Administrative Appeals Tribunal
Re Nature Conservation Council of NSW Inc and Minister for Environment and Water Resources
Commonwealth of Australia
(2007) 98 ALD 334
The Commonwealth Minister for the Environment and Water Resources declared an Ocean Trap and Line Fishery to be an approved wildlife trade operation. This permitted the export of sea life from the fishery. The Nature Conservation Council claimed that the fishery was detrimental to the survival of east coast grey nurse sharks. The Tribunal found that the operation would not be detrimental to the survival of the east coast grey nurse population.
Opinion of the Court:
- Grey nurse sharks are endangered and protected. Unfortunately, they are occasionally caught accidentally by both commercial and recreational fishers. Sometimes the commercial fishers are operating in the New South Wales Ocean Trap and Line Fishery (OTLF).
- The OTLF has been declared by the Commonwealth Minister for Environment and Water Resources to be an approved wildlife trade operation. This permits the export of sea life taken in the fishery such as spanner crabs. The Minister could only make the declaration if he was satisfied that the operation would “not be detrimental to... the survival of a taxon to which the operation relates” and that it meets other environmental objects.
- The Nature Conservation Council of New South Wales Inc has applied to the Tribunal for review of the Minister’s decision. The Conservation Council says that the approved wildlife trade operation is detrimental to the survival of the east coast population of grey nurse sharks, which is a taxon to which the operation relates. It also says that the other environmental objects are not met. We have decided that grey nurse sharks are a taxon to which the population relates, but we are satisfied that the operation is not detrimental to their survival. We are also satisfied that the other environmental objects are met. We accordingly affirm the decision of the Minister. Our detailed reasons follow.
- Grey nurse sharks are found along the coasts of North and South America, South Africa and Australia. There are two populations in Australia, on the east and west coasts. Grey nurse sharks live in coastal waters. There is no migration between separated populations.
- The sharks prefer to live near rocky reefs, underwater caves and sand or boulder-filled gutters along the coast. They migrate north and south with changes of season but they rarely venture into waters deeper than two hundred metres. They tend to form aggregations of five or more sharks in small areas. They are generally passive and do not attack humans unless provoked. This was not, however, their reputation in the middle years of the twentieth century when they had an undeserved reputation as killers. That may have been because they resemble archetypal man-eating sharks, with their teeth constantly displayed.
- The physical features and reputation of grey nurse sharks have not helped their survival. For many years last century they were hunted by commercial and recreational fishers. At the time little was known about the species. As they became better known and understood it emerged that their numbers had been substantially reduced. Steps were taken to protect them. However, this was not until the population off the east coast of Australia was already endangered.
- Grey nurse sharks have a number of characteristics which predispose them to population decline. First, they inhabit areas where both commercial and recreational fishing takes place. Secondly, they swallow their prey whole using their teeth to stab and hold rather than chew. This facilitates the ingestion of hooks. Thirdly, they generally inhabit shallow and easily accessible areas. Fourthly, and very importantly, they have a fragile reproduction process. For females, reproduction does not begin until around 12 years of age and they do not live longer than 35 years. Females only give birth to two pups at a time as the result of a curious process of cannibalism between pups in each of their two uteri. They only reproduce every two years. As a result, mature females produce, on average, one pup per year. The ratios between the sexes are equal. Other sea creatures produce many pups each year.
- There is evidence before us that the total population of grey nurse sharks off the east coast of Australia may now be as low as 500 with an upper estimate of 800. Other evidence, which criticises the methods used in making those calculations, but does not seek to make alternative estimates, suggests that the population is higher, even significantly higher. However, it is unlikely that the population is more than a maximum of about 3,000, with a more realistic possibility that there may be up to 1,500. On any view the population is critically endangered.
- The expert evidence also predicts that the deaths from non-natural causes of two or more female sharks per year will result in a reduction of the population. In these circumstances, extinction is inevitable. This is so wherever in the range 500 to 3,000 the actual population is found to be. However, the larger the population the longer it will take to extinction.
- The problem is that there are presently more than two non-natural deaths of female sharks each year. There is an average of more than four known deaths each year in the OTLF. Known deaths from recreational fishing and from fishing in other fisheries bring the average annual total to twelve. None of the deaths in the OTLF are targeted. They are incidental, yet they continue to occur.
- In a four and a half year period between 2002 and 2007 there were 52 known grey nurse shark fatalities. This leads to the average of twelve per year. Forty-four were female and eight were male. The OTLF was responsible for eighteen female fatalities and one male fatality. Recreational fishing, including spearfishing, was responsible for seventeen female and five male fatalities. The remaining deaths were attributable to shark netting to protect beaches (7) and fisheries other than the OTLF (4). Three deaths (all female) have occurred in the OTLF in the last twelve months. These figures are bound to be understated.
- The above observations are largely drawn from the evidence of Dr Nicholas Otway who is a Senior Research Scientist at the New South Wales Department of Primary Industries. He has had a particular interest in grey nurse sharks for many years and advises the Department with respect to them. He has published papers relating to the size of the population of grey nurse sharks and the measures desirable for their conservation. Dr Otway gave evidence in these proceedings at the request of the Minister. Dr Victor Peddemors is a Visiting Research Fellow at Macquarie University. He has particular experience of the grey nurse shark population in South Africa. He gave evidence at the request of the Conservation Council. He agreed generally with Dr Otway’s evidence about the biology and population of grey nurse sharks.
- There are two aspects of Dr Otway’s research which are particularly relevant to the matters before us. One is research relating to the habits of grey nurse sharks. The other is research relating to the population of grey nurse sharks and the threat to their survival.
- So far as the habits of grey nurse sharks are concerned, Dr Otway has particularly researched aggregation sites along the New South Wales coast. Although grey nurse sharks are known to have travelled further afield, they are generally found along the coast of New South Wales between the Victorian and Queensland borders. Because they migrate north in the winter and south in the summer, the location of the greater concentration moves accordingly.
- The propensity of grey nurse sharks to congregate near reefs, caves and gutters has lead to known and suspected aggregation sites being subject to specific study. Dr Otway has been very involved in this work. Ten sites are recognised by the NSW Department as “critical habitat sites” under theFisheries Management Act 1994 (NSW).
- The Conservation Council has identified sixteen sites, including sub-sites, which it says are critical aggregation sites for grey nurse sharks and which require greater protection. It also seeks greater protection for two Commonwealth sites further offshore. The total number of sites is, accordingly, eighteen. In addition, it asks for non-offset circle hooks (hooks that lie in the same plane) to be mandatory in all hook and line fisheries and for the use of wire traces as fishing line to be banned in waters beyond three nautical miles. They are already banned inside this limit.
- These matters were the focus of the evidence. That is understandable as a matter of the presentation of the underlying claim in a convenient manner. However, we must constantly remind ourselves that our task is not to determine whether more or less protection of grey nurse sharks is a desirable object in itself. Our task is to decide whether the operations of the OTLF are detrimental to the survival of grey nurse sharks or inconsistent with other environmental objects. If they are, we must decide whether we can impose conditions which, if implemented, will introduce sufficient change so that the operations of the OTLF will no longer be detrimental to the survival of the sharks. It is only by this process that we can address the claim for an increase in protection.
- The sites and sub-sites claimed by the Conservation Council are as follows (source: annexure NMO-6 to the statement of Nicholas Otway affirmed on 13 March 2007):
1(a) Julian Rocks (off Byron Bay);
1(b) Spot X (off Byron Bay);
2 Manta Arch (off South Solitary Island);
3 The Steps/Anemone Bay (off North Solitary Island);
4 The E Gutters (off North West Solitary Island);
5 Fish Rock and Green Island (off South West Rocks);
6 Mermaid Reef (off Crowdy Head);
7 Latitude Rock and Spot A/Latitude Reef (off Forster);
8 The Pinnacle (off Forster);
9(a) Big Seal Rocks and Little Seal Rocks;
9(b) White Top Rocks (Seal Rocks);
9(c) Inner and Outer Edith Breaker (Seal Rocks);
9(d) Skeleton Rocks (Seal Rocks);
9(e) Sawtooth Rocks (Seal Rocks);
10 Little Broughton Island (off Port Stephens);
11 Foggy’s Cave (off Terrigal);
12 Magic Point (off Maroubra);
13 Long Reef (off Sydney);
14 Bass Point (off Shellharbour);
15 Tollgate Islands (off Bateman’s Bay);
16 Montague Island (off Narooma);
17 Cod Grounds (off Laurieton) (Commonwealth site); and
18 Pimpernel Rock (off Brooms Head) (Commonwealth site).
- The Environment Protection and Biodiversity Conservation Act 1999 (Cth) is an Act of the Commonwealth Parliament. Among its objects (s 3) are:
(a) to provide for the protection of the environment...;
(b) to promote ecologically sustainable development...;
(c) to promote the conservation of biodiversity; and
(e) to assist in the co-operative implementation of Australia’s international environmental responsibilities.
- A brief examination of the structure of the Act will assist in understanding its object and purpose. The Act is divided into eight chapters. They are:
Chapter 1 Preliminary;
Chapter 2 Protecting the environment;
Chapter 3 Bilateral agreements;
Chapter 4 Environmental assessments and approvals;
Chapter 5 Conservation of biodiversity and heritage;
Chapter 6 Administration;
Chapter 7 Miscellaneous; and
Chapter 8 Definitions.
- Chapter 5 (Conservation of biodiversity and heritage) is the longest chapter. It is divided into five parts:
Part 12 Identifying and monitoring biodiversity and making bioregional plans;
Part 13 Species and communities;
Part 13A International movement of wildlife specimens;
Part 14 Conservation agreements; and
Part 15 Protected areas.
- Part 13 provides for the listing of threatened species in various categories such as “critically endangered”, “endangered” and “vulnerable”. It also provides for the management of listed species through prohibitions and permits. The population of grey nurse sharks off the east coast of Australia is listed as critically endangered. It is protected by both Commonwealth and New South Wales legislation.
- Part 13A is headed “International movement of wildlife specimens”. It contains six divisions:
Division 1 Introduction;
Division 2 CITES species;
Division 3 Exports of regulated native specimens;
Division 4 Imports of regulated live specimens;
Division 5 Concepts relating to permit criteria; and
Division 6 Miscellaneous
- Division 5 has two subdivisions:
Subdivision A Non-commercial purpose exports and imports; and
Subdivision B Commercial purpose exports and imports
Commercial purpose exports
- This case relates primarily to Subdivision B of Division 5 of Part 13A which suggests that it is concerned with permits for commercial export or import of wildlife specimens. It is not, however, concerned with export or import of grey nurse sharks, which are protected. It may be about export or import of other specimens, though, as will appear, that is not readily apparent.
- The sea life off the east coast of Australia comprises native specimens. They will be “regulated native specimens” unless they are included in a list of exempt native specimens established by an instrument published in the Commonwealth Government Gazette (ss 303DA, 303DB). There is a relevant listing in the Gazette. It relates to the OTLF. The listing operates on specimens “taken lawfully” that “are covered by the declaration of an approved Wildlife Trade Operation under s 303FN of the EPBC Act in relation to the fishery”. Such specimens are accordingly not “regulated native specimens”.
