Humane Society International and Minister for the Environment and Heritage
[2006] AATA 298
•3 April 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 298
ADMINISTRATIVE APPEALS TRIBUNAL № N2005/339
GENERAL ADMINISTRATIVE DIVISION
Re: HUMANE SOCIETY INTERNATIONAL
Applicant
And: MINISTER FOR THE ENVIRONMENT
AND HERITAGE
Respondent
DECISION
Tribunal: The Hon Howard Olney AM QC, Deputy President
Mrs Josephine Kelly, Senior Member
Mr I. R. Way, Member
Date:3 April 2006
Place:Sydney
Decision:The Tribunal affirms the decision under review.
. . . . . . . . . . . [sgd]. . . . . . . . . . . . .
Deputy President Olney
CATCHWORDS
ENVIRONMENTAL LAW – Review of decision to declare fishing operations in the Southern Bluefin Tuna (SBT) Fishery to be an approved wildlife trading operation – SBT is an exempt native specimen – Minister must rely primarily upon the outcome of any assessment carried out for the purposes of deciding if a commercial fishery is an approved wildlife trade operation – Minister when making a declaration must consider if it is consistent with objects of the Act, if it will be detrimental to survival of SBT, if it is likely to threaten any relevant ecosystem – SBT is a highly valued fish – Australia a member of Convention for the Conservation of SBT which establishes global total allowable catch – Australian SBT fishery is managed by Australian Fisheries Management Authority (AFMA) and the SBT Fisheries management plan – AFMA must manage and prepare assessments for the Australian SBT Fishery in accordance with efficiency, precautionary principle, economic efficiency, cost recovery and implementation of Australian obligations under international agreements – principles governing the fishery are that the fishery is conducted in a manner that does not lead to overfishing and managed to minimise their impact on function and biological diversity of the ecosystem – Tribunal can rely on this assessment – Tribunal relies primarily on this assessment – Decision affirmed.
LEGISLATION
Environment Protection and Biodiversity Conservation Act 1999 ss Part 10, Part 13A, Part 13, 146, 153, 178, 303 BA, 303DB, 303DD, 303FN, 303FRA, 303FT, 303GJ, 391, 502, 503
Fisheries Management Act 1991 ss 17, 18
Fisheries Administration Act 1991
REASONS FOR DECISION
3 April 2006 The Hon Howard Olney AM QC, Deputy President
Mrs Josephine Kelly, Senior Member
Mr I. R. Way, Member
THE APPLICATION
1. The applicant seeks review of a decision of the Minister for the Environment and Heritage (the Minister) declaring fishing operations in the Southern Bluefin Tuna (SBT) Fishery to be an approved wildlife trade operation pursuant to the provisions of s 303FN of the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act). The Tribunal’s jurisdiction to review the Minister’s decision is conferred by s 303GJ(1)(h) of the EPBC Act.
EXEMPT NATIVE WILDLIFE SPECIMENS
2. Part 13A of the EPBC Act (ss 303BA-303GY) bears the heading “International movement of wildlife specimens”. Section 303DD makes it an offence to export a regulated native specimen being a specimen that, inter alia, is not included in a list of exempt native specimens established under s 303DB. By instrument published in the Gazette on 1 December 2004, the Minister amended the list of exempt native specimens to include fish taken in the SBT Fishery subject to restrictions including that the specimens are covered by the declaration of an approved wildlife trade operation under s 303FN relating to the fishery. (On some occasions the acronym WTO is used to refer to a wildlife trade operation). For the purposes of s 303FN an operation is a wildlife trade operation if it is an operation for the taking of specimens and is, relevantly, a commercial fishery (s 303FN(10)(d)).
THE DECLARATION
3. On 1 December 2004, the Minister caused to be published in the Gazette a declaration dated 10 November 2004, the operative provisions of which state:
I hereby declare that the operations for the harvesting of specimens that are, or are derived from, fish or invertebrates, other than specimens listed under part 13 of the Act, taken in the Southern Bluefin Tuna Fishery, as defined in the Southern Bluefin Tuna Fishery Management Plan 1995 (as amended) made under the Fisheries Management Act 1991, to be an approved Wildlife Trade Operation, in accordance with s 303FN(2) and (10)(d), for the purposes of the Act.
Unless amended or revoked, this declaration:
(a)is valid until 17 November 2007; and
(b)is subject to the following conditions:
(1)Operation of the fishery will be carried out in accordance with the Southern Bluefin Tuna Fishery Management Plan 1995 (as amended).
(2)The Australian Fisheries Management Authority (AFMA) will inform the Department of the Environment and Heritage of any changes to the Southern Bluefin Tuna Fishery Management Plan 1995 (as amended) or other significant policy documents.
(3)Reports to be produced and presented to the Department of the Environment and Heritage annually, and to include:
· a statement of the extent to which the performance criteria of the Southern Bluefin Tuna Fishery Management Plan 1995 (as amended) were met in the year; and
· information sufficient to allow assessment of the progress of AFMA in implementing the recommendations made in the Strategic Assessment of the Southern Bluefin Tuna Fishery 2004.
4. The combined effect of the Minister’s declaration and the listing of the SBT as an exempt native specimen is that during the currency of the approved wildlife trade operation the export of SBT is not an offence against s 303DD.
PART 13 – THREATENED SPECIES
5. One issue raised by the applicant is that the Minister had acted prematurely in making the declaration before deliberations by the Minister’s Threatened Species Scientific Committee as to whether or not SBT should be listed as an endangered species pursuant to Part 13 of the EPBC Act had been finalised.
6. Part 13 of the EPBC Act deals, inter alia, with the listing of threatened species. “Endangered” is a category of threatened species (s 178). The Threatened Species Scientific Committee is established under s 502 and its functions include advising the Minister on amending and updating the lists established under Part 13 (s 503(b)).
