Chapter 6 Governance, environmental policy and the way forward
Australia’s enormous coastline and the vast oceans in its exclusive
economic zone create considerable governance challenges, above and beyond the
challenges to fisheries management posed by our federal system. Australia’s governance
arrangements have various historical origins, including pre-federation
responsibilities, constitutional reform over many decades, the elaboration of
international law, and the progress of scientific discovery.
The preceding chapters discussed the role of science for fisheries
management and aquaculture in considerable depth. The way that science is
integrated into government policy and the administration of policy is complex,
especially as sustainability concerns have grown in relative importance in
recent decades. Although governance arrangements are chiefly a matter of
legislation and policy, their structure and operation are profoundly influenced
by our knowledge of the natural world. This chapter will consider how
governance arrangements can best serve the appropriate integration of science
into managing Australia’s fisheries and aquaculture industry.
Numerous ongoing shortcomings in Australia’s fisheries governance
arrangements were identified throughout the inquiry. Whilst many of these shortcomings
have neither easy nor obvious solutions, reform can be advanced in an
This chapter will discuss issues highlighted to the Committee in the
- multi-jurisdiction management
of single fisheries;
- the interactions
between fisheries management policy and environmental policy; and
- the separate
administration of fisheries management and environment protection, both within
the federal bureaucracy and between jurisdictions.
Governance specific to the aquaculture sector is discussed in Chapter 4.
Additionally, towards the end of the inquiry, the Minister for
Agriculture, Fisheries and Forestry, Senator the Hon Joe Ludwig, announced a
review of the Australia’s fisheries management system. This review will also be
Lastly the chapter contemplates a possible way forward for fisheries
management, aquaculture and recreational fishing in Australia.
Whilst the Australian Government has effective jurisdiction over most of
its waters, the majority of fisheries production value comes from State-managed
fisheries. As pointed out the Fishery status reports 2010:
The gross value of production of Commonwealth fisheries has
been stable over the last five years, estimated at $316.7 million in 2009–10.
This represents 15 per cent of the total value of Australian fishery
Within the Commonwealth fisheries, most of the value comes from four
The Northern Prawn Fishery, Southern and Eastern Scalefish
and Shark Fishery, Southern Bluefin Tuna Fishery and the Eastern Tuna and
Billfish Fishery were the four most valuable fisheries, contributing 77.7 per
cent of the value of Commonwealth fisheries production.
Evidence to the inquiry frequently pointed out the artificiality of
Australia’s internal borders. Whilst Australia has a social need for
jurisdictional boundaries, these lines are often irrelevant – or unrelated to –
the natural world. Hence, Australia’s constitutional arrangements give
authority over a single ‘natural’ fishery to numerous governments. As noted by
the Hon Harry Woods (FRDC), this arrangement is ‘not always [a] good thing,
because the fish do not know the borders.’
In general, State, Territory and Commonwealth fisheries are managed
through a mixture of input controls (such permits and licences) and output
controls (such as size, catch and possession limits). Rules and regulations
vary among jurisdictions and for particular species or locations, with fishing
operators obliged to comply accordingly. Complexities can arise when a target
species has a habitat crossing jurisdictional lines.
The Department of Agriculture, Fisheries and Forestry submitted that
multi-jurisdiction fisheries are generally avoided by the use of Offshore
Constitutional Settlement arrangements:
When a fishery falls within two or more jurisdictions, an
Offshore Constitutional Settlement (OCS) arrangement is generally developed and
responsibility is passed to one jurisdiction. OCS arrangements are usually
defined in terms of species, fishing method and area and form the basis for
ongoing cooperation between governments who share the management
responsibilities. Alternatively, a Joint Authority may be formed whereby a
fishery is co-managed through the legislation of one jurisdiction.
Currently there are 59 fisheries OCS arrangements in place
between the Commonwealth, states and the. Northern Territory, Under the terms
of these arrangements, the states and Northern Territory generally manage
coastal, slow moving or inshore species such as rock lobster and abalone, while
the Australian Government manages deepwater or migratory species subject to
international agreements such as orange roughy, tuna and billfish throughout
However, this is not always possible, particularly where a fishery is
large and when numerous states are involved. A prominent example is the
southern rock lobster fishery, which comes under the jurisdiction of three
states (Victoria, South Australia and Tasmania).
Evidence from Mr Richard Stevens, of the Western Australian Fishing
Industry Council, highlighted the interconnectedness of fisheries even with
Western Australia’s considerable isolation from other parts of Australia:
Yes, across the Great Australian Bight there is a southern
rock lobster fishery, a small one from Esperance to the bight. There are
obviously the migratory species, which tend to be managed by the
Commonwealth—the jack mackerel, the blue mackerel, the southern bluefin tuna,
the other tuna. Between us and the Territory you have the Spanish mackerel.
There is an argument that some of the deepwater snapper go right through the
tropics and into Indonesia as well. There is the shark fishery in the north,
which again crosses state and international boundaries.