- It is an offence to export a regulated native specimen (s 303DD(1)). However, exporting “a specimen that was taken in accordance with” an approved operation appears to be authorised (s 303FN(1)). This is because the sub paras provide that it is an export in accordance with the approved operation if the specimen was taken in accordance with the approved operation. Such specimens will not be regulated native specimens for the reasons given above.
- There is a second basis for avoiding a contravention of s 303DD(1). Section 303DD(2) provides that subsection (1) does not apply where specimens are exported pursuant to a permit given under s 303DG. Section 303DG requires the Minister to be satisfied, relevantly, that the specimen does not belong to a threatened species and “would be an eligible commercial purpose export (within the meaning of s 303FJ)” (s 303DG(4)(e)(ii)). A specimen is an eligible commercial purpose export where “the export of the specimen would be an export in accordance with an approved wildlife trade operation (section 303FN)” (s 303FJ(d)).
- The background to this case is the exporting of specimens from the OTLF. The principal export is spanner crabs. However, the operation which needs to be approved to make exports lawful is not an export operation as such; nor is it an operation associated solely or mainly with the goods to be exported. To understand why this is so it is necessary to address the provisions of s 303FN(1) which provide that export is “in accordance with an approved wildlife trade operation if the specimen is... a specimen that was taken in accordance with a wildlife trade operation” declared under s 303FN(2). Section 303FN(2) authorises the Minister and, upon review, this Tribunal, to “declare that a specified wildlife trade operation is an approved wildlife trade operation”.
Declaration of an approved wildlife trade operation
- It is important to understand what a wildlife trade operation is, and more importantly, what is the relevant wildlife trade operation in this case. By s 303FN(10) a wildlife trade operation, relevantly to the present case, is “an operation for the taking of specimens and... the operation is a commercial fishery”. For present purposes the operation is the OTLF. It is the fishery itself and not export operations related to the fishing. The OTLF is an extensive fishery regulated by the New South Wales Government in which fish and other sea life are taken off the coast of New South Wales.
- The Declaration of the approved operation was made by the Minister on 27 July 2006. It is as follows (emphasis added):
I, IAN CAMPBELL, Minister for the Environment and Heritage, have considered in accordance with section 303FN of the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act) the application from the New South Wales Department of Primary Industries, public comments on the proposal as required under section 303FR, and advice on the ecological sustainability of the operation. I am satisfied on those matters specified in section 303FN of the EPBC Act. I hereby declare the operations for the harvesting of specimens that are, or are derived from, fish or invertebrates taken in the New South Wales Ocean Trap and Line Fishery, as defined in Schedule 1 of the New South Wales Fisheries Management Act 1994, to be an approved Wildlife Trade Operation, in accordance with section 303FN (2) and (10)(d), for the purposes of the EPBC Act.
Unless amended or revoked, this declaration:
(a) is valid until 14 December 2007 and;
(b) is subject to the conditions applied under section 303FT specified in the Schedule.
- The conditions set out in the Schedule are as follows:
ADDITIONAL PROVISIONS (section 303FT)
Relating to the harvesting of fish specimens that are, or are derived from, fish or invertebrates taken in the OTLF.
- Operation of the fishery will be carried out in accordance with the restricted entry management regime in force under the NSW Fisheries Management Act 1994.
- The NSW Department of Primary Industries (DPI) to advise the Department of the Environment and Heritage (DEH) of any material change to the OTLF management arrangements that could negatively affect the assessment of the fishery against the criteria of the Environment Protection and Biodiversity Conservation Act 1999 (EPBD Act), within three months of that change being made.
- A report to be produced and presented to DEH by 16 November 2007, and to include:
(a) information sufficient to allow assessment of the progress of NSW DPI in implementing the conditions and recommendations made; and
(b) the status of the OTLF performance indicators compared to the trigger points.
- The Fishery Management Strategy (FMS) for the NSW OTLF to be finalised and approved by end of November 2006.
- NSW DPI to develop and implement, within 12 months of the approval of the FMS:
(a) further measures that provide an effective interim cap on active effort in the OTLF; and
(b) a strategy, including effort targets, milestones and associated trigger points, for achieving an ecologically sustainable level of fishing effort for each sector of the fishery.
6. NSW DPI to develop and implement, by 16 November 2007:
(a) fishery closures of appropriate area for grey nurse sharks as required under the Preferred Strategy Report; and
(b) a targeted monitoring program to help evaluate the effectiveness of the grey nurse shark fishery closures.
- The Fishery Management Strategy was duly finalised and approved in November 2006.
The application for review
- The Conservation Council has applied to the Tribunal for review of the decision of the Minister to make the declaration. It does not primarily seek a decision refusing any declaration but seeks a variation of the conditions imposed under s 303FT(4)(c). It particularly seeks the imposition of fishing closures and other fishing restrictions which are more extensive than those which can be anticipated pursuant to condition 6(a).
- Before evaluating these proposals it is necessary to address a number of preliminary matters relating to the legislative scheme.
The relevant legislative provisions
- It should now be apparent that it is the making of a declaration under s 303FN and not the approval of any export activities with which this matter is concerned.
- Section 303FN(3) requires the Minister to be satisfied of a number of matters before an operation can be approved:
303FN(3) The Minister must not declare an operation under subsection (2) unless the Minister is satisfied 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 are set out in s 303BA(1):
303BA(1) The objects of this Part are as follows:
(a) to ensure that Australia complies with its obligations under CITES [Convention on International Trade in Endangered Species] 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 purpose of export is managed in an ecologically sustainable way; and
(h) to ensure the precautionary principle is taken into account in making decisions relating to the utilisation of wildlife.
- The following provisions relating to the precautionary principle are contained in s 391:
391 Minister must consider precautionary principle in making decisions
Taking account of precautionary principle
(1) The Minister must take account of the precautionary principle in making a decision listed in the table in subsection (3), to the extent he or she can do so consistently with the other provisions of this Act.
(2) 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.
Both declarations under s 303FN and permits under s 303DG are listed in the table.
- Section 303FN(4) and (5) are also relevant:
(4) In deciding whether to declare an operation under subsection (2), the Minister must have regard to:
(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).
(5) In deciding whether to declare an operation under subsection (2), the Minister must have regard to:
(a) whether legislation relating to the protection, conservation or management of the specimens to which the operation relates is in force in the State or Territory concerned; and
(b) whether the legislation applies throughout the State or Territory concerned; and
(c) whether, in the opinion of the Minister, the legislation is effective.
Detriment to survival (s 303FN(3)(b)(i))
- The primary focus in this matter has been upon the requirement for the Minister to be satisfied that “the operation will not be detrimental to... the survival of a taxon to which the operation relates” (s 303FN(3)(b)(i)). Taxon “means any taxonomic category (for example, a species or a genus), and includes a particular population” (s 528). The taxon in question is the population of grey nurse sharks off the east coast of Australia.
Other environmental objects (ss 303FN(3)(a), (b)(ii) and (ba))
- Our reasons focus on whether or not the operations of the OTLF are detrimental to the survival of grey nurse sharks (s 303FN(3)(b)(i)). However, we must, of course, be satisfied of all the matters in s 303FN(3). Sub para (b)(i) concerns detriment to the survival of a taxon and sub para (b)(ii) concerns detriment to the conservation status of a taxon. Neither “survival” nor “conservation status” is defined. The Conservation Council submits that, in the context of the section, detriment to conservation status involves a lower threshold. It gives as examples an operation which reduces the population in a manner which is ecologically significant, or prevents the population from recovering to a level at which it is no longer threatened.
- The Minister says that “conservation status” refers to one of the labels in s 178 of the Act, such as “critically endangered”, “endangered” and “vulnerable”. This approach appears to have been taken by Preston CJ in Bentley v BGP Properties Pty Limited  NSWLEC 34 at - . On this interpretation, something would be detrimental to conservation status if it caused an eligible species to be listed at a higher level of threat or if an unlisted species became listed.
- On the facts of this case, detriments to survival and conservation status will go hand in hand. We will primarily address survival but the facts will not yield to a nice analysis which finds detriment to conservation status but not survival, however detriment to conservation status is to be understood.
- Section 303FN(3)(a) requires us to be satisfied that “the operation is consistent with the objects of [Part 13A]”. The Conservation Council submits that the operation is presently inconsistent with each of the objects in s 303BA(1).
- These objects set out general obligations. The focus of this case has been on the particular issues I have described. There is, however, a wealth of material before us in the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) and in the other documentary evidence which shows the activities of the Commonwealth and New South Wales governments and their agencies with respect to environmental aspects of fishing. In addition, we have been referred to the relevant state legislation. We are comfortably satisfied that the operation is generally consistent with the objects set out in Part 13A of the Act. If it is not, that will only be at the level of particularity which the parties have addressed in the proceedings. Were we to find that the operation was detrimental to the survival of grey nurse sharks that might lead to an adverse conclusion under s 303FN(3)(a). However, in the absence of such a conclusion, we see no basis for concluding that s 303FN(3)(a) is not satisfied.
- Section 303FN(3)(ba) requires us to be satisfied that “the operation will not be likely to threaten any relevant ecosystem including (but not limited to) any habitat or biodiversity”. The Conservation Council says that the OTLF is likely to cause loss of biodiversity following depletion or removal of grey nurse sharks and threaten a habitat (the sharks’ biophysical medium) through reduction in the food available to grey nurse sharks.
- The evidence before us relates almost exclusively to grey nurse sharks. Accordingly, our state of satisfaction regarding the survival of grey nurse sharks (s 303FN(3)(b)(i)) is what we primarily need to address. If we find that the operation is not detrimental to the survival of the sharks, it will follow that it is not, for example, likely to threaten any ecosystem or habitat or biodiversity. If we are not satisfied that the operation is detrimental to the survival of grey nurse sharks the evidence will be highly likely to leave us unsatisfied on the broader issues. We add that this argument was really added by the Conservation Council as a makeweight point which the evidence and submissions do not really address.
Discretionary considerations (ss 303FN(4) and (5))
- In addition to relying on the mandatory threshold tests contained in s 303FN(3), the Conservation Council also relies upon the obligation to have regard to the matters identified in ss 303FN(4) and (5). These address more general conditions relating to the effectiveness of the legislation and management arrangements. Both the legislation and management arrangements are dealt with individually in the reasons. We are comfortably satisfied that both are effective in terms of the matters specified in the subsections such as the impact of the operation on ecosystems and the protection, conservation and management of specimens to which the operation relates. As with s 303FN(3)(a) and (ba), the real issue in this case relates to detriment to grey nurse sharks. Were we not satisfied that there was no detrimental effect, we might also find that an adverse conclusion under ss 303FN(4) and (5) was appropriate. However, in the absence of such a finding, our comfortable satisfaction will remain.