7. As the declaration made by the Minister expressly excludes from the approved wildlife trade operation specimens listed under Part 13 of the EPBC Act, it would seem that there is no basis for the applicant’s complaint. If SBT is subsequently listed under Part 13 during the period of the approved wildlife trade operation, the taking of SBT will no longer be authorised by the declaration; if on the other hand SBT is not so listed there can be no real objection on that particular ground to the making of the declaration.
THE STATUTORY SCHEME
8. Section 303FN mandates that the Minister must not declare an operation to be an approved wildlife trade operation unless satisfied as to certain matters (s 303FN(3)) and further requires that in deciding whether to declare an operation to be an approved wildlife trade operation the Minister must have regard to certain other matters (s 303FN(4)).
9. So far as presently relevant the matters as to which the Minister must be satisfied pursuant to s 303FN(3) before declaring an operation to be an approved wildlife trade operation under s 303FN(3) are that:
(a)the operation is consistent with the objects of this Part; and
(b)the operation will not be detrimental to:
(i)the survival of a taxon to which the operation relates; or
(ii)the conservation status of a taxon to which the operation relates; and
(ba)the operation will not be likely to threaten any relevant ecosystem including (but not limited to) any habitat or biodiversity; ...
The objects of Part 13A as set out in s 303 BA(1) are:
(a)to ensure that Australia complies with its obligations under CITES and the Biodiversity Convention;
(b)to protect wildlife that may be adversely affected by trade;
(c)to promote the conservation of biodiversity in Australia and other countries;
(d)to ensure that any commercial utilisation of Australian native wildlife for the purposes of export is managed in an ecologically sustainable way;
(e)to promote the humane treatment of wildlife;
(f)to ensure ethical conduct during any research associated with the utilisation of wildlife;
(h)to ensure that the precautionary principle is taken into account in making decisions relating to the utilisation of wildlife.
10. CITES (referred to in s 303BA(1)(a)) means the Convention on International Trade in Endangered Species of Wild Fauna and Flora done at Washington on 3 March 1973, as amended and in force for Australia from time to time. The Convention concerns specimens listed in the appendices to the Convention, which are thereby afforded varying levels or types of protection from over‑exploitation by trade. SBT is not a CITES listed specimen.
11. No issue concerning the Biodiversity Convention has been raised in the application. Relevantly, Article 14 of the Convention imposes upon contracting parties the obligation, as far as possible, and as appropriate, to:
(a)introduce appropriate procedures requiring environmental impact assessment of its proposed projects that are likely to have significant adverse effects on biological diversity with a view to avoiding or minimizing such effects and, where appropriate, allow for public participation in such procedures; and
(b)introduce appropriate arrangements to ensure that the environmental consequences of its programs and policies that are likely to have significant adverse impacts on biological diversity are duly taken into account.
The enactment of Part 13A of the EPBC Act in 2001 appears to be a direct response to Australia’s obligations under the Convention.
12. The precautionary principle is that lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage (EPBC Act s 391(2)). Section 391(1) requires that the Minister must take account of the precautionary principle in making a decision listed in s 391(3) (which includes a decision about declaring an operation to be an approved wildlife trade operation) to the extent that he or she can do so consistently with the other provisions of the Act.
13. The matters relevant to this application to which the Minister must have regard pursuant to s 303FN(4) in deciding whether to declare an operation an approved wildlife trade operation under s 303FN(2) are:
(a)the significance of the impact of the operation on an ecosystem (for example, an impact on habitat or biodiversity); and
(b)the effectiveness of the management arrangements for the operation (including monitoring procedures).
However, in deciding whether to declare that a commercial fishery is an approved wildlife trade operation for the purposes of s 303FN, the Minister must rely primarily on the outcomes of any assessment in relation to the fishery carried out for the purposes of Division 1 or 2 of Part 10 of the EPBC Act (s 303FN(10A)) but this does not limit the matters that may be taken into account in deciding whether to make such a declaration (s 303FN(10B)).
14. Division 1 of Part 10 of the EPBC Act (s 146) provides for the making of agreements between the Minister and other responsible persons for the adoption or implementation of a policy, plan or program that an assessment be made of the impacts of actions under the policy, plan or program on a matter protected by a provision of Part 3 of the Act (s 146(1)). Subsection 146(2) sets out in detail the various processes that are to be provided for in such an agreement.
15. Regulations under the EPBC Act may prescribe an assessment process that is to be used for the purposes of, inter alia, s 303FN to assess the potential impacts on the environment of a wildlife trade operation where the operation is likely to have a significant impact on the environment (s 303FRA(1)), however, such regulations do not apply in relation to a wildlife trade operation if the operation is for the taking of specimens and is a commercial fishery (s 303FRA(4)). It follows that any regulations made in exercise of the power conferred by s 303FRA have no application to the assessment process involved in relation to the declaration presently under consideration.
16. There is a clear legislative intention disclosed by s 303FN(10A) that indicates that the assessment process applicable to a declaration under s 303FN(2) in relation to a commercial fishery is to be governed by an assessment made pursuant to Part 10. The exclusion of commercial fisheries, but not other wildlife trade operations, from the regulatory regime established under s 303FRA tends to add emphasis to the significance of the requirement of s 303FN(10A) that the Minister must rely primarily upon the outcome of any assessment carried out for the purposes of Division 1 or 2 of Part 10 in deciding whether to declare a commercial fishery an approved wildlife trade operation.
17. By way of summary, it is appropriate to observe that in order to affirm the Minister's decision to make the declaration the Tribunal must be satisfied that the operation to which it relates:
(i)is consistent with the objects of Part 13A (s 303FN(3)(a));
(ii)will not be detrimental to the survival or conservation status of SBT (s 303FN(3)(b));
(iii)will not be likely to threaten any relevant ecosystem including any habitat or biodiversity (s 303FN(3)(ba));
and the Tribunal must have regard to:
(iv)the significance of the impact of the operation on an ecosystem (s 303FN(4)(a)); and
(v)the effectiveness of the management arrangements for the operation (including monitoring procedures) (s 303FN(4)(b)).