AFMA explicitly submitted that it ‘is of the view that the current suite
of OCS arrangements do not deliver efficient and cost effective management of
fish stocks.’ Further, AFMA noted, ‘too
often a commercial fisher has to hold a fishing concession from more than one jurisdiction
to fish the same fish stock.’
The World Wildlife Fund agreed that the current system of fisheries
management is impacting on the fishing industry and also the sustainability of
fisheries that cross borders:
Fisheries science and management in Australia is typically
fishery or jurisdiction-centric. However, increasingly, science is being asked
to answer questions on a regional or ecosystem basis that involve overlapping
fisheries and jurisdictions. Existing science and management structures and
legislation, which generally operate in 'silos', are not well-equipped to deal
with this, and there is no efficient and effective mechanism for dispute
resolution or negotiation among jurisdictions and stakeholders interacting in
the same ecosystem.
To deliver more sustainable outcomes, the adoption of a
cumulative approach to scientific research in fisheries would necessarily
entail greater cooperation at all stages in the science and management
The following section will detail the evidence collected about potential
simplification and standardisation of fisheries management in Australia,
including current efforts by various governments. Environmental policy
interactions with fisheries management are then considered.
Simplification and standardisation of fisheries management
A number of witnesses drew attention to the amount of effort and expense
required to meet legislative and other requirements demanded of fisheries
management in Australia. By simplifying fisheries management some witnesses
argued that this could make available more funds for scientific research to
progress the industry.
The FRDC cited a report it commissioned in 2009 to assess the impact of
current management arrangements on the economic performance of Australian fisheries.
According to the FRDC submission:
The report concluded that Australia’s commercial wild-catch
fisheries across all jurisdictions were under-performing compared to their
potential. The value of this under-performance gap across all fishery users was
in the order of $416 million per year, or more than $1 million forgone per day.
Mr Ian Thompson (DAFF) said that fisheries are recognised as having a
‘high level’ of regulation.
He said Council of Australian Government’s Primary Industries Standing Committee:
...will look at deregulation, regulation streamlining,
consistency or institutional frameworks which may make fisheries regulation
more streamlined and more efficient.
The Commonwealth Fisheries Association (CFA) expressed its displeasure
with the contemporary tendency for AFMA’s funding going towards ‘overheads...
rather than science.’
Dr Nick Rayns (AFMA) explained arrangement’s for the Authority’s
The fishing industry does pay levies to the government which
the authority receives through its appropriation. They constitute about half
of the costs of managing domestic fisheries, and currently that is running at
about $13 million a year. In terms of research, though, they pay
disproportionately. Probably 75 per cent of our research budget is industry
Emeritus Professor Bob Kearney (retired, private capacity) said that
Australian fisheries are ‘very close to the best managed’ in terms of
protecting biodiversity and sustainability. However, he was concerned that the
industry had not been able to expand:
...unfortunately, they are not well managed at all when it
comes to the economics of ensuring the viability of the industries themselves.
In fact, the problem there is that most of our fisheries are overcapitalised
and Australia does not have a strategic approach to the management of our total
fishery. As such, there has been virtually no development of new fisheries in
Australia for the last 15 or 20 years, and the strategic issues, the
big-picture issues, of how we manage our fisheries and the level of the
industry’s involvement in that have been totally neglected.
Professor Kearney commented that ‘there is no Australian fishing
industry’, but instead ‘a collection of different fisheries’ and ‘not even a
national fishing industry body’.
Other witnesses argued that development of fisheries management cannot
be progressed with current constitutional arrangements demarcating
responsibility without regard for the permeation of ecosystems.
Dr Nick Rayns (AFMA) described the Offshore Constitutional Settlement
(OCS) as being ‘highly complex’ and causing ‘a lot of difficulty for industry’
as this necessitates holding ‘multiple concessions to fish the same fish
stock.’ He said there are almost 60 agreements between the Commonwealth and
Professor Euan Harvey (UWA Oceans Institute) said:
One of the big problems... is that ecosystems based fisheries
management needs to transcend both state and federal boundaries. A fish does
not really care that there is a 200-metre mark; it just happens to swim across;
it does not know it has gone from federal to state waters. ...you need to look
at a way of integrating the management concepts across federal and state
Two submissions from private individuals with fisheries backgrounds
suggested that Australia should have a single fisheries science and management
department, based on models in New Zealand, Norway, the United States and
According to the CSIRO:
No arrangements currently exist to provide a forum for
identifying integrated strategic marine management or for setting spatial
management across multiple sectors.
Dr James Findlay (AFMA) cited the Australian Fisheries Managers Forum as
an example of cooperation, though the case remains that fishers ‘might require
four or five different licences to use the same boat in the same place catching
the same things.’