Present management and proposals for change can be taken into account
- Section 303FN(4)(b) requires the Minister, in deciding whether to make a declaration, to “have regard to... the effectiveness of the management arrangements for the operation (including monitoring procedures)”. Having this in mind, the NSW Department of Primary Industries, in seeking the declaration, put before the Minister material showing how the OTLF was managed. This material makes particular reference to grey nurse sharks. The conditions imposed by the Minister drew upon and partly extended the Department’s proposals. It was on the faith of those proposals and the conditions he imposed that the Minister was satisfied under s 303FN(3), although he might not have been satisfied without them. It is the operation, understood in the light of the effectiveness of its management, which must be examined under s 303FN(3)(b). The test must admit of some scope for proposed improvements being taken into account against potential detriment to taxa. It was argued that the Minister could only be satisfied if any requirements he considered necessary to his satisfaction were imposed by the declaration. We do not agree. The Minister can be satisfied because of the existence of management policies and practices, including proposals for change on the part of the authority primarily controlling the operation. By s 303FT(7) the Minister may vary a declaration by imposing one or more conditions (or further conditions) or removing or varying a condition. A condition may relate to reporting or monitoring (s 303FT(8)). This permits the Minister to respond if a proposal that led to his being satisfied is not carried into effect.
- The question which the Tribunal must decide, in reviewing the decision of the Minister, is whether the operation as we find it to be, taking into account the NSW Department’s present policies and practices including proposals for change, together with the conditions imposed by the Minister, permit us to be satisfied under s 303FN(3).
Grey nurse sharks are “a taxon to which the operation relates”
- A question of statutory construction arises as to whether grey nurse sharks are “a taxon to which the operation relates” (s 303FN(3)(b)(ii)). There is no fishing in the OTLF for grey nurse sharks. They are only killed accidentally. Nevertheless, fishing with hooks and lines is a potential hazard for the sharks. Is this enough for the sharks to be a taxon to which the OTLF relates?
- Words such as “relate” are generally given a wide construction. In a different context (HP Mercantile v Commissioner of Taxation  FCAFC 126; (2005) 143 FCR 553 at 563) Hill J, with whom Stone and Allsop JJ agreed, said this:
It was common ground that the words ‘relates to’ are wide words signifying some connection between two subject matters. The connection or association signified by the words may be direct or indirect, substantial or real. It must be relevant and usually a remote connection would not suffice. The sufficiency of the connection or association will be a matter for judgment which will depend, among other things upon the subject matter of the enquiry, the legislative history, and the facts of the case. Put simply, the degree of relationship implied by the necessity to find a relationship will depend upon the context in which the words are found.
- It might ordinarily be said that, given the width of the words, the operations of a commercial fishery relate to fish caught in the fishery, even when that is accidental. However, the words must be considered in their context in accordance with the object and purpose of the Act.
- Section 303FO provides for the declaration of approved wildlife trade management plans. The section contains a subsection similar to s 303FN(3) requiring the Minister to be satisfied of a number of matters before declaring that a plan is approved. One of those matters is that:
(c) the plan includes management controls directed towards ensuring that the impacts of the activities covered by the plan on:
(i) a taxon to which the plan relates;
(ii) any taxa that may be affected by activities covered by the plan; and
(iii) any relevant ecosystem (for example, impacts on habitat or biodiversity);
are ecologically sustainable.
This requirement may distinguish taxa “to which the plan relates” from taxa “that may be affected by activities covered by the plan”.
- Phrases using the word “relates” appear many times in the Act. They appear at least fifteen times in Part 13A. The most frequent use of the phrase is in ss 303FN and 303FO. Section 303FN(3)(c) applies “if the operation relates to the taking of live specimens”. Section 303FN(5)(a) applies to “the specimens to which the operation relates”. Section 303FO applies to “the species to which the plan relates” (para (3)(b)), “a taxon to which the plan relates” (paras (3)(c)(i) and (3)(d)), whenever “the plan relates to the taking of live specimens” (para (3)(f)) and “the specimens to which the plan relates” (para (4)(a)).
- There is no definition of “relates” in Part 13A which informs its use in ss 303FN(3)(b) or 303FO(3)(c). The only other informative use of the phrase in the Act is in s 287(2)(f) which refers to “species (other than those to which the [wildlife conservation] plan relates) that will be affected by the plan’s implementation”. This appears to contemplate that there will be species “affected by the plan’s implementation” which are not species “to which the plan relates”.
- Notwithstanding that some uses of the phrase “relates to” in the legislation may support a narrower reading, but bearing in mind the usual width of the phrase, and because there seems no reason why an operation may not both relate to and affect a taxon, we conclude that the east coast population of grey nurse sharks is a taxon to which the operation relates. Therefore, one matter on which the Minister must be satisfied in declaring the OTLF to be an approved wildlife trade operation is that the OTLF will not be detrimental to the survival of the population.
Matters which conditions may address
- The power to impose conditions is conferred by s 303FT(4):
303FT(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, circumstance or condition.
We will primarily refer to conditions although a similar result might be achieved by addressing “circumstances” required to “exist”.
- Declarations under s 303FN may be made on the Minister’s own initiative or in response to a written application (s 303FT(2)). The declaration under review was made in response to an application by the New South Wales Minister for Primary Industries.
- Although the power to impose conditions is not subject to any express restrictions, so that it might be regarded as a wide power, it must be remembered that the conditions need to address the subject of the declaration and, where that is a response to an application, the subject of the application. A condition which attempted to fundamentally change the operation, such as a condition banning most fishing, might not be a condition at all. If the Minister was of the view that he could only be satisfied if most fishing was banned, the more appropriate response would seem to be to refuse the application. It must be remembered that the operation under consideration will not generally be an operation for which he is responsible. Where, as here, the operation is a state operation, it is the relevant state which determines how the operation is managed. It is the operation as managed by the state that is to be considered for a declaration, not a different operation brought about by the imposition of conditions.
- There is a particular matter relating to the legitimate subjects for conditions which is important to this case. The OTLF regulates commercial fishing. However, the Conservation Council seeks the imposition of conditions which affect the activities of fishing outside the OTLF and, particularly, recreational fishing including spear fishing. The question is whether the Minister is competent to impose these conditions.
- The task of the decision-maker when considering declaring an approved wildlife trade operation does involve a general discretion. Section 303FN(2) uses the word “may”. However, the discretion must be exercised in accordance with the subject matter, scope and purpose of the Act. Section 303FN sets out a number of tests relating to the operation and its effect. All of the paragraphs of s 303FN(3) address the operation. For example, the decision-maker must be satisfied that the operation will not detrimentally effect the survival of a taxon. Nothing is said about activities other than those of the operation. Suppose the noise of powerboats, or of shipping, or the noise emitted from a vehicle tunnel on the sea floor, was detrimental to a species caught in the OTLF. Could a condition be imposed that boating and shipping must be banned or restricted or that the tunnel must be closed? We think not. Recreational fishing is not in any different category. Because it is not part of the operation, the statutory test does not address the question whether it is detrimental to the survival of grey nurse sharks or contributes to any detriment. Section 303FN(3), (4) and (5) are linked to the operation. The only issue relating to grey nurse sharks is whether the operation has a detrimental effect on them. If that is so, the imposition of a condition is authorised. It is to be remembered that the only relationship between grey nurse sharks and the OTLF is that the sharks are sometimes accidentally caught by persons fishing in the OTLF. That they may also be injured by other means does not seem to us to be a matter to be addressed or remedied when a declaration is being considered.
- There may be some basis for wider consideration under s 303FN(5) which does not address the impact of the operation as such, but, rather, the effectiveness of “legislation relating to the protection, conservation or management of the specimens to which the operation relates”. However, we do not think this broader power warrants consideration of the narrow issue of regulating other fishing which may be detrimental to a particular species such as the grey nurse shark. In any event, we have little evidence to address this much wider issue of the effect of non-OTLF and recreational fishing on grey nurse sharks. For example, the parties did not address how this other fishing is regulated. We will return to s 303FN(5), but, for the present, we do not find that it would support conditions operating outside the OTLF.
- The conditions authorised by s 303FT must be conditions which advance the purpose or object of the Act. Since we find that s 303FN is concerned with the effect of OLTF fishing on grey nurse sharks, we conclude that there is no basis for the imposition of conditions that do not relate to that activity.
- Only one of the conditions imposed by the Minister was certain in character. The first condition required the OTLF to operate in accordance with “the restricted entry management regime in force under the New South Wales Fisheries Management Act 1994”. Each of the other conditions required activity with uncertain content. However, as we have already explained, we see no reason why the Minister should not take into account proposals for positive change in management of the OTLF when determining whether to make a declaration under s 303FN.
- The most important of the conditions in this matter, having regard to the way in which the Conservation Council presented its case, is condition 6. This is because their case was almost entirely focused on fishery closures and bans on certain hooks and wire trace lines.
Parties to the application
- During the hearing, the Tribunal received written applications from a number of parties to be joined to these proceedings under s 30(1A) of the AAT Act. The Fishing Party, a political party whose application was opposed on the basis that it has no legal personality (Arnold v Queensland(1987) 73 ALR 607), withdrew its application.
- An application by the State of New South Wales was probably made, in part, as the result of comments made by the Tribunal during the hearing that it may be useful to have that body represented before it. We are satisfied that the interests of the State, in terms of its management of the OTLF and other fisheries, are affected by the decision under review.
- Seven parties representing the interests of recreational fishers also applied to be joined. All of the parties are incorporated, except for the Narooma Port Committee, which is represented by Dr Philip Creagh. It is necessary that each association’s interests (as distinct from its members’ interests) are affected by the decision under review (Re Maunsell and Partners Pty Limited v Export Development Grants Board (1980) 2 ALD 813 at ;Access for All (Hervey Bay) Inc v Hervey Bay City Council  FCA 615 at ). Part of the Conservation Council’s case is that conditions should be imposed on recreational fishers. The Australian Recreational and Sport Fishing Confederation Inc relied on its objects, which include the representation of Australia’s recreational fishers. Although this is not sufficient in itself, we are satisfied that the interests of the association are affected. We are satisfied that the interests of the other recreational fishing parties are also affected. All of the recreational fishing parties were represented by the same solicitors.
- An important reason for acceding to these applications is that only these parties sought to present an alternative opinion as to the population of grey nurse sharks. The original parties relied on the evidence of Dr Otway. It is always useful to have a contradictor where there may be doubt as to an important proposition.
- Although all applicants for joinder made their applications at a late stage, we decided to exercise our discretion in favour of making them parties to the proceedings. Having regard to the evidence and submissions they proposed to put before the Tribunal, we did not consider that their joinder would “unduly impede the expeditious conclusion of the proceedings” (Re Control Investments Pty Limited and Others and Australian Broadcasting Tribunal (No 1) (1980) 3 ALD 74 at 79).
