kg in all years apart from 1996 86.34 kg, 1997 75.4 kg, 1999 222.58 kg, 2005 162.8 kg, 2006 60.5 kg, 2008 39 kg. The average of all annual catches per active authority holder in each year over the whole period was 381.8 kg per year.
[58] The Chief Executive was directed to file the eel catch returns for both Jobfish and its predecessor company King Eel Pty Ltd for the period July 1996 to October 2009. For that period the returns provided to the Chief Executive have been nil returns except for the following periods:
October 1996 515kg
December 1996 550 kg 21
June 2008 803.5 kg
July 2008 262 kg
October 2008 209 kg
January 2009 344 kg
April 2009 498 kg
May 2009 616 kg
July 2009 673 kg
September 2009 752 Kg
[59] Mr Ian Jacobsen a representative of the Chief Executive made oral submissions at the hearing that
the catches at Lake Monduran all occurred in 2008 and 2009 after release of the policy, even if these catches were taken into account this would not meet the policy as Jobfish needed catch in 3 years. There was no question that a significant investment had been made by Jobfish in the exploitation of eels and the equipment has not lain idle. The policy is in respect of catch and there was no catch in the 7 years in question. The investment was part of a broader operation which was the export of eels. The investment and equipment is designed for eels not in relation to the particular symbol.
[60] The Chief Executive submitted that Jobfish had failed to substantiate that the decision was manifestly unfair. This requires the decision not just to be wrong but with a high degree of unfairness. Much of Jobfish’s case has to do with the content of the policy. There has been material provided by Jobfish of the effect of the drought on other eel fishery symbol holders. While they had been investing in the fishery for a long time Jobfish made a commercial decision not to catch eels. The intention of the policy is that some will no longer be able to catch eels and that is not manifestly unfair. Jobfish’s only argument is that the drought made things difficult. Jobfish made a commercial decision not to fish. The E fishery symbol should not be returned as the decision was not manifestly unfair.
Discussion
[61] When considering whether the decision of the Chief Executive to remove the E fishery symbol is manifestly unfair regard can be had to decisions which have dealt with appeals on the grounds of manifest unfairness which have defined the test in respect of it as follows:
The test is based on a consideration of fairness and based on what reasonable people in the position of the decision-maker would have thought. It is analogous to the test of unfairness in s320(2) of the Companies (NSW) Code which was discussed in Wayde v NSW Rugby League by Brennan J. 22
Brennan J stated in Wayde v NSW Rugby League [1985] HCA 68 at para 7 that
The question is whether the resolutions which are manifestly prejudicial to and discriminatory against Wests, were also unfair – that is so unfair that reasonable directors who considered the disability placed on Wests would not have thought it fair to impose it.
It is then an objective test and requires, as was submitted by the Chief Executive, a high degree of unfairness. It is noted here that this is not an appeal in the strict sense but a review and the question is whether based on the material before the Tribunal, including any new material, the Tribunal would make a different decision to that made by the decision-maker on the basis that the original decision was manifestly unfair. It is not the reasoning of the decision-maker which is being considered but the facts of the case and the applicable law.
[62] Jobfish has accepted that the catch records held by the Chief Executive show that it had no catch under its E fishery symbol during the period 2000 to 2007, which is the qualifying period under the policy. Therefore the E fishery symbol held by Jobfish is subject to removal under the policy unless there are grounds for setting aside the policy. These may be in terms of the special circumstances which were formulated by the Chief Executive or another ground which would make it manifestly unfair to remove the symbol in this case.
[63] Jobfish raised as grounds for setting aside the decision issues about the policy of the Chief Executive over the years in regard to the eel fishery including the closure of many of the areas previously available for eel fishing, the fact that the current policy was developed during a period of drought which inherently reduced the catch of eels and the lack of scientific data in regard to the eel stocks on which the current latent effort policy is based. The policy of the Chief Executive cannot be subject to review in accordance with the Act as mentioned above, although the implementation of the policy by the decision-maker can be. As the policy itself cannot be reviewed those matters raised by Jobfish in regard to the policy will not be canvassed further.
[64] The Tribunal accepts the evidence of Jobfish that it has through its ownership by the Gleeson Brothers been a pioneer in the eel fishery in Queensland and that it has a substantial investment in the eel industry. The Tribunal notes the submissions of Mr Jacobsen on behalf of the Chief Executive that this investment was part of a broader operation which was the export of eels and that the investment was designed for eels and not in relation to the particular symbol. This agrees with the evidence of Mr Gleeson that Jobfish has continued to export eels from its factory with the eels being sourced from private sources and interstate. Jobfish has not claimed that the removal of the E fishery symbol would cause it any personal hardship and it can then be assumed that there will be no significant financial loss suffered by Jobfish by the removal of the symbol. It is clear that Jobfish has continued in its live eel export business while it has not been catching its own eels. There was also no evidence of any cost 23
disadvantage Jobfish would suffer as a result of continuing to source eels from third parties as opposed to its own trapping activities.