Mr Brian Jeffriess (CFA) agreed that a more uniform approach to rules
and regulations among jurisdictions would be ‘easier’ and ‘makes sense’. He
said: ‘We as an industry cannot understand why that issue is not being
Not all witnesses were supportive of having uniform and standardised
legislation. ‘There will be specific species on which it may be appropriate to
head in that direction in specific fisheries and others probably not,’
said Mr Robert Gott (Tasmanian Department of Primary Industries, Parks, Water
and the Environment). Mr Gott said he could understand the industry’s position
in relation to dealing with multiple jurisdictions, but believed such a move
would be costly:
The caution that I urge my colleagues is that this is not
simple and is not something where one size fits all, and the complexity and the
resources required to head off down a path to achieve it are significant. That
needs to be considered in the case of Tasmania where our resources are
shrinking to the point where our capacity to engage in significant policy
development work involving changes to legislation, changes to business rules,
changes to information technology systems comes against that significant cost.
Mr Neil Stump (Tasmanian Seafood Industry Council) agreed: ‘be careful
what you wish for because you might get it,’ he said. Mr Stump said there has
been ‘enough trouble trying to do that at a regional level’, such as with
abalone, where size limits vary locally depending on growth rates.
Standardisation would ‘probably not’ improve management outcomes, he said.
Mr Warwick Nash (Queensland Department of Agriculture, Fisheries and
Forestry) said any decision on standardisation of rules and catch limits for
fish species ‘needs to be based around their biology.’
I used to work in the abalone fishery in Tasmania. One of
the striking things about that fishery is that you have abalone growing to
different sizes in different parts of the state and reaching sexual maturity at
So a single size limit for the different areas of the state
just did not make sense because, for a given size limit, you had populations
that were not protected at all—they had not had a chance to reproduce at all
before they entered the fishery—and in other areas they would have been
reproducing for many years before they entered the fishery. I think the same
pattern applies to some of our fisheries along the eastern coast of Australia.
Mr Nash said there may be merit in other aspects of standardisation,
such as for registering boats and improving the exchange of fisheries data
between jurisdictions and institutions.
However, evidence from a number of governments highlighted the work
currently being done to improve regulatory efficiency across all jurisdictions.
Evidence from AFMA highlighted the progress that it and the NSW Government are
In New South Wales we are committed to a set of principles
about stock based management and we are even undertaking a single stock
assessment at the moment for a number of the species. New South Wales used to
do a stock assessment and we used to do one and then compare scientists at 10
paces. We are actually getting over all of that now, but there is still a long
way to go.
A specific example of collaboration was provided by the South Australian
Government. In the case of the southern rock lobster fishery, the governments
of South Australia and Victoria are working together to reduce inefficiencies:
...South Australia is undertaking rock lobster assessments
for the Victorian rock lobster fishery, with additional fisheries likely to be
assessed under similar contractual arrangements in the future.
A high-level focus on productivity, through the Council of Australian
Governments (COAG), is also seeking to improve fisheries regulation:
Under the Primary Industries Standing Committee, we are
pursuing a fisheries productivity agenda with the states which will look at
deregulation, regulation streamlining, consistency or institutional frameworks
which may make fisheries regulation more streamlined and more efficient. We
have also been speaking to colleagues in the environment department about how
we can better align fisheries management arrangements and environmental
protection arrangements, and similar agendas occur at the state level. ABARES
is also commencing a study relating to fisheries regulation, looking at the
costs of the current regulatory framework, compliance with it and the extent to
which it could be improved. It is very early days. The work has barely started,
but we see it fitting into the work that we are doing with the states.
It is considerably difficult to understand the relationships and
hierarchies between governments, research institutes and industry in the
fisheries and aquaculture sector. There is also a lack of clarity about the
strategic direction of scientific research priorities and the scientific
principles behind fisheries management practices.
Whilst the Committee received varying evidence about the complexity of
Australia’s fisheries management arrangements, there is an obvious lack of data
about the inefficiencies of the current system. The Committee is supportive of
ongoing efforts to harmonise fisheries management across multiple
jurisdictions, but acknowledges that no single jurisdiction has a monopoly on
As discussed in Chapter 2, there is also a need to assess the efficiency
of the industry and to investigate whether its current structure and size is
In order to properly understand the size of these problems, the
Committee believes that a review should be undertaken into the current
structure of the industry across Australia and the efficiency and effectiveness
of the inter-jurisdictional governance arrangements for Australian fisheries
(particularly as they relate to fisheries that exist in multiple
jurisdictions). Such a review could be led by the Productivity Commission. The
review could also look at existing Offshore Constitutional Settlement
arrangements, and assess their contribution and suitability for encouraging
efficient fisheries management in Australian waters.
The Committee recommends that the Treasurer refer to the
Productivity Commission an inquiry into the efficiency of the fisheries
industry across Australia and the efficiency and effectiveness of the
inter-jurisdictional governance arrangements for Australian fisheries.
Fisheries management and environmental policy interactions in Australia
This section summarises the objectives of fisheries management and related
environmental legislation in Australia and then outlines its historical
development. Stakeholder’s views are then given on the separate administration
of fisheries management and environmental approvals.
The objectives of environmental and fisheries legislation
In Australia, fisheries are managed towards multiple economic, social
and environmental objectives. This requires a balance to be struck between
maximising net economic returns, improving accountability, and ensuring
environmental protection and conservation. Despite the need to balance multiple
aims and the different focuses of each Act, there is a common thread between FM
Act, the FA Act and the EPBC Act in terms of the need to
adhere to the principles of ecologically sustainable development (ESD)
and ecosystems-based management (EBM).