- The State of New South Wales relied upon the respondent’s evidence and made only minor supplementary submissions. The evidence presented on behalf of the recreational fishing parties was confined to the issue of the population of grey nurse sharks. There was no issue about multiplicity of evidence leading to high cost and delay (Re Marine World Victoria Limited and Minister for Arts, Heritage and Environment (1986) 10 ALD 262).The evidence was highly relevant to one of the issues in this case. Administrative decision-making benefits from being well-informed and based on material representing all relevant views.
Evidence of population size
- At the commencement of the hearing, the Conservation Council and the Minister both accepted the evidence of Dr Otway that the east coast population of grey nurse sharks was approximately 500, with an upper 95% confidence value of 800. This was based on the 2004 report by Otway and Burke, Mark-recapture population estimate and movements of grey nurse sharks. The report was commissioned by NSW Fisheries and was not peer-reviewed.
- The mark-recapture study involved tagging 24 sharks at five sites (Tollgate Islands, Little Broughton Island, Fish Rock and South Solitary Island in New South Wales and Flat Rock in Queensland) in winter 2002. Divers then surveyed 44 sites over a two week period in June 2003. Sixteen of the tagged sharks were resighted during this period, out of a total of 313 sharks. These figures were used to calculate a population estimate according to slight variations on the following formula:
N = t * n / R
Where: N = total population estimate;
t = number of tagged sharks (24);
n = number of sharks (tagged and untagged) observed during re-sighting survey (313); and
R = number of tagged sharks observed during re-sighting survey (16).
The formula was modified slightly to account for positive bias. Variances and confidence intervals were then calculated according to probability distributions.
- It can be seen from this calculation that a significant factor driving the population estimate was the high proportion of tagged sharks that were resighted. We are concerned that this calculation may be unreliable. In order to be reliable, the following assumptions must be satisfied:
- The tagged sharks were dispersed throughout the untagged population;
2. All sharks had the same probability of being tagged initially;
3. The resighting sample was a random sample; and
4. The effects of emigration and immigration were negligible.
- Two witnesses gave evidence on behalf of the recreational fishing interests. Their evidence raised doubts about whether the assumptions were satisfied in the mark-recapture study. Dr Julian Pepperell is a biologist who has spent many years researching large oceanic fishes including sharks. Dr Marcus Lincoln-Smith is an aquatic ecologist. He participated in grey nurse shark studies by NSW Fisheries during the 1990’s.
- The first assumption is that tagged sharks disperse throughout the entire population. It follows that the sample sites must be representative of the locations of the entire population. All of Dr Otway’s sampling focused on shallow reef habitats that were accessible to scuba divers. Dr Lincoln-Smith was concerned that a number of potential aggregation sites were not sampled, including sites that could only be accessed by snorkel, sites that were in deeper waters and, particularly, unnamed reefs between Mermaid Reef and Crowdy Head, Grassy Head, sites north of Coffs Harbour, the Banks off Jervis Bay, Charlotte Head and White Top Rock, as well as other sites that he was unwilling to disclose. Dr Pepperell reiterated the concern about deeper sites some three to seven nautical miles offshore where sharks have been sighted historically. For example, from 1960-77, when grey nurse sharks were targeted by game fishing clubs, 93% of captured sharks were caught in these offshore sites. Dr Otway agreed that it was possible that there were sharks in deeper waters that never moved into shallower waters, but considered this unlikely because sharks tagged in shallow waters mixed between shallow and deep waters.
- The second assumption is that all sharks have the same probability of being tagged initially. Dr Lincoln-Smith noted that 22 of the 24 tagged sharks (91.6%) were adults, which was a significantly higher proportion than was found in the resighting sample (42.5%). This may indicate some bias in the survey method.
- The third assumption is that the resighting sample is random. Both experts queried this assumption on the basis of homing. Although sharks travel large distances, they also often return to the same site. Two of the tagged sharks were detected at the same location during tagging and resighting. Dr Otway did not agree that there was any evidence of homing. He accepted that homing would affect the validity of the estimate.
- Other problems that were not accounted for in relation to the third assumption were biases of volunteer divers and the potential for double counting, given that the report indicated that some numbered tags were obscured by algae. Dr Otway said that there was no divergence in results between volunteer divers and divers from the Department of Primary Industries that dived with each group. However, although over half of the sharks (176) were sighted by spear fishers, this group sighted only one tagged shark. The other 18 tagged sharks were sighted among the other 137 sharks observed. This may indicate some bias in the results. Dr Otway explained this difference on the basis that the spear fishers were surveying the southern extent of the region during a period when sharks were on their northward migration.
- The fourth assumption is that the effects of emigration and immigration are negligible. That is, the population is essentially closed. One of the tagged sharks was found at Yeppoon in Queensland, some 680 km north of the survey boundary. The experts considered that this was either an outlier or that it showed that sharks travel much further than expected. Dr Lincoln-Smith said that the latter conclusion was supported by his brief research in Queensland in 2004. If this is true, it will impact on the validity of all of the assumptions.
- The experts raised other concerns with the mark-recapture estimate. An unpublished repeat study was conducted by Otway and Burke in August 2003. One hundred and sixty-two sharks were sighted over 27 sites, with no tagged sharks. Dr Otway explained that there was rough weather and poor visibility during this period. It is impossible to calculate a mark-recapture estimate when no tagged sharks are resighted, so the results of this study were not published. Again, in September/October 2004, Dr Lincoln-Smith led a preliminary two week study between Crowdy Head and Moreton Island and found 103 sharks, only one of which was tagged. These two unreported studies suggest that Dr Otway’s mark-recapture study, which involved such a high proportion of resighted tagged sharks, was unreliable.
- The total number of sharks observed in the resighting survey (313) was comparable with diver surveys led by Dr Otway in June 1999 (207) and June 2000 (292). As noted by the other experts, this suggests an increase in population over time, although there are insufficient data for it to be statistically significant. The 1999 and 2000 surveys involved only a 15 minute dive at each of 50 to 60 sites. Sharks were present at half of those sites. We consider it very unlikely that approximately half of the population was able to be seen by such a method. Further, the surveys between 1998 and 2001 that took place in March, August and November all revealed lower shark numbers, with an average of only 146. This suggests that if the mark-recapture study was undertaken at a different time of year, it would have revealed a different population estimate.
- There are clearly a number of difficulties with the mark-recapture study. However, there are no other studies that have led to population estimates. Dr Lincoln-Smith and Dr Pepperell ventured the opinion that the population was above 1000.
Evidence of population decline
- The Conservation Council submitted that even if the population was greater than 500, fishing in the OTLF was causing inevitable population decline. It relied on the 2004 paper by Otway, Bradshaw and Harcourt, Estimating the rate of quasi-extinction of the Australian grey nurse shark (Carcharias taurus) population using deterministic age- and stage-classified models, which was published in the peer-reviewed journal “Biological Conservation”.
- This paper used a demographic model. In his oral evidence, Dr Otway placed more emphasis on the demographic model than the mark-recapture report and even said that he “probably wouldn’t use [mark-recapture estimates] any more” and “whether the population is large or small is in some respects irrelevant because the animal suffers because of its biology” (Transcript p. 454).
- The model projects the growth rate of the female population. This growth rate is then applied to different population estimates to calculate the time until “quasi-extinction”, which is when there are 50 or less females in the population.
- The first stage of the model involves calculating a “natural” population growth rate from parameters including reproductive age (six years), number of female births per year from mature females (0.5) and natural survival rate (calculated as an annual rate from an exponential function, based on a 25 year maximum lifespan). This reveals a slightly negative population growth rate. Therefore, even in the absence of any human activity, this model suggests that the biology of grey nurse sharks is such that the population is declining.
- Dr Otway gave evidence that some of the inputs used in the 2004 paper are no longer correct. The reproductive age is now known to be 12 years and the maximum age 35 years. This modifies the population growth rate to a positive figure of approximately two percent. We are concerned that the biology of grey nurse sharks is only just becoming known. There is no doubt that they have very low fecundity. However, there is no evidence about natural mortality. The paper simply predicts that one percent of the population is alive at the maximum age and that there is an exponential rate of decline until that point. It also predicts that there is no decline in fertility with age, which may be unlikely to be true.
- The second stage of the model involves adding fishing-related mortality. Reports compiled by Dr Otway from 2002 to 2007 consistently show nine reported female deaths per year, including two within the juvenile size class (age less than six years) and seven within the mature medium size class (age of six to fifteen years). These were input into the model and the population growth rate was modified accordingly. Obviously with Dr Otway’s updated figures, the allocation of deaths to each class will change.
- Dr Otway asserted in his evidence that fishing-related deaths of two females per year will send the population into decline. This is because it brings the population growth rate below a positive figure. He was unwilling to accept that, logically, this proposition would not hold if there was an infinite population (Transcript p. 541-542). We have some difficulty with the concept that an absolute number of deaths will continue to have the same impact regardless of population size. The natural population growth rate, given that it is a positive value based on the latest figures, must at some point counter this additive mortality rate.
- Turning to the findings in the paper, it is estimated that quasi-extinction (less than 50 females) will occur in 84 years for a female population of 500 (total 1,000) and 289 years for a female population of 1,500 (3,000). Assuming that only half of the actual deaths are reported, the period reduces to 45 years for a female population of 500 (1,000) and 173 years for a female population of 1,500 (3,000). In his statement, Dr Otway says that the “current most likely estimate” is 10-20 years for a total population of 500. This is based on revised age inputs and, presumably, under-reporting. Because of the low numbers in this estimate, it would not be safe to say that the sexes are evenly divided.
Conclusion on population evidence
- The existing evidence on the size and stability of the east coast population of grey nurse sharks is very limited. There are reasons to think that the mark-recapture estimate is unreliable. However, there is no alternative population estimate. We consider that the population is most likely to be somewhere between 500 and 1,500. However, it might be more.
Evidence on aggregation sites
- All the experts agreed that grey nurse sharks tend to congregate in particular habitats. Research conducted principally by Dr Otway identified a number of coastal sites where sharks have historically been sighted. The Conservation Council has identified eighteen sites (see para 18 above) that warrant further protection.
- There was disagreement about the importance of the identified sites. Dr Otway’s evidence suggested that 12 of the sites are always occupied by a significant portion of the grey nurse shark population. Dr Peddemors considered all eighteen sites to be significant to grey nurse sharks. Dr Lincoln-Smith and Dr Pepperell said that only a portion of all possible aggregation sites have ever been researched. The importance of the eighteen identified sites directly informs the utility of having fishing closures at them.
The current position in the OTLF
- The OTLF is regulated by the state of New South Wales. The primary applicable legislation is the Fisheries Management Act. Much of the Act is concerned with environmental conservation. The Act provides for listing of threatened species in categories such as “endangered”, “species presumed extinct” and “vulnerable” (s 220F). Grey nurse sharks are listed as an endangered species.
- In addition, the Act provides for critical habitats to be declared (s 220T). Ten sites have been declared for grey nurse sharks. They are sites 1(a), 5, 8, 9(a), 10, 12, 14, 15 and 16 (see para 18, above). Site 5 (Fish Rock and Green Island) is treated as two sites by the declaration. The sites are defined by a circle with a radius of 200 metres from the identified natural feature. In addition, there is a buffer zone of a further 800 metres in most cases (Schedule 1A of the Fisheries Management (General) Regulation 2002 (NSW)).