In performing its functions the Tribunal must rely primarily on the outcomes of any assessment in relation to the SBT fishery carried out for the purposes of Division 1 or 2 of Part 10 (s 303FN(10A)) but may take other matters into account (s 303FB(10B)).
18. In view of the primacy accorded by s 303FN(10A) to any assessment under Part 10 of the EPBC Act in the decision making process, it will be appropriate to review the outcomes of relevant assessments and then to take into account other relevant evidentiary material that is before the Tribunal.
THE HEARING
19. The application was heard over a period of six days on 23, 26‑29 September 2005 and 11 November 2005.
20. At the outset, an issue was raised as to the confidential nature of certain documents relating to a meeting of a body known as the Southern Bluefin Management Advisory Committee that had been held on 21 and 22 September 2005. The general thrust of the issue raised was that the documents in question contained confidential material which was to be put before, and considered by, a meeting of the Commission for the Conservation of Southern Bluefin Tuna (CCSBT) scheduled to be held in mid‑October 2005. (Further reference to the CCSBT is made later in this decision.) It is unnecessary here to canvass in detail the nature of the material except to say it related to the stance which the Australian delegation might take at the then upcoming meeting of the CCSBT. After hearing argument from interested parties, the Tribunal made orders pursuant to s 35(2) of the Administrative Appeals Tribunal Act 1975 restricting access to the relevant documents and to related parts of the transcript, as well as giving directions as to the persons who may be present during such part of the proceedings as involved discussion of those documents. At the conclusion of proceedings on 29 September 2005 the Tribunal agreed to adjourn the matter until 11 November 2005 in anticipation that the CCSBT meeting to be held in October 2005 may produce an outcome relevant to the issues before the Tribunal. Following the October 2005 meeting of the CCSBT there was no longer any basis for the claim of confidentiality as the material in question was then in the public domain.
21. The documentary material lodged with the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents) extended to more than 1,750 pages. In addition, other documents were tendered in the course of the hearing including affidavits of Dr Thomas W. Polachek, Dr James Findlay and Messrs Glenn David Hurry and Andrew McNee, each of whom gave oral evidence and was cross‑examined. The latter three were called to give evidence on behalf of the Minister. (Other affidavit evidence tendered in relation to the confidentiality issue is not relevant to the substantive issues before the Tribunal).
22. An affidavit of Professor Rothwell was tendered. He was not cross-examined. His evidence was not in dispute, including that the Convention for the Conservation of Southern Bluefin Tuna gives Australia the power to veto any proposed decision by the CCSBT on total allowable catch or quota allocation.
23. The Australian Fisheries Management Authority (AFMA) was granted leave to make a submission following a suggestion by the applicant, by way of an alternative to setting aside the Minister’s decision, that the Tribunal might instead vary the Minister’s declaration by imposing a limit on the catch authorised to be taken pursuant to the approved wildlife trade operation. AFMA disputes that the Minister, hence the Tribunal, has power to impose such a condition. In a detailed submission AFMA examined the complex interaction between the Fisheries Administration Act 1991, the Fisheries Management Act 1991 and the EPBC Act and the functions and responsibilities of AFMA under each. Central to the matter in issue is s 303FT of the EPBC Act and in particular paragraph (4)(c) of that section.
24. The heading to s 303FT is “Additional provisions relating to declarations”. The section applies, inter alia, to a declaration made under s 303FN (s 303FT(1)). If the Minister considers that an operation should be the subject of a declaration only to the extent that it relates to a particular class of specimens, and the instrument of declaration specifies that class of specimens, the operation is covered by the declaration only to the extent that it relates to that class of specimens (s 303FT(3)). In the instant case the Minister has relied upon this provision by confining the operation to the harvesting of fish taken in the SBT Fishery but excluding specimens listed under Part 13. Subsection (4) is of particular relevance. It provides:
(4)The Minister may make a declaration about a plan or operation even though he or she considers that the plan or operation should be the subject of the declaration only:
(a)during a particular period; or
(b)while certain circumstances exist; or
(c)while a certain condition is complied with.
In such a case, the instrument of declaration is to specify the period, circumstances or condition.
Some guidance as to the extent of the operation if subparagraph (4)(c) is to be found in subsection (8) which simply states that “a condition may relate to reporting or monitoring”.
25. There is nothing to be found in s 303FT to support a proposition that the power to impose conditions pursuant to ss (4)(c) is limited to conditions relating to reporting or monitoring and indeed the Minister’s declaration, although it does impose conditions of that type, also imposes under paragraph (b)(1) the condition that the operation of the fishery will be carried out in accordance with the SBT Fishery Management Plan 1995 (as amended). It cannot be suggested that the latter condition relates merely to reporting or monitoring. On any construction of the section it would appear that the scope of ss (4)(c) is unlimited and that in appropriate circumstances it may be open to the Minister to impose a condition which has the effect of limiting the volume or number of specimens that could be taken as part of the operation in question.
SOUTHERN BLUEFIN TUNA
26. The following description of the general biological characteristics of SBT is based upon the expert evidence of Dr Polachek and is not in dispute. SBT is a highly migratory species of pelagic fish found throughout most of the southern temperate zone oceans, primary between 30° South and 45° South, except in the easterly regions of the South Pacific. They live up to 40 years or more and can grow to weights of up to 200 kilograms and to lengths of up to 200 centimetres. There is a single global stock of SBT with one known spawning ground in the Indian Ocean south of Java between 7° South and 20° South. Spawning occurs between September and April. Young fish migrate southward along the west coast of Australia and a large number tend to spend their summers (December to April) in southern and eastern coastal waters of Australia. At this stage, generally at around 9 to 12 months, they are considered recruited to the stock. After age 1 year, a large but unknown fraction of juvenile SBT spend their summers in near‑shore waters around southern Australia, primarily in the Great Australian Bight. They generally spend their winters in deeper oceanic waters and can be found as far as South Africa. When SBT are near Australia they form surface schools but when in deeper oceanic waters they are not found near the surface. After about age 5 they are seldom found in near‑shore waters. Upon reaching maturity (8 to 14 years) individuals return to the spawning ground south of Java. Spawning occurs over an extended period. The length of time that individuals spend on the spawning ground is not known nor is it known whether individuals spawn every year. After spawning they return to the feeding grounds in the southern oceans.