The objectives within the FM Act require the Minister and AFMA to
- implementing efficient and cost-effective fisheries
management on behalf of the Commonwealth; and
- ensuring that the exploitation of fisheries resources and
the carrying on of any related activities are conducted in a manner consistent
with the principles of ecologically sustainable development (which include the
exercise of the precautionary principle), in particular the need to have regard
to the impact of fishing activities on non-target species and the long term sustainability
of the marine environment; and
- maximising the net economic returns to the Australian
community from the management of Australian fisheries; and
- ensuring accountability to the fishing industry and to
the Australian community in AFMA’s management of fisheries resources; and
- achieving government targets in relation to the recovery
of the costs of AFMA.
The FM Act also requires the Fisheries Minister, AFMA and Joint
Authorities to ‘have regard’ to the additional objectives of:
- ensuring, through proper conservation and management
measures, that the living resources of the AFZ [Australian Fishing Zone] are
not endangered by over-exploitation; and
- achieving the optimum utilisation of the living resources
of the AFZ; and
- ensuring that conservation and management measures in the
AFZ and the high seas implement Australia’s obligations under international
agreements that deal with fish stocks; and
- to the extent that Australia has obligations –
- under international law; or
- under the Compliance Agreement or any other
international agreement; in relation to fishing activities by
Australian-flagged boats on the high seas that are additional to the
obligations referred to in paragraph (c)—ensuring that Australia implements
those first-mentioned obligations; – but must ensure, as far as practicable,
that measures adopted in pursuit of those objectives must not be inconsistent
with the preservation, conservation and protection of all species of whales.
The FM Act requires AFMA to ‘determine plans of management for all
fisheries.’ Once in place, following consultative and other processes: ‘AFMA
must perform its functions, and exercise its powers, under this Act in relation
to the fishery in accordance with the plan of management.’
As well as fisheries management focused legislation, approval of
fisheries management plans are subject to separate environmental assessments in
accordance with the EPBC Act.
The first three objectives of the EPBC Act are:
- to provide for the protection
of the environment, especially those aspects of the environment that are
matters of national environmental significance; and
- to promote
ecologically sustainable development through the conservation and ecologically
sustainable use of natural resources; and
- to promote the conservation
of biodiversity; ...
Within the three related Acts – the FM Act, the FA Act and
the EPBC Act - common thread between them of ESD is replicated and
defined in the same terms, as:
processes should effectively integrate both long-term and short-term economic,
environmental, social and equitable considerations;
(b) if there are threats
of serious or irreversible environmental damage, lack of full scientific
certainty should not be used as a reason for postponing measures to prevent
(c) the principle of
inter-generational equity—that the present generation should ensure that the
health, diversity and productivity of the environment is maintained or enhanced
for the benefit of future generations;
(d) the conservation of
biological diversity and ecological integrity should be a fundamental
consideration in decision-making;
valuation, pricing and incentive mechanisms should be promoted.
The objectives listed above and the related fisheries and environmental
policy have a long history. The key historical documents include the:
- 1989 Fisheries ‘New
Directions’ Policy Statement;
- 1991 FM Act and FA
- 1995 International
Code of Conduct for Responsible Fishing
- 1997 Managing
Commonwealth Fisheries committee report;
- 1998 Oceans Policy;
- 1999 EPBC Act;
- 2000 Commonwealth
Policy on Fisheries Bycatch
- 2003 ‘Looking to the
Future: A Review of Commonwealth Fisheries Policy’
- 2007 ‘Harvest
- 2007 ‘Guidelines for
the Ecologically Sustainable Management of Fisheries’;
In 1995, Australia agreed to the Code of Conduct for Responsible
Fishing, a voluntary international instrument adopted at the UN Food and
Agriculture Organisation (FAO) Conference by 170 member governments. The Code
outlines standards for fisheries management, conservation, trade and
aquaculture, amongst others; Article 6.1 states: ‘The right to fish carries
with it the obligation to do so in a responsible manner so as to ensure
effective conservation and management of the living aquatic resources.’
The Australian Government’s 1989 Fisheries Policy Statement - New
Directions for Commonwealth Fisheries Management – recognised the relationship
between environmental protection and fisheries by stating:
The full range of marine ecosystems must be protected so as
to maintain biological food chains and associated habitats and to ensure
The 1989 Statement also recognised the need to create the Australian
Fisheries Management Authority. This was achieved with passage of the FM Act
and FA Act in 1991. The Statement advocated that the creation of this
new body was necessary to ‘streamline the administration of management
programs’ and also to ‘enable the Government to effect its responsibilities in
a flexible open and less bureaucratic way’.
Notwithstanding acknowledgement in the 1989 statement of the need to
balance protecting the environment and maximising the fishing industry’s
economic efficiency, tensions persisted. These tensions were a major theme in
this Committee’s 1997 report entitled ‘Managing Commonwealth Fisheries’.