- Clause 340B of the Regulation prohibits the following fishing activities in the critical habitats:
1. Anchored or moored fishing using bait;
2. Drop, drift or set line commercial fishing; and
3. Anchored, moored or land fishing using wire trace.
The following fishing is permitted:
1. Anchored or moored fishing using artificial fly or artificial lure; and
2. Trolling or drifting using bait, fly or lure with or without wire trace.
- The following fishing activities are prohibited in the 800 metre buffer zone (cl 20A):
1. Drop, drift or set line commercial fishing; and
2. Anchored or moored fishing using wire trace.
The following fishing is permitted:
1. Anchored or moored fishing with bait.
2. Anchored or moored fishing using fly or artificial lure.
- Trolling or drifting fishing using bait, fly or lure with or without wire trace; and
4. Land fishing without wire trace.
- However, these are not the only protective measures which are relevant to grey nurse sharks. There are also Marine Parks and Aquatic Reserves which cover the whole or part of some critical habitat areas as well as other areas. The evidence on this and the actual protective measures imposed is voluminous and detailed. We will try to summarise the impact on each site below. However, a schedule agreed by the parties which is more comprehensive, will be annexed to these reasons. By way of illustration, sites 2, 3 and 4 are protected by the Solitary Islands Marine Park. The relevant zoning appears, amongst other things, to prohibit set line and drop line commercial fishing.
- The terms of the Minister’s approval required a Fishing Management Strategy to be finalised and approved. The strategy was completed in November 2006. It deals with a number of issues in the OTLF. Many of the matters dealt with are general. However, it does contain a section on conservation of threatened species which directly addresses grey nurse sharks. It contains the following particular objective:
3.1(c) Implement changes to reduce or prevent the impact of the OTLF on grey nurse sharks, including:
(i) the exclusive use of circle hooks for all unattended line fishing methods, in accordance with the requirements specified in management response 1.2(f)
(ii) prohibiting the use of wire trace on bottom setlines used in waters within 3 nm of the coastline as well as within the defined buffer zones of all identified grey nurse shark critical habitat areas and key aggregation sites
(iii) investigating the effectiveness of the use of circle hooks for all attended line fishing methods, and
(iv) working with ocean trap and line fishers to implement spatial and/or temporal closures in grey nurse shark critical habitat areas and key aggregation sites on a site-by-site basis to gear types that pose a high and medium direct risk to grey nurse sharks, taking account of the characteristics of each site and its relative importance to grey nurse sharks.
- The Fishery Management Strategy was preceded by a Draft Strategy and a Preferred Strategy Report which commented on the Draft Strategy. The Preferred Strategy Report contained recommendations similar to, but not identical with, the above objectives. They were as follows:
88.1 requiring the use of “non-offset” circle hooks on all unattended lines used in waters of a depth of less than 92 metres (50 fathoms) by 1 July 2007;
88.2 prohibiting wire traces on bottom setlines used in all waters within 3 nm of the coastline and within the agreed buffer zones of all identified grey nurse shark critical habitat areas and key aggregation sites located beyond 3 nm; and
88.3 closing all critical habitat areas and key aggregation sites to the commercial fishing methods identified in the Species Impact Statement as high or medium risk within 12 months of approval of the FMS, with the size and/or duration of each closure to be determined on a site-by-site basis in consultation with affected fishers, taking account of the characteristics of each site and its relative importance to grey nurse sharks.
Condition 6(a) of the Minister’s Conditions addresses the recommendations in the Preferred Strategy Report and requires them to be developed and implemented by 16 November 2007.
- The evidence before us was that the Department of Primary Industries was conscious of its obligation under the condition and that steps would be taken to implement the strategy within time.
- Most of the time in the hearing was dedicated to the significance of each of the identified aggregation sites to grey nurse sharks. The respondent proceeded to a detailed, site-by-site analysis, which involved evidence about physical features, scientific studies, anecdotal evidence and current protections under NSW law.
- We have compiled a summary of the site-by-site evidence, which incorporates information provided in the table annexed to the decision. The summary makes reference to the protection at each site and the evidence, principally of Dr Otway, relating to the importance of the site. Significant reference was made to the 2003 study of Otway, Burke, Morrison and Parker, Monitoring and identification of NSW Critical Habitat Sites for Conservation of Grey Nurse Sharks. That report was commissioned by NSW Fisheries and was not peer reviewed. This study was designed to assess the relative importance of sites considered to be significant to grey nurse sharks. We found that the presentation of the results was not particularly helpful and was sometimes misleading. These results are reproduced in the first column of the table. It is more helpful to know where, when and how many sharks were present during the study, rather than percentage figures that seek to summarise that information.
- The site-by-site information refers to the EIS (Environmental Impact Statement) that was published by the NSW Department of Primary Industries in March 2006. It is indicative of the importance placed on various sites by the Department.
- The site-by-site analysis shows the current protection at each of the eighteen sites as a result of critical habitat declarations, Marine Parks and Aquatic Reserves. It may be summarised as follows:
Fishing currently prohibited to 1.5km in all directions
Fishing currently substantially prohibited
Fishing currently restricted by critical habitat or marine park zoning
No current protection
8. The Pinnacle (critical habitat site (CH))
9(a). Big and Little Seal Rocks (CH)
1(a). Julian Rocks (CH) (except, seasonally, 0.7-1.5km N)
10. Little Broughton Island (CH) (except to NW and W)*
15. Tollgate Islands (CH)* (except 0.87-1.5km W and 0.96-1.5km N)
17. Cod Grounds (except 1-1.5km in all directions)
1(b). Spot X
2. Manta Arch*
3. The Steps/Anenome Bay*
4. The E Gutters
5. Fish Rock and Green Island (CH only)*
7. Latitude Rock and Spot A
9(b). White Top Rock
9(c). Inner and Outer Edith Breaker*
9(d). Skeleton Rocks
9(e). Sawtooth Rocks*
12. Magic Point (CH only)*
14. Bass Point (CH only)
16. Montague Island(CH)*
18. Pimpernel Rock
6. Mermaid Reef*
11. Foggy’s Cave
13. Long Reef
At the sites that are underlined, Dr Otway considers that further closures are necessary. At sites 3 and 16 this would be seasonal only. The sites indicated by an asterisk are those for which closures are contemplated by 16 November 2007 under condition 6(a). The protection offered by critical habitat sites and different zones may be summarised as follows:
No commercial or recreational fishing.
Critical habitat site
Fisheries Management (General) Regulation 2002:
Within 200m: No commercial fishing with bait from anchored or moored vessels (cl. 340B).
Within 1km: No drop, drift or set line commercial fishing (cl. 20A). Restrictions on gear weight.
No drop, drift, set or long line commercial or recreational fishing.
Other line fishing, spear fishing, trapping, recreational netting and hand gathering allowed.
Habitat protection zone
Same as marine park protection.
Restricted habitat protection zone
Marine park protection + no fishing with bait and/or from anchored vessels.
1(a) Julian Rocks (off Byron Bay)
Julian Rocks is a declared critical habitat site and falls within the Cape Byron Marine Park (established 2002). It is protected by a sanctuary zone extending 1.5km in all directions, except to the north of the site, where it only extends 700m. The area 700m-1.5km north falls within the Mackerel Boulder habitat protection zone which becomes a sanctuary zone from 1 May to 31 December (when sharks are most abundant in the area).
The Environmental Impact Statement (EIS) states “Importance: Medium – Seasonal (May – December)” (T-docs at 1369). Dr Otway stated there is clear scientific evidence that this is an aggregation site. The 2003 study found sharks on 3/10 dives, mainly during winter. Acoustic listening stations are deployed at this site. One shark, tracked for 15 hours, spent 97% of time within 0-500m, 3% within 500m-1km. A second shark was tracked for 13 hours and spent 95% 0-500m, 2.5% 500m-1km, 2.5% 1-1.5km (interpreted as a migratory movement). Dr Peddemors stated that it has year-round importance, based on an unpublished survey by undergraduate student Womersley (2004), which found grey nurse sharks in all months of the year between 2001 and 2004. Mr Read said that fishing is minimal from May to December because there is poor weather and shore access is limited by permit.
1(b) Spot X (off Byron Bay)
Spot X is close to Julian Rocks (appears to be <1km). The Conservation Council contends for an oval shaped closure encompassing both this site and Julian Rocks. Spot X is within the Cape Byron Marine Park. It is protected by a sanctuary zone extending ~1.5km to the south and the Mackerel Boulder habitat protection zone extending ~500m in all other directions (becomes a sanctuary zone from 1 May - 31 December).
The EIS does not identify this site as a key aggregation site (undefined) (T-docs at 1367). Sharks have historically been found at the site. The 2003 study found no sharks on 2 winter dives and Dr Otway has never seen a shark on any personal dive at this location. Dr Peddemors said that sharks move between Julian Rocks and nearby reefs, including Spot X. Dr Otway accepted that the topography and underwater habitat of the reef systems at Julian Rocks and Spot X are similar and are likely to be utilised by grey nurse sharks. Sharks have been observed moving between other sites of similar topography, ie Fish Rock and Green Island and Big and Little Seal Rocks. It is possible that this has occurred at this site but Dr Otway hasn’t had the opportunity to collect any data (Transcript at 305).
2 Manta Arch (off South Solitary Island)
Manta Arch is within the Solitary Islands Marine Park (established 1998). It is protected by a habitat protection zone which extends 1.5km in all directions, except to the east of the site, where it only extends 700m. It also overlaps in one section with the South Solitary Island sanctuary zone (partial 100m protection). Dr Otway recommended a 500m-1km closure around the site, plus a 500m buffer zone.
The EIS states “Importance: High – Year Round” (T-docs at 1372). Dr Otway stated there is clear scientific evidence that this is an important aggregation site. It was nominated for protection as a critical habitat site in May 2002. The 2003 study found large aggregations on 8/10 dives. Acoustic listening stations are deployed at this site.
3 The Steps/Anemone Bay (off North Solitary Island)
The Steps is within the Solitary Islands Marine Park. It is protected by a habitat protection zone extending 500-750m in all directions and there are patches protected by the North West Rock and North Solitary Island sanctuary zones. Dr Otway recommended a 500m seasonal closure around the site, plus a 500m buffer zone, from 1 June - 31 December.
The EIS states: “Importance: Medium – Seasonal (May - December)” (T-docs at 1370). This site was nominated for protection as a critical habitat site in May 2002. The 2003 study found sharks on 4/10 dives, mainly in winter and spring (as part of North Solitary Island survey). Acoustic listening stations are deployed at this site. Dr Otway considers it unlikely that sharks use the site year-round, given that water temperatures exceed 26 degrees during summer and autumn and sharks spend less than 1% of their time in waters at this temperature. Nevertheless, sharks were present at this site in January 2007. Dr Peddemors claimed the water temperature evidence is unreliable, particularly in light of global warming. Pimpernel Rock, only 20km to the north of this site, has large numbers of the shark, so it would follow that the Steps has similar numbers. Dr Otway responded that Pimpernel Rock is in deeper water and therefore cooler water temperature for longer periods.