[65] The records which are accepted by Jobfish show that it had no eel catch between January 1997 and May 2008. Jobfish has stated that it tested the areas in which it had authority to catch eels and this shows some effort in the fishery. Jobfish states that it did not take any of the eels because the eels which were available were not in commercial quality or quantity in particular during the drought. Jobfish states that the amounts which were found in its eel traps during those tests would have been 250 kg or more but they were put back. The criteria for eels states that to retain the symbol there must be catch of at least 250 kg in three years between 2000 and 2007. With the amount of the catch to be verified by log books records. In Jobfish’s case what it has said is that catch at that level was not sufficient to justify it bringing in the equipment necessary to ensure that the eels it caught were able to be exported live into the Asian market and that it made the commercial decision not to trap eels. Jobfish was not then reliant on its E fishery symbol.
[66] The evidence of the catch records from other eel fishers supplied by the Chief Executive show that there were fishers reliant on the eel fishery during the period in question, whereas Jobfish made the commercial decision not to catch eels. Jobfish contends that this was only until the drought was over. Jobfish has stated that if it had known that it would have to catch eels to the level necessary to satisfy the policy to retain its E fishery symbol it would have tried to comply. This is not the point of the policy. It is not about reaching a quota to enable you to retain an authority. It is about saying that there is a certain number of holders of symbols who are active and there are a number who are not active and that there is a concern that if those who aren’t active commence to be active there is a risk that this will put undue pressure on the fishery resource.
[67] Jobfish raised the drought as an event special circumstance. The Chief Executive’s response was that the drought was taken into account in the policy formulation, it affected all fishers in that particular fishery equally and Jobfish made the commercial decision not to fish. From the catch records supplied by the Chief Executive other fishers remained active in the same catchment that Jobfish fished in and were able to catch amounts which would in each year meet the criteria. Jobfish was able to choose not to fish during a period when it was subject to the same environmental circumstances as other fishers. This circumstance was not special to Jobfish and its decision was a commercial one. It was well able to obtain its eels for export from other sources and made the commercial decision not to fish. When the other special circumstances are considered none of these apply to Jobfish. Jobfish has accepted the correctness of the logbook records. Jobfish was not a recent entrant and there are no other special circumstances which prevented it from meeting the required minimum commercial level.
[68] Should a licence holder who was not reliant on its E fishery symbol be able to retain it due to the fact that it has had a long involvement in the eel industry and has a large amount of capital investment? Whether or not 24
Jobfish was led to believe that this would be sufficient does not bind the Tribunal as there is no evidence that Jobfish has acted to its detriment in reliance on any statement made. If those were considered to be sufficient grounds for retaining its E fishery symbol, licence holders who have relied on their symbols would now have to compete with Jobfish in a fishery which has according to policy reached a point where the Chief Executive believes the eel fishery is fully utilised under current management arrangements. While Jobfish provided evidence that it had expended monies on maintaining and improving its facilities during the period in question it is clear that its transport tank and factory are used in its eel export business. The Gleeson brothers, for Jobfish, also purchased a motor boat in 2002, and from the evidence before the Tribunal it had very little use in the eel fishery during the period. The eel traps it maintains would be used exclusively for work involving its E symbol but again that was infrequently. Jobfish made a decision not to fish during the period in question knowing what its investment in the fishery was and this indicates that that investment is not jeopardised by Jobfish not having the authority to catch eels. If it did it would have continued to catch eels to get value from its investment.
[69] The decision of the Chief Executive raised the question of the lawfulness of Jobfish trapping eels at Lake Monduran which is part of the Kolan River catchment. Mr Gleeson at the hearing made it clear that the Kolan River catchment is the only area that Jobfish has access to for fishing. The catch records held by the Chief Executive show that the only recent catch recorded by Jobfish has been in the 2008 and 2009 years from Lake Monduran. In determining whether Jobfish should retain its E fishery symbol it is important to consider whether or not it can lawfully use the E fishery symbol in the area where it wishes to. If it can’t then the removal of the symbol will be less likely to have the characteristic of being unfair to Jobfish in terms of any disability placed on Jobfish by the decision.
[70] The Regulation46 provides that the eel fishery consists of either or both of the following:
(a) waters in an impoundment formed by a dam stated on the licence;
(b) waters in a privately owned artificially created impoundment within a catchment stated on the licence.
[71] The conditions attached to the current licence held by Jobfish enabled it to harvest eels from waters in a privately owned artificially created impoundment, from which permission to fish has been obtained from the owner, within the following catchments: catchment 35 Kolan River, catchment 36 Burnett River, catchment 43 Brisbane River. Jobfish made it clear that the only area which it considered suitable for eel fishing is Lake Monduran which is in the Kolan River catchment and that it was doubtful about the viability of fishing in farm dams.
[72] Jobfish has submitted that Lake Monduran is a privately owned artificially created impoundment within a catchment stated on the licence. Jobfish claims to have obtained permission to fish from the Kolan Shire Council, and
46 Regulation 310C of the Fisheries Regulation 2008. 25
that for the purposes of the application the council is a privately owned organisation. Jobfish did not provide any evidence to the Tribunal as to who owned Lake Monduran only that the Kolan Council granted approval for Jobfish to trap eels there.