The 1998 Oceans Policy pronounced the need for bioregional planning to
achieve environmental outcomes:
At the core of the Oceans Policy is the development of
Regional Marine Plans, based on large marine ecosystems, which will be binding
on all Commonwealth agencies.
In 1999, the EPBC Act was a major reform of how Australia
approached environmental regulation. It also added a new dimension to fisheries
management by widening responsibility to include the environment portfolio
(currently SEWPaC), whereas historically fisheries agencies had had sole
All of AFMA’s fisheries management plans are subject to the requirements
of the EPBC Act and are accredited under Part 10 (strategic assessment),
Part 13 (wildlife interactions) and Part 13A (export approval).
This also extends to fisheries in State and Territory waters: fisheries
in all Australian jurisdictions must undergo an initial assessment; thereafter
agencies may supply annual assessments, starting with a simplified report and,
if changes occur, graduating to additional comprehensive reports.
The Commonwealth Policy on Fisheries Bycatch was released in 2000, which
aimed to achieve ‘bycatch reduction, improved protection for vulnerable and
threatened species and minimising adverse impacts of fishing on the marine
environment’. The primary reason
behind the policy was to ‘ensure that direct and indirect impacts on marine
systems are taken into account and managed accordingly’.
The last major review of Commonwealth fisheries policy occurred in 2003 with
the release of the ‘Looking to the Future’ report. This review confirmed
commitment to the concept of ecosystem-based fisheries management. The report
stated that DAFF and AFMA:
...will continue to contribute towards the integration of
Commonwealth fisheries policy arrangements with new and emerging national
policy initiatives relevant to marine resources management, including ecosystem-based
fisheries management, bycatch, regional marine planning, marine protected areas
and the development of an updated National Coastal Policy.
However, management of Commonwealth fisheries reached a low point during
the mid-2000s. AFMA’s 2003-04 Annual Report stated:
Stock assessments and scientific analysis increasingly
confirm the view of the AFMA Board – that Australia’s fish resources have now
reached the limit of their sustainable exploitation in most Commonwealth
fisheries. In general, catches cannot be increased in the short term, and for
some stocks, must be further reduced.
In the same report, AFMA recognised the need to increase its efforts and
introduced the concept of the ecological risk management (ERM) framework:
AFMA is also advancing ‘ecosystem based’ approaches to
fisheries management. This means managing the impacts of fishing on target
species, non-target species and the broader marine environment. Underpinning
this approach are ecological risk assessments (ERAs) for fisheries to identify
In November 2005, a structural adjustment package totalling $220
million, mostly comprising exit assistance, was offered to businesses and
communities affected by the impact of reduced access to certain fisheries at
risk of overfishing. At the same time, AFMA was issued with a Ministerial
Direction pursuant to s.91 of the FA Act to recover the overfished
stocks and develop a best practice harvest policy. A later evaluation of this
approach in 2010 found that in general, ‘net economic returns have improved in
the post-buyback period’, which was linked to ‘fishery level cost decreases
associated with reductions in vessel numbers as well as other factors including
positive impacts from environmental and stock variation and previous management
The ‘Guidelines for the Ecologically Sustainable Management of
Fisheries’ were released by SEWPaC in 2007 to assist with the process of
compliance with aspects of the EPBC Act.
The Harvest Strategy Policy (HSP) was also released in 2007. It states
that harvest strategies should ‘control the fishing intensity in order to
achieve defined biological and economic objectives’ to achieve ‘the sustainable
and profitable utilisation of Australia’s Commonwealth fisheries in perpetuity’.
A qualification in the HSP noted that it is one mechanism among others to
achieve ecologically sustainable and profitable fisheries.
The design of the harvest strategy is based around a calculation of:
n maximum economic
yield (MEY) and
n maximum sustainable
When there is excessive fishing effort, fish stocks decrease, dollar
returns decline and costs rise. This is illustrated by the figure below (the
abbreviations are prefixed with ‘R’ for ‘return’ and ‘E’ for ‘effort’):
Figure 3 Harvest Strategy Policy yield model
‘Commonwealth Fisheries Harvest Strategy: Policy and Guidelines’, September
Regarding the 2007 Harvest Strategy Policy, Dr James Finlay (AFMA) said
it, ‘sets some very tight rules about what we are trying to achieve’.
The Harvest Strategy Policy and the Commonwealth Policy on Fisheries
Bycatch were currently under review at the time this inquiry was conducted.
In 2010 the result of this long history of developing in fisheries
management and related environmental legalisation was that 13 fisheries were
regarded as overfished or subject to overfishing (compared to 24 in 2005) and
the number of uncertain status fisheries also reduced to 27 (down from a peak
of 52 in 2007).
The Australian Bureau of Agricultural and Resource Economics Sciences’
(ABARES) 2010 Fisheries Status Report attributed these improvements to the:
2005 Fishing Future buyback; AFMA’s imposition of stricter management measures
(catch reductions, area and depth closures); and DAFF’s 2007 Harvest Strategy
Policy, amongst other actions.