4 The E Gutters (off North West Solitary Island)
The E Gutters is within the Solitary Islands Marine Park. It is protected by a habitat protection zone extending 1.5km in all directions, with a section protected by the North West Solitary Island sanctuary zone.
The EIS does not identify this site as a key aggregation site (T-docs at 1367). In a 2000 literature review, Dr Otway identified this as “a popular site” with divers, where “sharks have been encountered cruising through these gutters during the latter half of the year” (T-docs at 2104). The 2003 study found sharks over 9 surveys. Acoustic listening stations are deployed at this site.
5 Fish Rock and Green Island (off South West Rocks)
Fish Rock and Green Island are both critical habitat sites. They are popular seasonal fishing sites (Mr Read). Dr Otway recommends at least a 1km closure around each site, with a 500m buffer zone, and a protective corridor over the several km between the sites. This would result in an oval around the two sites.
The EIS states: “Importance: High – Year round” (T-docs at 1374). The 2003 study found large aggregations on 8/10 surveys. Acoustic listening stations are deployed at this site. Dr Otway conducted localised five localised acoustic tracking studies of 8 to 25 hrs. The sharks spent 100% of their time within 500m (Exhibit 6, para ; Exhibit 7). CSIRO tracking in 2002 found that one shark moved out to 500-1000m zone (VP4-tab 4 at 31). The latest SEACAMS results found that one shark stayed around gutter at Fish Rock for 6 days. Fishing is localised very close to Fish Rock itself. Tagging studies show that sharks are going backwards and forwards between the Fish Rock and Green Island. Acoustic listening stations are deployed at this site.
6 Mermaid Reef (off Crowdy Head)
This site is unprotected. There are a number of gutters spread over an extensive reef, so it is unknown where exactly the sharks are located. Dr Otway believes that this site is used infrequently during migration periods. He would be prepared to recommend protection if he knew other evidence (ie, anecdotal evidence and uncited references in EIS) was reliable.
The EIS states: “Importance: High – Year round” (T-docs at 1375). Further, up to 70 grey nurse sharks have been recorded at this site at one time (September 2003). The largest aggregations of grey nurse sharks have been observed from August to November (no source cited) (T-docs at 1377). It concludes “Any form of fishing that utilises hooks (particularly with bait) in the vicinity of the grey nurse shark aggregation site at Mermaid Reef is considered to be a significant threat to the species” (T-docs at 1379). The 2003 study found small aggregations over 7 surveys (all seasons). During the mark-recapture study in June 2003, 53 sharks (16.9% of observed population) were observed in week 1 but no sharks were observed in week 2. Dr Otway said that there is anecdotal evidence of significant numbers at this site, although they may not stay long (during migrations) (see also T-docs at 2110). He previously recommended “some protection, at least as a strictly precautionary measure” (T-docs at 408). There has been one reported death at this site since the operation was approved. It is popular for recreational charter fishing and there is some commercial drop lining (Mr Read).
7 Latitude Rock and Spot A/Latitude Reef (off Forster)
These two sites are linked by a reef. They fall within a habitat protection zone of the Port Stephens Great Lakes Marine Park (came into effect 21/04/07) which extends 1.5km in all directions.
The EIS does not identify this site as a key aggregation site (T-docs at 1367). The 2003 study found small aggregations over 10 surveys (in all seasons). Acoustic listening stations are deployed at this site. Sharks move between this site and the Pinnacle. However, the Pinnacle is in deeper waters and attracts greater numbers of prey. Dr Otway agreed that the numbers of prey at Latitude Rock might increase as a result of fishing restrictions (Transcript at 332). He said movement between the sites is not as extensive as between Fish Rock and Green Island. Fewer sharks are seen at Spot A than Latitude Rock. This is a very popular recreational fishing site and there is commercial fishing for surface species (trolling) (Mr Read).
8 The Pinnacle (off Forster)
The Pinnacle is a declared critical habitat site. It falls within a sanctuary zone in the Port Stephens Great Lakes Marine Park which extends 1.5km in all directions.
The EIS states: “Importance: High – Year round” (T-docs at 1379). Dr Otway stated there is no scientific uncertainty about its importance as an aggregation site. The 2003 study found larger aggregations during all surveys. Acoustic listening stations are deployed at this site.
9(a) Big and Little Seal Rocks
Both Big and Little Seal Rocks are declared critical habitat sites. Sharks are known to move between these sites. They fall within a sanctuary zone in the Port Stephens Great Lakes Marine Park which extends 1.5km in all directions. The applicant proposes an oval shaped closure around Big and Little Seal rocks.
The EIS states: “Importance: High – Year round” (T-docs at 1383). The 2003 study found larger populations on 8/10 dives. Acoustic listening stations are deployed at this site. It is a very popular recreational and commercial fishing area (Mr Read).
9(b) White Top Rock (Seal Rocks)
This site is 200m off-shore from Boat Beach (impossible to fish from shore). It falls within a habitat protection zone of the Port Stephens Great Lakes Marine Park which extends 1.5km in all directions.
The EIS does not identify this site as a key aggregation site (T-docs at 1367). However, it states: “Little Seal Rock is a barren rocky outcrop with extensive surrounding reef offshore from Sugarloaf Point at Seal Rocks. It is known that grey nurse sharks regularly migrate between [Sugarloaf Point and Seal Rocks] and other sites in the Seal Rocks area including Sawtooth Rocks, Edith Breaker and White Top Rock” (T-docs at 1382). Dr Otway says that he does not have any observations to support this. The fish populations are similar to those at Big and Little Seal Rocks. This site was not sampled in 2003 study. There is anecdotal evidence of sightings of one to three sharks. One fishing-related death occurred at the end of Seven Mile Beach, some distance from White Top Rock. This is a popular spear fishing site (Mr Read).
9(c) Inner and Outer Edith Breaker (Seal Rocks)
This site is protected by a restricted habitat protection zone with a prohibition on fishing with bait.
The EIS states: “Importance: High – Year round” (T-docs at 1387). The 2003 study found small numbers of sharks over 7 surveys. Dr Otway accepted that it is likely that sharks at Edith Breaker could swim through to Big and Little Seal Rocks and vice versa. However, there is rough water between. The fish populations are similar to those at Big and Little Seal Rocks. It is a very popular recreational and commercial fishing area (Mr Read).
9(d) Skeleton Rocks (Seal Rocks)
This site is protected by a restricted habitat protection zone, up to ~500m in all directions, with restrictions on fishing with bait and from anchored vessels. Beyond this distance, it is protected by a habitat protection zone to the north and west and a sanctuary zone to the east and south.
The EIS does not identify this site as a key aggregation site (T-docs at 1367). Dr Otway considers it to be the least important of all sites sampled. The 2003 study found a few sharks over 6 surveys. The fish populations are similar to those at Big and Little Seal Rocks.
9(e) Sawtooth Rocks (Seal Rocks)
This site is protected by a restricted habitat protection zone extending 1.5km in all directions, with restrictions on fishing with bait and from anchored vessels. It involves a series of rocks coming out from Sugarloaf Point.
The EIS states: “Importance: High – Year round” (T-docs at 1385). It is referred to as a “key aggregation site” (at 1387). Further, “It is believed that the same sharks move back and forth to Big and Little Seal Rocks as well as Sawtooth Rocks and possibly Broughton Island” (at 1387). “Juvenile grey nurse sharks can be predominantly seen at this site and the largest numbers are known to occur from January through May” (at 1385). Dr Otway agreed that if that statement is true, this site ought to be protected because of the importance of juveniles to the population. Dr Otway considers this to be the second most important site in the Seal Rocks region, after Big and Little Seal Rocks. The 2003 study found aggregations over 3 surveys. It is a very popular recreational fishing area (Mr Read).
10 Little Broughton Island (off Port Stephens)
Little Broughton Island is a critical habitat site. It is protected by a sanctuary zone up to almost 1.5km in all directions, except to the north-west and west. In the western direction, between Little Broughton and Broughton Islands, it is protected by a restricted habitat protection zone with a prohibition on fishing with bait and from anchored vessels. This area is actually a boulder-strewn, shallow area of rough water where, according to Dr Otway, sharks are unlikely to travel. Sharks pass through a gutter after spending a brief amount of time at North Rock, approximately 2.5km NW of Little Broughton Island. Sharks also move around to Looking Glass Isle, approximately 2km WSW of Little Broughton Island.
The EIS states: “Importance: High – Year round” (T-docs at 1389). Dr Otway considers there is no scientific uncertainty about its importance as an aggregation site. The 2003 study found aggregations on 9/10 dives. There were a high proportion of females and juveniles, suggesting this is an important pupping site. Acoustic listening stations are deployed at this site. Tracking studies show that sharks spend most of their time within 50m of the actual island. There was one female death in the critical habitat zone in 2002 (wobbegong set line) and one recreational death recorded at the site. This is an extremely popular recreational fishing area (Mr Read).
11 Foggy’s Cave (off Terrigal)
This site is unprotected. It is a deep (~30m) offshore site with an overhang cave. It is not marked by any surface buoy and is not identified in fishing handbooks. It is used by divers with GPS locators. Dr Peddemors suggested that a seasonal closure might be appropriate.
This was a significant site in the past. The EIS does not identify this site as a key aggregation site (T-docs at 1367). During the 2003 study two or three sharks were present on 2/8 dives. Dr Otway has only observed sharks at this site during autumn, usually for a month or so, in numbers of around five sharks. They are generally large males. Three sharks were sighted during on 19 April 2007. Dr Otway has not observed any sharks at this site with external hooking. Dr Otway considers that the reported death of a juvenile female shark at Terrigal was likely to be much closer to the shore. Fishing is limited at this site (Mr Read).
12 Magic Point (off Maroubra)
This site is a critical habitat site. It is within 100-150m of the shore. Dr Otway recommended a 500m closure with a 500m buffer zone. He considers that sharks are unlikely to traverse the sand bank off the beach.
The EIS stated: “Importance: High – Year round” (T-docs at 1392). The 2003 study found that significant aggregations were present on 5/9 dives. Dr Otway considers there is no scientific uncertainty that this is an aggregation site. Acoustic listening stations are deployed at this site. Anecdotal evidence from divers suggests that, where there are milder temperatures, sharks can be present 100% of the time. Dr Otway accepts this is likely. One female shark was killed at this site on a recreational wobbegong set line on 19/03/03. (Note that four other sharks were killed on bottom set lines south of the entrance to Botany Bay and well outside the Magic Point site.) There is no evidence of sharks being caught in nets that are 300-500m offshore and within 1.5km of the site. Dr Peddemors said that he observed a fishing boat moored and fishing within 20m of the Magic Point critical habitat site (Transcript at 298-299) and in last year there have been 12-15 sharks at the site (at 399). This is a popular recreational fishing area. Commercial line fishers only occasionally visit the area (Mr Read).