[73] Jobfish provided a copy of the real property plan for the land on which both the Fred Haigh Dam and Lake Monduran are located. The Affidavit of Ms Payne has annexed to it a copy of the certificate of title in respect of that land; the owner of the land is stated to be Sunwater. The Tribunal is satisfied that Sunwater is the owner of Lake Monduran.
[74] The Tribunal accepts the evidence of Mr Gleeson that Jobfish had an approval to trap eels in Lake Monduran from the Kolan Shire Council and prior to that there were authorities from the Queensland Water Resources Commission. It is clear that the Kolan Shire Council’s view was that it had the authority to grant permission to trap eels from Lake Monduran and that Jobfish was advised to seek the Council’s consent by the boating and fisheries patrol. This consent was subject to conditions. These conditions included Condition 11 – Hold and maintain an Authority to take fish for Trade or Commerce as issued by the DPI & F for the Kolan River catchment including the Lake Monduran Reservoir and comply with all conditions of this authority and Condition 17 – This approval does not waive the requirement to obtain any other necessary approvals from other agencies as may be required.
[75] Sunwaters’ representative, referred to in the affidavit of Ms Payne, has stated that Sunwater has not provided Jobfish permission to commercially trap eels since January 2002 and that Sunwater has a policy of not allowing commercial trapping in its storages. Mr Hood’s statement indicates that there was an agreement between the Kolan Shire Council and Sunwater in regard to access to the Lake Monduran Reservoir. As submitted by the Chief Executive the agreement was not before the Tribunal so that the question of what authority was granted to the Council by Sunwater is unclear.
[76] The question of whether or not consent was granted is only determinative where the impoundment was a privately owned artificially created impoundment. The Chief Executive submitted that this term should be limited to privately owned waters such as those in farm dams. This accords with the example given in the Annual Status Report 2009 Queensland Eel Fishery at page 4 of a “farm dam” being an example of such an impoundment. Jobfish also submitted that for the purpose of the application the Kolan Shire Council is a privately owned organisation. The Kolan Shire Council was not a privately owned organisation it was a local authority created by statute and therefore even if it was the owner of Lake Monduran the lake would not have been privately owned.
[77] There is no requirement that consent be separately obtained where the impoundment is in respect of waters in an impoundment formed by a dam stated on the licence. In his material Mr Gleeson described Lake Monduran as having been formed with the creation of a large dam wall across the 26
Kolan River. A dam47 is defined as a barrier of concrete, earth, etc built across a river to create a body of water. Impound48 is defined as to collect (water) in a reservoir or dam. The Fred Haigh Dam is the dam which has been placed across the Kolan River. Lake Monduran is the name of the impoundment of water which was created by the Fred Haigh Dam. Jobfish submitted that the terms Fred Haigh Dam and Lake Monduran were separately referred to in the Fisheries (Freshwater) Amendment Management Plan (No 1) 2002 and this was evidence that they were separate. The current schedule of prescribed stocked impoundments49 includes in its list Fred Haigh Dam (Lake Monduran).
[78] Lake Monduran is not a privately owned artificially created impoundment of water, it is an impoundment created by a dam. For Jobfish to have the authority to trap eels at Lake Monduran the Fred Haigh Dam would have to have been stated on its licence. This is not the case and therefore even if Jobfish were to retain its E fishery symbol it would not be able to trap eels in Lake Monduran.
[79] Jobfish continues to have an association with the eel industry through its live export business. It has made commercial decisions not to trap eels itself and as a result has become subject to the latent effort policy. While this may have been at a time of drought, other fishers continued in the fishery and all were subject to the same circumstances, so this was not a special circumstance available to Jobfish. Jobfish provided no evidence to the Tribunal that the removal of the E fishery symbol would affect its ability to continue its eel export business and utilise the majority of the investment it has in that business. The place where it desired to trap eels is not one that it is authorised to use. Jobfish has changed its business model and on the evidence provided to the Tribunal this has been the case since as long ago as 1991, in terms of sourcing eels from interstate. The eel fishery has been restricted by government policy over many years but that has not stopped Jobfish from continuing its business. Considering the object of the Fisheries Act 1994 in terms of ecologically sustainable development and accepting the basis of the policy that the eel fishery, as is limited by the allowable fishing sites, is fully utilised by those who were active in the fishery at the time the latent effort was formulated it is not manifestly unfair that Jobfish have its E fishery symbol removed. Jobfish have not demonstrated that the removal of the E fishery symbol will cause them any disability, their only claim is that they have been in the industry for a long time. The investment they have in the eel industry is utilised in their eel export business and they demonstrated no detriment in relation to that investment if the E fishery symbol were removed.
[80] The decision of the Chief Executive is confirmed.
47 Collins Concise Dictionary of the English Language. 48 Collins Concise Dictionary of the English Language. 49 Schedule 10A of the Fisheries Regulation 2008.