The CSIRO’s submission agreed that there has been progress:
Australia’s fisheries jurisdictions have adopted
ecosystem-based fisheries management as a policy goal. This is consistent with
demand for environmentally friendly produced products. Spatial management and
participatory or co-management are also key features of the fishery management
system. Our fisheries are well managed by global standards.
Separate administration of fisheries management and environment protection
The administration of fisheries management and environmental protection
activities is separated within the federal administration itself, and also
between state and federal governments. These divisions have been the focus of
significant public comment and also in evidence presented during this inquiry.
The Australian Government administers its fisheries management and marine
environment protection responsibilities separately: the former through the
Australian Fisheries Management Authority, the latter through the Department of
Sustainability, Environment, Water, Population and Communities (SEWPaC). As
noted above, these responsibilities are legislated, respectively, through the Fisheries
Administration Act 1991, the Fisheries Management Act 1991
and the Environment Protection and Biodiversity Conservation Act 1999 (EPBC
In 2009, the Hawke Review of the EPBC Act found that:
The Act has made a major contribution to shifting fisheries
management from a target species-based
management approach towards ecologically sustainable practices... Following
application of the Act, the environmental performance of Commonwealth-managed fisheries improved
The Hawke review addressed the issue of overlap between fisheries
management and national environmental protection (both State and Commonwealth).
The review noted the concerns of industry, as well as State and Territory
governments, that the separate administration of the EPBC Act can cause
additional assessments and potential ‘double jeopardy’.
However, the Review did not accept that a case for major change had been
made, stating that:
fisheries assessments under the EPBC Act should
continue to be conducted independently of fisheries management agencies.
However, with the knowledge gained from several rounds of fishery assessments,
improvements could be made to streamline and refine the assessment process
without compromising environmental outcomes.
The report stated that if duplication were to be reduced, this should
not be at the expense of the EPBC Act’s standards.
However, the Review did recommend that the EPBC Act:
Be amended so that the fishery provisions under Parts 10, 13
and 13A are streamlined into a single strategic assessment framework for
Commonwealth and State and Territory-managed fisheries to deliver a single
assessment and approval process.
The Government has formally responded to the recommendations of the
Hawke Review, and has also engaged with the Council of Australian Governments
to progress a streamlining agenda for environmental approvals. The Government’s
position and progress of the COAG initiative are discussed below, following
consideration of evidence to the inquiry.
The debate over the separate administration of fisheries management and
environmental legalisation, as well as measures available to minimise
unnecessary regulatory burden, were a prominent theme of this inquiry. Much of
the evidence to the inquiry contested the view that the separation of
environment protection and fisheries management continued to provide benefits.
AFMA, in its submission, remained concerned that ‘the duplication of
process and poor specification of the EPBC Act in relation to fisheries
remains.’ AFMA argued that while the EPBC Act ‘adds an additional layer
of bureaucracy’, it ‘does not fill any gaps in fisheries legislation regarding
the objectives relating to resource sustainability.’
AFMA submitted that:
arguments for the application of the EPBC Act to
fisheries have been around transparency of process and decision making,
involvement of conservation stakeholders, preventing marine species from going
extinct and providing a 'level playing field' for all native species being
exported from Australia. In AFMA's case in the 1990s and early 2000s there was
a perception from some stakeholders that the Authority's Board was industry
dominated and therefore biased in its decision making.
In 2008, following the Uhrig Review, AFMA moved from being a Commonwealth
Authorities and Companies Act 1997 agency to a Financial Management and
Accountability Act 1997 agency. In doing so the AFMA Board became a
Commission and its membership changed to reflect these new arrangements
including that industry office bearers cannot serve as Commissioners.
Dr Nick Rayns (AMFA) told the Committee:
We would like to see the change go a bit deeper than the
Hawke review has done... We are almost both doing the same thing in quite a few
areas. Sustainable fisheries is our business and we would like to see our agency
placed in a position of leading that business, with support from the
environment agency—perhaps more in an audit role, if that is appropriate, but
certainly not in a direct fisheries management role.
Dr Rayns also stated that AFMA is using money and time to satisfy the
requirements of environmental legislation, which, given ‘that AFMA is a
cost-recovery agency... a lot of the time we are also talking about the fishing
AFMA elaborated on this issue in a supplementary submission to the
...AFMA is currently assessed under three parts of the EPBC
Act. ... Although these assessments have been completed for all
Commonwealth-managed fisheries, there is a requirement for further assessments
when management arrangements change substantially. Removing this requirement
and relying on the management plan public comment process and other
environmental assessments under Parts 13 and 13A of the EPBC Act would
significantly streamline the process for introducing or amending management
Ms Trixi Madon (CFA) said that the Hawke Review of the EPBC Act
had made a recommendation ‘about streamlining the two Acts... but still not at
the priority level we would like to see’.