13 Long Reef (off Sydney)
This site is basically unprotected. Within 100m of the shore, the Long Reef Aquatic Reserve prohibits all fishing except spear and hook and line fishing for fin fish.
The EIS does not identify this site as a key aggregation site (T-docs at 1367). It was a significant site in the past. During the 2003 study, no sharks were seen over four surveys (one per season). They were seen in diver surveys in the 1990’s. Two of the sharks in the 2004 mark-resighting survey were at this site. Dr Peddemors considers that the current data are too limited to be able to qualify this site as an aggregation site or not. He considers that the site could be re-utilised if there is a population increase and if there are changes in water temperature.
14 Bass Point (off Shellharbour)
This is a critical habitat site. It is otherwise unprotected.
The EIS states: “Importance: Low – Rare (occasionally over summer)” (T-docs 1394). During the 2003 study, an aggregation was seen on 1/10 dives. Only one shark has been sighted since 2004. Acoustic listening stations are deployed at this site. Dr Otway did not support the recommendation to declare this site as a critical habitat site and does not support its maintenance. He says the declaration was linked to other management considerations, rather than scientific considerations, in relation to the declaration of a possible aquatic reserve in 2002. There has been one male death from recreational fishing outside the critical habitat. This is a very popular recreational and commercial fishing area (Mr Read).
15 Tollgate Islands (off Batemans Bay)
This is a critical habitat site protected by a semi-circle on the east side only. The critical habitat protection is superseded by a sanctuary zone within the Batemans Marine Park (came into effect 30/06/07) which extends 1.5km in all directions, except it only reaches 870m to the west and 960m to the north. Currently, if fishers do not anchor at the site, they will trawl over it or moor at the mooring buoy very close to the main gutter.
The EIS states: “Importance: High – Year round” (T-docs at 1396). During the 2003 study, larger aggregations were seen on 9/10 dives. Dr Otway considers there is no scientific uncertainty associated with this site. It is the most important southern aggregation site. Acoustic listening stations are deployed at this site. Wayne Smith, dive operator, provided a sworn statement to the Conservation Council including data for 2004 which showed sharks year-round and almost every single week of the year (VP4-tab 24). 2004 was a particularly warm year. This site is very popular for recreational fishing area and commercial lobster fishing (Mr Read).
16 Montague Island (off Narooma)
This is the southern-most aggregation site for grey nurse sharks. On the northern tip of the island there is a critical habitat site, with a buffer zone extending around the whole island. It is also protected, patchily, as part of the Batemans Marine Park. There is a habitat protection zone extending 1.5km in all directions, plus:
- North: from 1 Nov – 30 April, restricted habitat protection zone from with a prohibition on fishing with bait, at anchor, with wire trace, with nets (except landing nets) and with spears or handguns)
- Eastern bay: small sanctuary zone
- South-eastern corner: sanctuary zone
Dr Otway supports a seasonal fishing closure, extending from the northern tip of the island, of radius 500m with a 500m buffer zone. The Draft recovery plan (T-docs at 95) mentions the main site, Shark Gutters, on the northern tip, but also three other sites on the western side: the Bubble Cave, the Pinnacles and the Gut. Dr Otway says that Shark Gutters is the predominant site occupied but occasionally sharks are observed at the Pinnacles and the Bubble Cave. In the distant past they were at the Gut. There are seals on the western side and the sharks tend to avoid the seals.
The EIS states: “Importance: Low – seasonal Nov – April” (T-docs at 1398). The 2003 study found sharks on 2/10 dives. They were mainly reproductive mature females and juveniles. Dr Otway considers that although this is a marginal site in terms of numbers, it may be important as a breeding area. Sharks have been caught on commercial and recreational lines. There have been six deaths, all during either March or April. At least two deaths preceded the declaration of a critical habitat site. Three females have been killed from recreational fishers in the OTLF. Juveniles have been caught to the north-western corner beyond 200m. Dr Peddemors considers that the proximity and similarity in water temperatures to Tollgate Islands, supports protection at this site. This site is extremely popular for recreational charter fishing and commercial fishing (Mr Read). Fishing is predominantly on the south west and north east of the island, over reef structures.
17 Cod Grounds (off Laurieton) (Commonwealth site)
This area is protected by the Cod Grounds Commonwealth Marine Reserve (gazetted 28/05/07), which prohibits all commercial fishing vessels and recreational fishers to a distance of 1km in all directions. Dr Otway recommends a 1km closure with a 500m buffer zone.
Dr Otway considers this is clearly a significant site. During the 2003 study, larger aggregations were present on 10/10 dives. Dr Otway said that Divers witnessed a shark caught by recreational fishers using heavy gear, but the fishers weren’t apprehended. Sharks have been observed on numerous occasions with embedded hooks. This site is deep and cool, so sharks can stay for longer.
18 Pimpernel Rock (off Brooms Head) (Commonwealth site)
This site is within the Solitary Islands Marine Park. It is protected by a sanctuary zone extending 500m in all directions and a habitat protection zone extending from 700-1000m. Dr Otway recommends a 1km closure with a 500m buffer zone.
Dr Otway considers this is clearly a significant site. During the 2003 study, aggregations were seen on 3/4 dives. Dr Otway said that heavy fishing gear has been found at the site, indicating that fishing is still taking place illegally. This site is deep and cool, so sharks can stay for longer.
Conditions relating to fishing gear
- The Conservation Council seeks two conditions relating to fishing gear for both commercial and recreational fishers. First, mandatory use of non-offset circle hooks. Secondly, a ban on wire trace.
- There are two types of hook: circle hooks and “J” hooks. A circle hook is rounded so that the point (barbed tip) is directed towards the eye or shank. Circle hooks are designed so that when a fish swallows the hook, the fisher can pull the hook out of its stomach without catching any tissue until it reaches the fish’s lip. By contrast, the point of a “J” hook is perpendicular to the shank. A “J” hook is more likely to catch internal tissue when it is drawn out. Hooks appear to vary quite significantly. Some of the circle hooks in evidence were only very slightly rounded.
- Hooks can be offset or non-offset. Non-offset hooks lie flat in the same dimensional plane. The point of an offset hook bends away from the plane. An offset hook is more likely to catch internal tissue when it is drawn out.
- In theory, non-offset circle hooks are the least likely to cause hooking damage. However, all types of hooks have been implicated in grey nurse shark deaths. Because of the irregular gut lining and internal anatomy of the sharks, there is a risk that any kind of swallowed hook will become embedded or cause internal damage.
- Some restrictions on permitted fishing gear for commercial OTLF fishers came into force on 1 July 2007 (see NSW Government Gazette No. 83 at 4245). Circle hooks are now mandatory on unattended lines (set hooks with no fisher present) and non-offset circle hooks are mandatory on unattended lines at depths of less than 92 metres. Sharks travel into waters deeper than 92 metres. There is no restriction on the hooks that can be used on attended lines (lines where fish will be landed upon hooking), although that is subject to review in November 2007. On unattended lines, there is a greater risk that a hooked shark will suffer stress and lactic acid build-up in the period before it is landed. This increases the risk of post-capture death. However, presumably, the damage caused by embedded hooks or hook wounds cannot be prevented even if the fish is landed immediately.
- Wire trace is any form of fishing line that contains wire. It is attached to hooks as an alternative to nylon line by fishers targeting fish with strong cutting teeth. Grey nurse sharks do not have cutting teeth. Wire trace has a greater breaking strain than nylon line, so a hooked fish is less likely to break free and is more likely to suffer stress and lactic acidosis.
- Both wire trace and nylon line have been found in grey nurse shark autopsies. During diver surveys of live sharks, hooks attached to nylon line were observed more frequently than hooks attached to wire trace.
- Since 1 July 2007, wire trace has been banned within buffer zones of critical habitat sites and on bottom set lines within three nautical miles of the coast. Sharks travel beyond three nautical miles.
Conclusion on fishing gear
- All types of hooks and all types of line cause shark injuries. While, in theory, non-offset circle hooks and nylon line are less likely to cause damage, there is no evidence to support this. The NSW Department has imposed some restrictions on the use of gear. The Conservation Council argues that these should be extended to all activities in the OTLF. It is true that sharks travel into waters deeper than 92 metres and beyond three nautical miles of the coast. They may be caught and injured on attended lines.
Examination of the issues
- The Act provides that the Minister must not approve a wildlife trade operation unless the Minister is satisfied that the operation will not be detrimental to the survival of a taxon such as the east coast population of grey nurse sharks. We accept that the obligation is absolute. Nevertheless, whether or not the condition is satisfied will depend on the Minister’s and, on review, our findings of fact and the opinions reached from those facts.
- The population of grey nurse sharks off the east coast of Australia is likely to be between 500 and about 1,500. It might be more. Human activity has for a number of years affected the size of the population. Fishing for grey nurse sharks in earlier periods was responsible for a substantial decline in the population. The decline is continuing and that decline is substantially contributed to by sharks being accidentally hooked. This accidental process is caused by both commercial fishing and recreational fishing, including spear fishing. Recreational fishing is not regulated by the OTLF. There are also other commercial fisheries apart from the OTLF operating in the area.
- The population of grey nurse sharks may well have reached the stage that extinction is inevitable even if accidental deaths are eliminated. The risk to the survival of the population is partly due to the low fertility rate of the sharks. Loss of even a few females per year can affect survival prospects of the species.
- The evidence of actual deaths is mostly inconclusive as to the place where the sharks were hooked. Hooked sharks have largely been detected outside the known aggregation sites. However, the sharks may well have been hooked at such sites. As a general proposition, it must be true that the greater the protection, whether in terms of the number or area of protected sites, the more likely it is that deaths will be reduced. However, the areas which the applicant seeks to have protected are a tiny proportion of the sea which grey nurse sharks inhabit. Although they spend a substantial amount of time at aggregation sites, there is no evidence which would enable any prediction as to the effect that increasing the amount of protected area would have on mortality. Further, there is no evidence that increasing the prohibition on the use of “J” hooks, offset hooks or wire trace would reduce any detriment to grey nurse sharks.
- The Tribunal faces a difficult task. In the way the case was presented by the Conservation Council, we should address the need for an increase in the protection of grey nurse sharks around aggregation sites and from injury and death associated with hooks and wire trace. However, we must do this in the context of asking ourselves whether we are satisfied, relevantly, that the operation under consideration will not be detrimental to the survival of grey nurse sharks. Our consideration of this matter requires us to address the facts, including the fact that further protective measures are proposed, although they have not been finally determined. That must happen by 16 November 2007.
- When we address the facts a number of propositions emerge:
- Grey nurse sharks have for some time been an endangered species.
- The population of grey nurse sharks has reduced over recent decades, the reduction being greatest in the middle of the last century when commercial and recreational fishers actively fished for them.
- The population of grey nurse sharks is probably now in the range of 500 to 1,500 although it could be larger.
- Two female deaths per year are likely to mean a continuing decline in the population of grey nurse sharks.