27. SBT is one of the most highly valued fish for sashimi, especially in Japan, which is the main market. The species has been identified as vulnerable to overfishing.
28. Although up to 30 countries are involved in taking SBT the majority of the global catch is taken by Australia, Japan, New Zealand, Indonesia and Korea. Two separate methods are used in taking SBT, namely long lining and purse seine. Long lining involves catching fish on a mainline of several kilometres in length (usually 20 to 50 kilometres in the Australian fishery but up to 100 kilometres in the global fishery) with many hundreds or even thousands of hooks. The purse seine method involves gathering surface schools of SBT in large nets, moving them into tow cages for low speed transfer to farms located close to shore and then transferring them into farm cages where they are fattened before sale.
29. The majority of the global catch of SBT is taken by long lining; the remainder is taken by purse seining. Preliminary figures for the 2001‑2003 season suggest that the proportions are 8,237 tonnes (or 58.7 per cent) from long lining and 5,787 tonnes (or 41.3 per cent) from purse seining. Almost all (99.7 per cent) of the SBT taken in the Australian Fishery are harvested by purse seine. Virtually the whole of the catch (98 per cent or more) is taken to farm cages in Port Lincoln, South Australia, to be fattened and grown before sale.
30. SBT has been the focus of an international fishery since the 1950s. Initially Japanese long liners fished the spawning grounds south of Java and in the 1960s extended into SBT areas in the southern oceans. The long line catch peaked in the early 1960s at 81,605 tonnes. In 1982, the Australian catch peaked at 21,500 tonnes, most of which came from purse seining for canning. Large scale catches by Japanese vessels in the 1960s and later by both Japanese and Australian vessels in the 1970s and 1980s diminished the population and by the early 1980s there were signs that SBT spawning stock and juveniles were dangerously overfished. Australia, Japan and New Zealand introduced informal arrangements for collaborative management of the fishery and in 1989, after progressive reductions during the 1980s, they set informal catch limits of 6,065 tonnes (Japan), 5,265 tonnes (Australia) and 420 tonnes (New Zealand). These catch limits which remained up to 1997 involved substantial reductions in take, the object being to allow the stock to rebuild after decades of commercial harvesting which had caused steep declines in parental biomass.
CONVENTION FOR THE CONSERVATION OF SBT
31. In 1994 Australia, Japan and New Zealand entered into the Convention for the Conservation of Southern Bluefin Tuna (the Convention) which provides for the establishment of the CCSBT and a Scientific Committee as an advisory body to it. One major function of the CCSBT is to decide upon a total allowable catch and its allocation among the parties (Article 8.1(b)). (On some occasions the acronym TAC is used to refer to the total allowable catch). Article 14 provides for observer states to engage with the processes of the Convention and by Article 18 other states may accede to the Convention and thereby to be bound by its terms.
32. In late 2001 the Republic of Korea acceded to the Convention and in August 2002 the Fishing Entity of Taiwan became a member of the Extended CCSBT. In 2004 the Philippines became a formal co‑operating non‑member whilst Indonesia and South Africa have observer status.
33. For the period of three years after the Convention was entered into, the parties continued to observe the previously agreed reduced catch limits but between 1998 and 2002 agreement could not be reached. However, for the 2003‑2004 fishing season the CCSBT set the global total allowable catch at 14,030 tonnes with the following national catch allocations for members:
Japan 6,065 tonnes
Australia 5,625 tonnes
Taiwan 1,140 tonnes
Korea 1,140 tonnes
New Zealand 420 tonnes
Non‑members were asked to abide bycatch limits of 50 tonnes (the Philippines), 30 tonnes (South Africa) and 800 tonnes (Indonesia). In the absence of unanimous agreement between the parties, as occurred in 2005, the previously agreed total allowable catch and national allocations remain in force.
34. The object of setting total allowable catch levels since the late 1980s was to rebuild the spawning biomass to its 1980 level first by 2010, and then by 2020, but spawning biomass of SBT remains at historically low levels. There is consensus amongst scientists that the objective of rebuilding the spawning biomass to its 1980 level by 2020 is unlikely to be achieved.
MANAGEMENT PLAN
35. Subject to certain exceptions that are not presently relevant, AFMA is required by s 17 of the Fisheries Management Act 1991 to determine, in writing, plans of management for all fisheries. Section 17 sets out a detailed procedure to be followed in the formulation of a plan of management and specifies various matters that are required to be dealt with in such a plan. Under s 18(1) the plan must first be submitted to the relevant Minister who may either accept the plan (s 18(2)) or refer it back to AFMA with an indication as to why it is not accepted (s 18(3)). In the latter event AFMA is required, as soon as practicable, to take such steps as appear to it to be necessary to ensure acceptance of the plan by the Minister (s 18(4)). If the Minister again does not accept the plan, the procedures of ss 18(3) and (4) continue to apply until the plan is either accepted by the Minister or withdrawn by AFMA.
36. Before AFMA determines a plan of management for a fishery under s 17 of the Fisheries Management Act 1991, it must make an agreement under s 146 of the EPBC Act for assessment of the impacts of actions under the plan on each matter protected by a provision of Part 3 and consider any recommendations made by the Minister under the agreement (EPBC Act, s 148). Section 153 provides for the endorsement and accreditation of a plan of management under the Fisheries Management Act 1991 made pursuant to an agreement under s 146.
37. In August 2004 the Minister made an in principle decision to accredit the SBT Fishery Management Plan 1995 (as amended) thereby incorporating amendments that had been recommended by AFMA in the course of carrying out the strategic assessment of the SBT fishery (to which reference is made below). The amended plan came into effect on 1 December 2004.