Mr Brian Jeffriess (CFA) said that although the EPBC Act has
‘some real benefits to fisheries’, there should be legislative reform. He
identified two areas that are ‘taking money away from scientific research’:
obligations for assessments. There is a need for ‘internal rationalisation’ of
the EPBC Act to reduce overlapping obligations to routinely conduct
similar assessments of the same fisheries (such as tuna, which Mr Jeffriess
said is covered by four individual assessments). He said there should be
‘internal rationalisation’ and;
- ‘duplication between
the FM Act and the EPBC Act’. Mr Jeffriess argued that Fisheries
Management Act should be the primary point of accountability and the EPBC
Act’s provisions should be a ‘last resort’.
IMAS was also not convinced that fisheries legislative and policy
objectives work in unison. IMAS stated in its submission:
The management of fisheries harvests in all Australian
jurisdictions involves a hierarchy of decision-making with protection of [the]
ecosystem and biodiversity placed above [the] sustainable economic performance
Professor Harvey (UWA Oceans Institute) expanded these ideas further,
There is a need for a greater integration of fisheries and
environmental legislation between all levels of government and within the levels
of government. One of the biggest challenges that we are facing over here is
the disconnect between some of the environmental legislation and some of the
fisheries legislation. They do not align, they do not work together, they work
in opposition and they do not create certainty. In fact, people spent a lot of
time and wasted a lot of money.
Mr Ian Thompson (DAFF) told the Committee there are no
plans to dispense with the FM Act or the EPBC Act; however, he
said there is an idea of having a process of mutual recognition of assessments.
He said he did not believe that present legislative arrangements are
‘wholly inefficient’, although:
The industry have drawn to our attention opportunities for
improvements where they see similar activities being regulated under different
pieces of legislation that could be more streamlined.
Mr Thompson added:
We have also been speaking to colleagues in the environment
department about how we can better align fisheries management arrangements and
environmental protection arrangements, and similar agendas occur at the state
Mr Stephen Oxley (SEWPaC) informed the Committee that the Australian
Government is hopeful of moving to an audit role, rather than continuing with
active assessment, through building capacity and confidence in management
systems. Mr Oxley said that the Australian Government is considering whether
‘we can get to the point where fisheries management regimes in toto are
assessed or accredited... so we do not have this continuing system of the
assessment of individual fisheries one by one’.
Mr Oxley noted that the Australian Government has made a full response
to the Hawke Review, and agreed in principle to the streamlining recommendation.
However, as detailed in the Government’s response:
The government agrees with the intent of this recommendation,
but notes that the fisheries assessment provisions under the EPBC Act serve
different functions—for example, ecological communities and listed migratory
species in a Commonwealth area (Part 13), strategically assessing impacts on
matters of national environmental significance (Part 10), and ecologically
sustainable management of commercial export fisheries (Part 13A).
The government supports reducing the administrative and
regulatory process involved in fishery assessments, including through less
frequent assessments of well-managed fisheries.
In streamlining these provisions, it will be essential to
preserve the above functions. In doing this, the government recognises that any
legislative changes will need to be consistent with the extent of Commonwealth
constitutional power, as well as with Australia’s Offshore Constitutional
Settlement on provisions governing fisheries operating in Commonwealth or
Consistent with Recommendations 4 and 6 [relating to
strategic assessments and the accreditation of state approvals processes], the
government supports in principle a progressive shift under the amended Act from
individual assessments of fisheries to accreditation of fisheries management
arrangements. The government will ensure that the amended Act provides the
appropriate legislative capabilities for this to occur.
In addition to better coordination between fisheries management and
environmental administration at the Commonwealth level, there have been
advances by COAG towards streamlining environmental approvals.
In April 2012, ‘COAG agreed to prioritise the development of assessment
and approval bilateral agreements under the EPBC Act.’
Towards this end, in November 2012 Australian Government released a draft Framework
of Standards for Accreditation of state assessment processes. The framework
is expected to be finalised by December 2012.
The Committee notes the evidence calling for fisheries management and
environment protection to be undertaken by a single agency within the
Australian Government. The Committee also notes the view of the Hawke Review
that these responsibilities continue to be administered separately.
Whilst a single administrative body would likely provide administrative
efficiencies, the Committee is aware of the considerable improvements to
fisheries sustainability that have occurred as a result of the separate
administration of the EPBC Act from the FM Act. The Committee
does not believe that, at this time, there is enough evidence to support a move
to abolish the separate administration of the EPBC Act requirements from
the FM Act requirements.
However, the Committee believes that progress can be made at an
administrative level to provide the industry with a more streamlined process.
This should include working towards a single application process and
potentially a single point of contact with the Australian Government for
fisheries approvals. Ideally the aim should be towards a ‘one-stop-shop’
arrangement from an applicant’s perspective; with any necessary co-ordination
between government agencies happening behind the scenes as much as possible.
The Committee also notes the broader recommendation to allow greater
accreditation of State environmental assessment processes, and looks forward to
seeing this advance through the Council of Australian Governments, noting the
Minister’s release of a draft Framework of Standards for Accreditation
of state assessment processes on 2 November 2012.