- There are approximately nine recorded female deaths per year caused by fishing.
- There may be, and almost certainly are, non-recorded deaths.
- About half of the recorded deaths are caused by fishing in the OTLF. The remaining deaths are from commercial fishing outside the OTLF, recreational fishing (including spear fishing) and other causes such as shark netting to protect swimming beaches.
- Most of the deaths have been detected away from aggregation sites, although the event leading to the death may have occurred at an aggregation site.
- The evidence before us is not specific as to the frequency with which offset circle hooks and wire traces are implicated in shark deaths.
- In determining whether the operation, while subject to the conditions imposed by the Minister, is detrimental to the survival of grey nurse sharks, we must take into account three things:
- The present position and likely future of grey nurse sharks apart from the effects of human activity.
- The effect of human activity outside the OTLF.
- The effect of the OTLF.
- We have concluded that the wildlife trade operation constituted by the OTLF and operated in accordance with the Minister’s conditions will not be detrimental to the survival of grey nurse sharks. To the extent that the grey nurse shark population off the east coast of Australia is subject to threats to its survival, and it is, we think that these threats are the consequence of the biology of the sharks, of the fact that they are already critically endangered and of the fact that they are subject to sufficient deaths each year from causes outside the OTLF to threaten their existence. It is true that, on the evidence, deaths caused by the OTLF will also have an adverse impact on the sharks. However, this adverse impact will not add to the detriment which will continue whatever action we take. Moreover, we find that the different protections proposed by the Conservation Council will have no measurable impact however desirable they may be. When we take into account all the matters referred to above we are satisfied that the operation will not be detrimental to the survival of the sharks.
- At the outset of the hearing both parties informed us that they were not seeking a decision refusing to make a declaration under s 303FN. This position remained relatively unchanged until the Conservation Council, near the conclusion of the hearing, informed us that it sought a refusal to make a declaration as an alternative to affirming the Minister’s decision. Before this late change, the Conservation Council’s claim could only be understood as asserting that the operation of the OTLF was not necessarily detrimental to the survival of grey nurse sharks. Its case was that with an increase in the number, size and extent of protection at critical habitat sites, together with more extensive bans on the use of offset and “J” hooks and wire trace, the OTLF would not be detrimental to the survival of grey nurse sharks.
- Throughout this case it has seemed to us that there is a real problem with the basis of the claim. To the extent to which a case could be made out that the activities of the OTLF were detrimental to the survival of grey nurse sharks, the evidence gives little reason for confidence that the measures proposed would halt this trend. For the OTLF to have no impact on grey nurse sharks, deaths attributable to the OTLF would need to cease altogether. That, of course, would not avoid what appears to be almost inevitable extinction as the result of other causes. However, the measures which the Conservation Council proposes will not reduce deaths from the OTLF to nil. The ocean is too large and the proposed protected areas too small.
- For a time we wondered whether the only proper result in this case would be to refuse to make a declaration. The likely consequence of that would be to have the OTLF operating as it is now, but to preclude the export of spanner crabs and other sea life caught in the fishery. The catching of spanner crabs presents no danger to grey nurse sharks.
- We have ultimately concluded that the correct decision is that the operation of the OTLF is not detrimental to the survival of grey nurse sharks when compared with the position they would otherwise be in. Given the uncertainty of the evidence before us, and notwithstanding the precautionary principle, we consider that the potential impact of the OTLF compared to the effect of outside factors is such that we are satisfied in terms of the section.
- We are also satisfied that the operation meets the other environmental objects in s 303FN(3). It is not detrimental to the conservation status of grey nurse sharks, nor is it likely to threaten any relevant ecosystem as a result of its impact on grey nurse sharks. We are satisfied that the operation is generally consistent with the objects of Part 13A.
- We have earlier referred to the requirements of ss 303FN(3), (4) and (5) other than detriment to the survival of the taxon. We have reviewed our earlier observations in the light of our ultimate findings and analysis. We make positive findings on all these matters including the necessary findings of satisfaction to warrant the making of a declaration. We have also considered the precautionary principle. We have taken the principle into account in all that we have considered. However, application of the principle does not lead us to a different result when we take into account all the matters before us, including the present state of the grey nurse shark population and its risks from other factors.
- Although it has not been central to our consideration we have, in coming to our conclusion, noticed that the relevant object of the Act is not exclusively the protection of wildlife. The Act recognises and regulates commercial activities respecting wildlife. The subdivision in which s 303FN appears is particularly concerned with this activity.
- There will be circumstances (e.g. Brown v Forestry Commission (No 4)  FCA 1729) in which two causes independently give rise to detriment where only one potential detriment falls within the s 303FN tests. In such a case it will be no answer to the relevant detriment that there is also an irrelevant detriment. However, that is not the case here. The additional measures proposed by the Conservation Council are accepted by them to lead to satisfaction that there is no detriment. However, we find that they will give rise to no measurable change. The complementary proposition seems to be that the present operation is not independently detrimental. Moreover, we are not here dealing with independent causes at all. This is because the real risk comes from the already depleted population together with the biology of grey nurse sharks.
- There are two problems with the whole of this case and the way it was presented. First, the claim as put really was a simple claim that the Tribunal should increase the protection of grey nurse sharks: not to a level at which they would necessarily survive; not even to a level where improvement could necessarily be expected. The claim was intended to impact on all causes of non-natural death. However, the Tribunal does not have power to consider the position of grey nurse sharks generally. It can only act in accordance with its jurisdiction and powers conferred by statute. It has no power to consider all causes of non-natural death. Secondly, what is required is consideration of a wildlife trade operation and assessment of whether it satisfies the legislative tests. The odd condition might be imposed to ensure that the operation passes the test. However, the legislation does not contemplate a commission of enquiry which engages in the detailed analysis which has occurred in this case. Neither the Minister nor this Tribunal on review is concerned with detailed management. A claim which requires eighteen fishing sites to be examined with care, on the basis that protection around some sites should be increased by 500 metres or a little more and some presently unprotected sites should be added, requires attention to detail which would rarely lead to a change from non-compliance to compliance. We note that the Minister did not address the claim on this basis. His basis for approaching the claim seems to us to be the correct basis, namely allowing the New South Wales Department to address issues and then evaluate the result. We do not think that the legislature would have contemplated the kind of enquiry we have engaged in. If the Minister could not be satisfied after a broad examination of the operation and its management, the proper course would normally be to refuse the declaration. However this is not a result which was really contended for before us.
- This case, as it was presented, was even more complicated. It was not in fact a competition between sizes and numbers of zones. At the time the Minister made his decision, the protected zones, by reason of other management decisions, were much more extensive than that. This is because of the Marine Parks and Aquatic Reserves. This regime is constantly changing. The protections were extended while we were hearing the case. More is to occur by 16 November 2007. The analysis we have made of the eighteen sites and of the position with hooks and wire trace shows very extensive attention and a multiplicity of provisions being extended all the time rather than a simple set of provisions for habitat protection sites and the gear that can be used.
- The Minister’s decision was made on 27 July 2006. It only extended to 14 December 2007. The shortness of the period no doubt reflected the changes that were proposed relating to the protection of grey nurse sharks. It enabled the Minister to see how the further measures proposed or required were carried into effect. This application was heard as soon as the parties could get the matter ready for hearing. However, the decision will be made only two months prior to the expiration of the declaration. The Conservation Council, if it was successful, asked that we make a declaration for a further period. Even if we had upheld its claims we would not have been minded to make a declaration for a period which extended past the expiry of the Minister’s declaration. That was itself a protection. Although it has not been one of our primary considerations the fact that the period of the declaration is short must nevertheless be a factor which has some impact on detriment.
- We have already concluded that the Minister could be satisfied that a declaration should be made, although further measures were to be introduced, even it the content of these measures was unknown. This can particularly be so when the declaration is for a short term as it is here. It is to be remembered that the Minister and the Tribunal are engaged in administrative decision-making. Administrative decision-making inevitably involves discretions. This is why the Full Federal Court (Bowen CJ and Deane J in Drake v Minister for Immigration & Ethnic Affairs  AATA 179;(1979) 46 FLR 409 at 419) referred to the Tribunal’s role as arriving at the correct or preferable decision. The latter implies a discretion. Discretionary administrative decision-making also implies the possibility of policy playing a role. None of this is intended to suggest that the requirements for the decision-maker’s satisfaction under s 303FN are other than absolute. However, what amounts to satisfaction and what factors may be taken into account in achieving satisfaction are not so certain. The Minister will not be entitled to take into account irrelevant matters, nor to leave relevant matters out of account. However, there will be a discretion, particularly at the level of satisfaction, in the sense that not all decision-makers will necessarily come to the same conclusion. The Tribunal, on review, is in no different situation. One matter which may be taken into account is any proposal for change in the short term. The question is whether the appropriate level of satisfaction is reached with respect to the operation as a whole, not with respect to the precise management regime at any particular time. Vague proposals for change in the future would not be appropriately taken in account, but immediate proposals for definite change may be.
- The result we have arrived at leaves the New South Wales Department of Primary Industries with all the obligations it had under the Minister’s declaration. It must meet the deadline set by condition 6. These will involve further closures. The extent of closures effected will no doubt be heavily influenced by the views of Dr Otway, some of which are summarised in these reasons. We expect they will be at least what Dr Otway advocated in these proceedings.
- Some of the material before us suggests that the Department was proposing to agree to further closures in consultation with fishers. We wish to make it quite clear that we do not intend that condition 6, which becomes our condition as a result of this review, will permit a negotiating process between fishers and the Department. The test is an objective test relating to the risk of detriment to grey nurse sharks. There is no room for compromise. We are not opposed to the Department seeking evidence from fishers and others as to what is required to satisfy the legislation in the long term. However, there should be no give and take negotiations with the object of leaving fishers disappointed, but resigned. The only basis for closures is the objective test of the legislation.
- There should accordingly be no problem with the New South Wales Department complying with condition 6 on time. Assuming an application is made for a further declaration, the extent of the further closures introduced and the terms of the targeted monitoring program will no doubt be taken into account.
- Finally, we wish to make a comment about the general position of grey nurse sharks. There is no doubt that the population of grey nurse sharks off the east coast of Australia is critically endangered. The underlying claim made in this case was that measures should be taken generally in an effort to avoid their extinction. We agree. However, our task is to make a decision about whether to declare a wildlife trade operation to be an approved operation. That does not involve matters outside the relevant operation, which is the New South Wales Ocean Trap and Line Fishery. We are not even determining how that fishery should be managed. We are not, therefore, authorised to consider what general measures should be taken to protect grey nurse sharks. We are, however, in no doubt that if grey nurse sharks are to survive off the east coast of Australia, further urgent steps need to be taken. Nothing in our decision suggests that this is not so. It is just that this Tribunal is not the body to carry out the task.
- The decision of the Minister for Environment and Water Resources made on 27 July 2006 by which he declared the operation of the New South Wales Ocean Trap and Line Fishery to be an approved wildlife trade operation is affirmed.