38. The Australian SBT Fishery is managed by AFMA under the Fisheries Management Act 1991 and the SBT Fisheries Management Plan. In managing the fishery AFMA takes advice from the SBT Management Advisory Committee which is an expertise‑based reference group including representatives from the conservation movement, industry, recreational fishing and Federal, State and Territory governments. Under the SBT Fishery Management Plan, AFMA is required to manage the Australian SBT fishery in a manner consistent with the principles of efficiency and cost‑effectiveness; ecologically sustainable development and the exercise of the precautionary principle; economic efficiency; accountability; cost recovery; and implementation of Australia’s obligations under international agreements.
39. AFMA is responsible for determining Australia’s national catch allocation for each fishing season, for dividing that catch allocation among operators as individual transferable quotas (in the form of statutory fishing rights), ensuring that Australia does not exceed its national catch allocation, managing interactions with other species in the Australian SBT Fishery, and managing interactions with SBT in other Australian fisheries. Under the SBT Fishery Management Plan, AFMA may not determine a national catch allocation that is higher than Australia’s allocation as determined by the CCSBT. It must also have regard to decisions of the CCSBT and Australia’s obligations under international agreements in its management of the SBT Fishery.
AFMA STRATEGIC ASSESSMENT
40. In September 2002, AFMA produced a draft report entitled “Assessment Report – Southern Bluefin Tuna” (the AFMA assessment) which was made pursuant to an agreement between the Minister and AFMA entered into in December 2001 under the provisions of s 146 of the EPBC Act. An addendum to the report was produced in June 2004 following public comment and submissions.
41. The AFMA assessment is a substantial document comprising some 140 pages. It is in 3 parts which respectively describe the assessment process and background information on AFMA, provides a detailed description of the SBT fishery and details the assessment of the SBT fishery. The following general observations are made in the Executive Summary of the report:
The Assessment Report for the Southern Bluefin Tuna Fishery has been developed in accordance with AFMA’s obligations under the Environment Protection and Biodiversity Conservation Act 1999 to prepare strategic assessment reports for all Commonwealth fisheries and assessment reports for those fisheries with an export component. The report considers impacts of the fishery on species caught within the fishery and on the broader marine environment.
Southern bluefin tuna is the only target species landed in the fishery. Southern bluefin tuna is highly migratory species and is fished by other nations.
In the early 1980’s concerns about the status of the fish stock resulted in Australia becoming a member of the Commission of the Conservation of Southern Bluefin Tuna (Commission) and signatory to the Convention for the Conservation of Southern Bluefin Tuna. Commission members are Australia, New Zealand, Japan and more recently Korea and Taiwan. CCSBT meets annually to discuss management of southern bluefin tuna and sets an annual allowable catch for each member country.
Currently, the SBT stock is considered by the CCSBT scientists to be overfished with the spawning stock severely depleted and current catches severely limiting probability of rebuilding to Commission agreed levels.
This report assesses the Australian management regime under the Southern Bluefin Tuna Fishery Management Plan 1995 and draft SBT plan amendments (Annex 2). Due to the influence and role of the international arrangements in the status of the SBT stocks, these are referred to where appropriate when assessing the Australian fishery.
The assessment was undertaken primarily by collecting existing data and reports relating to the SBT fishery. This information was then checked through scientific, environmental and fishery management agencies, and discussions with industry and non‑government organisation representatives.
The summary then identifies and discusses what are said to be the two principles which have guided the assessment namely:
Principle 1: That the fishery is conducted in a manner that does not lead to over‑fishing, or for those stocks that are over‑fished, the fishery must be conducted such that there is a high degree of probability that stocks will recover.
Principle 2: Fishing operations should be managed to minimise their impact on the structure, productivity, function and biological diversity of the ecosystem.
Although not expressed in the same form, the two principles directly address the issues raised by ss (3) and (4) of s 303FN of the EPBC Act.
42. The Executive Summary asserts in relation to Principle 1:
When implemented in the Australian fishery under the management plan, AFMA believes there is a strong, verifiable framework to ensure that Australia meets national and international obligations for SBT. Management arrangements that will address this requirement are:
·Management plan obligations that commit Australia to ensuring that SBT mortality is accurately counted using a reliable information collection system;
·Implementation of an observer program that will provide independently validated data in the purse seine and long line sectors relating to catch of target and bycatch species;
·A robust stock assessment process of dynamics and status of fishery, which Australian scientist actively contribute to (as part of the Commission process); and
·Arrangements in place that directly control the level of take in the fishery, and also procedures for limiting take in emergency situations.
In relation to principle 2, the following comments are made:
For the Australian fishery, this objective has a high chance of being achieved. The reasons include:
The nature of Australian SBT fishing operations (primarily purse‑seine) is considered to have a low impact;
Assessment and monitoring of ecological impacts and potential risk is being addressed via the ecological risk assessment of Commonwealth Fisheries being undertaken by CSIRO
Implementation of the Bycatch Action Plan in Australia's tuna fishery; and
Management plan obligations that impose conditions on fishers to ensure protection of ecologically related, associated or dependant species.
Future Actions in the Australian SBT Fishery
The major findings of the assessment indicate that the Australian management arrangements for the fishery are in place to allow for the achievement of AFMA's objectives, and to satisfy the EPBC Act guidelines.
Areas that will need to be built upon in the next five years within the Australian fishery have been identified as the following:
Data collection and monitoring strategy – there will need to be further progress relating to the collection of independently verified data relating to target and bycatch species, to allow for environmentally responsible management arrangements that are in place.
Risk Assessment and implementation – following the completion of a risk assessment of the fishery, actions to address issues of concern will need to occur.
Accountability – AFMA has committed to a number of activities that will need thorough and regular evaluation to ensure that the objectives and measures identified in the amended Southern Bluefin Tuna Fishery Management Plan are achieved.
Active contribution to the strategic directions of the CCSBT – with the current concerns about the status of SBT parental stock, Australia must continue to play a strong role in the future actions of the Commission to ensure the responsible management of the global fishery.
