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.