43. The observations relating to each of the two principles expressed in the Executive Summary as guiding the assessment, although not specifically directed to the statutory responsibilities of the Minister under s 303FN of the EPBC Act, do nevertheless address the substance of those issues. Indeed, nothing has been raised in the course of this proceeding to suggest that the AFMA assessment is deficient in any respect, nor is it said that the observations quoted from the Executive Summary misstate the conclusions expressed in the body of the report. In these circumstances, absent any contradictory evidence, it would be open to the Tribunal in accordance with the dictates of s 303FN(10A) to rely upon the assessment as providing a proper basis to conclude that the conditions precedent to the making of a declaration under s 303FN(2) have been satisfied.
THE EVIDENCE
44. Dr Polachek has academic qualifications in zoology and fisheries/ecology. He is a Senior Principal Research Scientist in the Pelagic Ecosystems Sub‑Program in the Division of Marine Research, CSIRO Marine and Atmospheric Research. His curriculum vitae attests to his high standing in the field of marine science. He was engaged jointly by the parties to the application to provide reports and to express opinions in response to questions raised by the parties. His responses to the questions posed are both extensive and detailed.
45. Dr Polachek is very clearly a leading authority in relation to SBT. The procedure followed was for the Minister to initially submit a series of questions following which the applicant did likewise. Dr Polachek responded in considerable detail to both series as well as to supplementary questions and several requests for clarification of his responses. His affidavit of 26 August 2005 annexes as exhibits the following documents:
TWP1Dr Polachek’s curriculum vitae;
TWP2The Minister’s questions (18 July 2005);
TWP3The applicant’s questions (28 July 2005);
TWP4Email correspondence on clarification of Minister’s assumption about the definition of ecological sustainability (28 July 2005 – 24 August 2005)
TWP5A bundle of correspondence raising supplementary questions;
TWP6Responses to Minister’s questions including supplementary questions;
TWP7Responses to applicant’s questions;
TWP8List of acronyms used;
TWP9List of literature cited in reports
46. Apart from his written testimony, Dr Polachek gave oral evidence on 27 and 28 September 2005 when he was exhaustively cross‑examined by counsel for both parties. The transcript of his evidence occupies some 113 pages. The cross‑examination was not entirely helpful to the Tribunal as to a large extent the witness was asked to make factual assumptions asserted by counsel and then to express an opinion on the basis of those assumptions. The process whereby specific written questions were submitted and responded to in writing provided a much more coherent body of evidence.
47. Question 28 posed by the applicant to Dr Polachek asked:
Do you consider that the current management arrangements in place in Australia are effective in ensuring that:
...
(d) the WTO will not be detrimental to the survival of the SBT?
(e) the WTO will not be detrimental to the conservation status of SBT?
...
Dr Polachek’s answer to questions 28(d) and (e) was:
I do not feel that I have the expertise to answer these two question as I do not have the economic, sociological and political expertise to assess how WTO would affect the levels of SBT caught or the methods being used to capture them, both in Australia and internationally.
48. The applicant’s question 32 to Dr Polachek was:
Please also refer to paragraph 44 of the Minister’s Statement of Reasons, at which the Minister states:
44.I was satisfied that the fishery would not be likely to threaten any relevant ecosystem over the period from December 2004 until December 2007
...
(b)In your opinion, is enough information known about the ecosystem of which the SBT is part for you to be satisfied that the WTO is not likely to threaten it?
Dr Polachek’s answer to question 32(b) was:
I do not feel that I have the expertise to answer this question as I do not have the economic, sociological and political expertise to assess how WTO would affect the levels of SBT caught or the methods used to capture them, both in Australia and internationally. Nevertheless, the response to (a) and the Minister’s questions provide some information relevant to the first part of this question.
49. In a letter bearing date 26 August 2005 (which was obviously written well prior to that date) the applicant’s solicitor referred Dr Polachek to a draft of his responses to questions put to him by the parties and sought clarification of a number of matters including:
4)At page 23 of your response to HSI’s questions, in response to question 29 (sic) (d) and (e), and at page 26 in response to questions 33 (sic) (b), you suggested you did not have the expertise to assess, “how WTO would affect the levels of SBT caught...”. We apologise if the phrasing of our question caused any confusion. In case there has been confusion, in using the acronym “WTO”, we refer to the declaration of a Wildlife Trade Operation by the Minister which is the subject of these proceedings, which allows for the export of SBT caught in the Australian SBT fishery and allows the Australian TAC to continue at 5,265 tonnes for the next 3 years. We did not intend to refer to the World Trade Organisation. If this changes your answers to the questions, please provide your new answers. If this was not the cause of your reluctance to answer our client’s questions, please let us know and we will rephrase the question.
50. By email sent on 22 august 2005, Dr Polachek responded to the question referred to in the preceding paragraph in these terms:
No – I was not confused about the WTO acronym here. However, I was under the impression that the WTO declaration only deals with allowing for the exportation of SBT and that it was neither required for the fishery to continue nor was what would determine future Australian TACs. In other words, with or without a WTO declaration by the minister, TACs could be adjusted upwards or downward. If SBT were not allowed to be exported, then this would clearly have large impacts for economics of the current SBT fishery. However, it is not clear to me how this would translate into changes in catch levels within Australia. In addition, even if the lack of WTO approval did restrict Australia’s catches, it is not clear how this might then affect what happens to catches outside of Australia (e.g. what role would Australia continue to play in the CCSBT?). It was in this context of not being able to assess or predict how the lack of WTO approval may affect future catch levels that I felt that I did not have the appropriate expertise. Can you clarify whether there is a direct link between WTO and the Australian TAC and if so what it is? In any case, in rephrasing this question, could you please indicate what assumptions are to be made about non‑Australian catches?
51. Dr Polachek’s answers to parts (a), (b) and (c) of the applicant’s question 28, are also quite enlightening. In the same question, his opinion was sought as to whether he considered the current arrangements in place in Australia are effective to ensure that:
(a)The SBT is protected;
(b)The SBT fishery is managed in an ecologically suitable way;
(c)The precautionary principle is taken into account by AFMA in setting the annual catch for the Fishery.
The responses given were:
(a)No, and this would not be possible because whatever the management arrangement within Australia they would not be sufficient to ensure that SBT is protected given its widespread distribution and the other fisheries which harvest it.
(b)Same response as for (a)
(c)I am not privy to the discussion undertaken by the AFMA board in their deliberations on the annual SBT catch limit. However, uncertainty does not appear to be the reason underlying the decision it has made nor a reason given for not having set the catch at some other level. Similarly, uncertainty has not been a substantive reason underlying the advice provided by SBTMAC with respect to the setting of the annual catch limit.
The response provided in relation to question 28(c) indicates that the precautionary principle is not relevant in the context of the matter under review. One thing that did emerge from his evidence is that there are no absolute answers to the questions raised by s 303FN of the EPBC Act. Even the most experienced scientists talk in terms of probabilities based upon uncertain factual data. Indeed at one stage Dr Polachek, in answer to a question, rhetorically posed the further question, “How do you count the fish in the sea?”
52. Dr Findlay is currently a Senior Research Scientist and acting Program Leader in the Fisheries and Marine Sciences Services Program in the Bureau of Rural Sciences, an agency within the Commonwealth Department of Agriculture, Fisheries and Fauna (DAFF). He has academic qualifications in marine biology, zoology and aquaculture. He had previously worked as a Fisheries Manager with AFMA and as Assistant Director, International Relations, in the Fisheries and Aquaculture Branch, in the DAFF. His primary responsibility at AFMA was the management of the Eastern Tuna and Billfish Fishery (in which SBT is taken as an incidental catch). Whilst with International Relations Section of the Fisheries and Aquaculture Branch he worked predominantly on SBT policy. Since joining DAFF in 1998 he has attended meetings of CCSBT and since 2002 has attended meetings of the CCSBT Stock Assessment Committee and Scientific Committee.
53. Dr Findlay’s affidavit dated 26 August 2005 covers a broad spectrum of issues concerning in particular the status of the stock of SBT and the risks associated with the operation of the global SBT fishery. In dealing with the risk of biological extinction and detriment to conservation status Dr Findlay says (at paragraphs 29 and 30 of his affidavit):
29While recent catch levels are preventing rebuilding of the stock, there is also considerable evidence to suggest that recent catch levels will not directly result in rapid declines in the population. However, at low levels of spawning stock biomass, the SBT population will be less resilient to unfavourable oceanographic conditions and events such as recruitment failures (i.e. sustained periods of markedly lower recruitment) may occur resulting in further declines in the stock. It is difficult to predict the likelihood and impact of unfavourable oceanographic conditions.
30While the SBT stock level is well below internationally accepted standards for biological safety and fishery sustainability, it needs to be remembered that even at the stock’s current low levels there remain millions of fish in the SBT population across the full range of age classes. The risk of biological extinction is extremely low and in my opinion SBT cannot be considered a threatened species on this basis.
And at paragraph 33 he expressed his view as to the likelihood of detriment to the conservation status of the species in these terms:
33However, in considering whether the Australian SBT Fishery will be detrimental to the conservation status of the species, a key question is whether or not continuing the Australian SBT Fishery will result in further declines in stock. Over the past ten years, the spawning stock has been stable with average annual global catches in the order of 15,760. This suggests that removals have been approximately equal to the “surplus yield” of the stock. Surplus yield is the productivity of the stock over and above replacement of the stock that produced it. Current stock levels are well in excess of that which could be considered to constitute a significant extinction risk and a continuation of current fishing, including that by Australia, is unlikely to result in rapid declines in stock levels. In my view (and subject to the comment I made in paragraph 29 above), the continuation of the Australia fishery is not likely to be detrimental to the conservation status of the species.
54. Another important aspect of Dr Findlay’s affidavit evidence concerns the impact of the Australian SBT fishery on the ecosystem. At paragraphs 42 – 45 and 48 of the affidavit the subject is dealt with as follows:
42In contrast to prawn or other fisheries that use trawl nets towed behind the vessel to catch the fish, the methods used to catch SBT (principally purse seining and pelagic long lining) involve negligible impacts on the physical habitat.
43The harvesting of any fish necessarily alters the ecosystem in which they live. The amount of alteration to any ecosystem is dependent on the amount of fish harvested. In the case of the SBT, the population reduction in comparison to unfished levels (around 1952, when data started being collected on SBT) has been in the order of 90% and hence there is obviously some potential for significant changes to the ecosystem.
However, quantitative assessment of marine ecosystem changes is a new area of science and at this stage it is impossible to quantify the impacts of the Australian or global SBT fishery on the ecosystem.
44There are concerns about the impacts of fishing for SBT on other species including threatened, endangered and protected species such as sharks and seabirds (e.g. albatross). However, the vast majority of fishing within the Australian SBT fishery is done by purse seining, which is a very selective form of fishing. Both fishers’ logbooks and data collected by independent observers on‑board purse seine vessels suggest that very little bycatch is taken during purse seine operations and interactions with threatened, endangered and protected species are rare.
45By contrast, long lining (which is a much smaller sector within the Australian fishery) is a relatively non‑selective and passive form of fishing that interacts with a wide range of species including sharks and seabirds. There is a considerable amount of overlap in the preferred waters of SBT and threatened species of seabirds such as albatross.
...
48In summary, there is no doubt that both the Australian and global SBT fisheries have altered the food web through the removal of SBT. However, the key question is whether or not the Australian SBT Fishery threatens the ecosystem. There is very little information available upon which to assess food web impacts from either the Australian or global fishery for SBT and I therefore cannot draw a conclusion as far as these are concerned. However, it is clear that operations in the Australian SBT fishery cause little, if any, damage to the physical habitat and, although there are some concerns as to bycatch, this is particularly associated with long lining (which is undertaken by a relatively small sector of the Australian fishery).
55. Mr Hurry has academic qualifications in aquaculture and presently holds the position of General Manager, Fisheries and Aquaculture, in the Commonwealth DAFF. He has had extensive experience in the fields of aquaculture and fisheries, particularly in relation to various international organisations. Of particular relevance is the fact that since 2001 he has been Australian Commissioner to the CCSBT.
56. My Hurry prepared an affidavit dated 26 August 2005. Mr Hurry’s evidence deals in detail with Australia’s involvement in the CCSBT and its associated committees and in particular emphasises the leading role that Australia has taken in the international management of the global SBT fishery. Of considerable concern to him is the suggestion that Australia reduce its catch of SBT to zero on the assumption that this would thereby effectively contribute to stock recovery. This is not an approach the witness favours. His view (as expressed at paragraph 82 of his affidavit) is that the most pragmatic and effective approach will be for Australia to continue to take SBT in a responsible manner and to continue to argue for responsible global management of SBT. He explains his position at paragraph 83 and 85 thus:
83The reasons for this are as follows. Australia currently has a strong reputation as the most balanced voice on the Commission. However, if we were to cease taking SBT in the current circumstances (that is, when other countries are likely to continue taking SBT), the likely political consequences would include a significant weakening of our position as a lead player in the Commission and, as a result, a diminishing of the Commissions’ effectiveness overall. If Australia was no longer in a position to take a leadership role in the Commission, particularly in arguing for responsible management of SBT, in my view none of the other members would presently be able to step into that role.
. . .
85Based on my involvement with the Commission, and with other regional fisheries management organisations, I consider it possible that closing the Australian fishery would lead other members of the CCSBT to perceive a change in Australia’s focus from responsible fishery management, balanced with conservation of SBT, to conservation only. In my view, this may discourage members (and other countries which take SBT) from engaging with Australia and potentially with the Commission, because they would perceive it as being focussed on stopping, rather than managing, fishing.
57. Mr McNee is currently Assistant Secretary, Marine Environment Branch, at the Commonwealth Department of Environment and Heritage, a position he has held since 18 July 2005. Prior to that he had been, since August 2000, Senior Manager for the Tuna and Billfish Fisheries in AFMA where his primary duties involved the provision of high‑level advice to AFMA senior management, the AFMA Board, DAFF and the Commonwealth Minister for Fisheries, Forestry and Conservation on the management of Commonwealth tuna and billfish fisheries with overall responsibility for the management, inter alia, of the SBT fishery. In 2002 he was heavily involved in the development of the AFMA Assessment Report submitted in September 2002 and in the development of the comprehensive amendments to the SBT Fishery Management Plan 1995. He prepared an affidavit dated 20 August 2005.
58. Mr McNee’s evidence deals with the role of AFMA and its responsibilities under the SBT Fishery Management Plan. He too canvasses the prospect of AFMA setting a lower national catch allocation than that determined by the CCSBT as to which he says at paragraphs 109 to 111 of his affidavit:
109Under the FM Act and the SBTF Management Plant, AFMA does have the power to set a lower national catch allocation than that determined by the CCSBT. However, the FM Act and the SBTF Management Plan articulate the central role of the CCSBT and the importance of giving effect to Australia’s obligations under international agreements (including implementing CCSBT decisions). Australia is a member of the CCSBT so that it can participate in effective global management of a global stock. Therefore, AFMA perceives part of its role as implementing the decisions of the CCSBT as rapidly and efficiently as possible, and it has done so to date.
110The test for AFMA is always whether taking such approaches (that is, maintaining the status quo or adopting the CCSBT‑set national catch allocation) is consistent with its objectives under the FM Act and the SBTF Management Plan. In my view, it is consistent, and this can be most clearly seen in relation to Clause 5A (which requires implementation of international obligations) and Clause 4A (which requires management to be consistent with the principles of ecologically sustainable development and the precautionary principle). In signing the Conventions, which recognises that SBT is a global stock taken by many countries and which has similar objectives to the FM Act, Australia has recognised the CCSBT as pivotal in achieving the recovery of the stock and in meeting AFMA’s legislative objectives in managing the Australian SBT fishery. In other words, AFMA will fulfil its objectives in the long term by supporting Australia’s active participation in that forum.
111Taking an alternative approach, if AFMA considered that it should set a lower national catch allocation than that taken by the CCSBT (or voluntarily agreed to by the Australian government), I consider that this would lower the pressure and momentum on other members of the CCSBT in implementing a cohesive recovery strategy for several reasons.
CONCLUSIONS
59. The highly technical nature of the evidence, both written and oral, that is before the Tribunal has demonstrated that the legislative policy behind a provision such as s 303FN(10A) is well justified. It is obvious that the Minister (in the first instance) and, on review, the Tribunal, are required to embark upon a decision‑making process in a field of endeavour which is highly specialised and equally highly uncertain. The evidence and opinions of skilled scientists and others intimately involved in the particular field is critical to the decision the Minister or the Tribunal is required to make. The Tribunal process has provided an opportunity to consider the outcomes expressed in the AFMA strategic assessment. It is appropriate that the intention of s 303FN(10A) be given effect to and that the Tribunal rely primarily on the outcomes of the assessment.
60. Having regard to the outcomes of the AFMA assessment and to the other matters raised in the course of the hearing of the application, the Tribunal is satisfied as to each of the matters referred to in s 303FN(3) of the EPBC Act and having regard to the matters referred to in s 303FN(4), the Tribunal is of the view that the Minister’s decision declaring fishing operations in the SBT fishery to be an approved wildlife trade operation pursuant to s 303FN of the Act should be affirmed.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: Miss Sacha Keady
AssociateDate/s of Hearing 23 and 26-29 September 2005 and 11 November 2005
Date of Decision 3 April 2006
Counsel for the Applicant Mr P. Larkin
Mr J. Johnson
Solicitor for the Applicant Environmental Defenders Office
Counsel for the Respondent Mr P. Hanks QC
Ms J. Jagot
Solicitor for the Respondent Australian Government Solicitor
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