The Committee recommends that the fisheries management and environment
protection responsibilities of the Australian Government continue to be
administered by separate agencies, but that these agencies work towards a
single application process (and potentially a single point of contact) for
fisheries approvals, with the aim of providing a ‘one-stop-shop’ from the
During the inquiry the absence of a peak national body for fishing
(across all sectors) that could provide central representation became evident.
This proved a challenge for the Committee in terms of identifying a cohesive
national position from fishing stakeholders. It may also be part of the
difficulty with communication between government and fishing stakeholders.
There are some representative bodies at a national level and peak bodies within
the States, but these groups are relatively fragmented and appear to lack the
resources to coherently address high-level strategic policy relevant to
fisheries. If a peak fishing body could be established it may be well-placed
to participate in discussions to set national research and development
The Committee recommends that commercial fishing
organisations in Australia form a national peak body. This process could be
initially assisted by the Department of Agriculture, Fisheries and Forestry through
facilitating contact and coordination.
Review of Australia’s fisheries management system and amendments to the EPBC
The Minister for Agriculture, Fisheries and Forestry Senator the Hon Joe
Ludwig announced a review of Australia’s fisheries management system on 13
The review was announced in the context of recent amendments to the EPBC
Act, and the national debate on the arrival of the ‘super trawler’ in
In order to properly understand the circumstances of the fisheries
management system review, the EPBC Act amendments will firstly be outlined
below, followed by a description of the fisheries review’s terms of reference.
Amendments to the EPBC Act
Amendments were made to the EPBC Act, by the passage of the Environment
Protection and Biodiversity Conservation Amendment (Declared Commercial Fishing
Activities) Bill 2012 (the Amendment Bill). The amendment Bill was
passed by Parliament, and entered into force on 19 September 2012.
The amended EPBC Act provides for the Environment Minister and
Fisheries Minister jointly:
to declare a commercial fishing activity, to be a ‘declared
commercial fishing activity’ on an interim basis (interim declaration) if both
Ministers agree that:
- there is uncertainty
about the environmental impacts of the commercial fishing activity;
- it is appropriate to
consult with fishing concession holders who consider themselves to be
detrimentally affected by the making of a final declaration for the same
fishing activity (declaration affected person); and
- the declared
commercial fishing activity should be prohibited while consultation occurs.
The amended Act also enables:
the Minister, with the agreement of the Fisheries Minister,
to declare a commercial fishing activity to be a declared commercial fishing
activity for a period of no longer than 24 months (final declaration) if both
Ministers agree that:
- there is uncertainty
about the environmental impacts of the commercial fishing activity;
- it is appropriate to
establish an expert panel to conduct an assessment of the commercial fishing
- the declared
commercial fishing activity should be prohibited while the expert panel
conducts its assessment of the commercial fishing activity.
Other provisions of the Amendment Bill provide for a 12-month
sunset clause on the declaration provisions, create civil penalties
for engaging in a declared fishing activity, and provide for the establishment
of the expert panel, as well as the publication and tabling of its report.
Terms of reference for the fisheries management review
The terms of reference provide for a review of the principle legislation
that governs the Australian Government’s fisheries management, being the Fisheries
Management Act 1991 and Fisheries Administration Act 1991.
The terms of reference note that the advice from AFMA to the Minister is
limited, particularly in relation to the operation of the ‘precautionary
principle’. The terms of reference further note that:
As a consequence, the powers of the Minister to make
decisions based on the precautionary principle are therefore equally limited in
their scope, and the community is exposed to a less than sustainable model of
In detail, the terms of reference direct the review to:
- Recommend changes to
the Acts that clearly establish the Fisheries Management Act 1991 as the
lead document in fisheries management, and that all aspects of environmental,
economic, and social consideration, and the relevant planning processes
required be incorporated into the Acts, in a co-ordinated way;
- Recommend any
necessary changes to the Acts that affirm the powers of a Minister to take
advice, and make decisions, with the full scope of the precautionary principle
available within the Fisheries Management Act 1991, and that same
definition of the precautionary principle apply in both the Fisheries
Management Act 1991 and the Environment Protection and Biodiversity
Conservation Act 1999; and
- Consider the need for
modernising Commonwealth fisheries resource management legislation and
approaches including penalty provisions, licence cancellations, the use of
modern technology and co-management. Consideration of cost recovery
arrangements will include consideration of the degree to which cost recovery
might impact on the management of fisheries including investment in research
and stock assessment.
The review is due to be completed by 13 December 2012, with any
necessary legislative changes presumably to be introduced into Parliament early
in 2013. The review notes that subsequent changes to the EPBC Act may
also be necessary.
The Committee notes that the review of the fisheries management system
will consider the interaction of the fisheries legislation with the EPBC Act,
itself the subject of the recent Hawke Review.
Without pre-empting the outcomes of the review, the Committee looks
forward to seeing improvements in the coordination of fisheries management and
environment protection responsibilities between AFMA and SEWPaC and for greater
clarity about the division of these responsibilities between ministers and
The Committee notes the points made leading up to the establishment of AFMA
as an independent statutory authority in the 1989 New Directions for
Commonwealth Fisheries Management policy statement. The Statement argued
that one of the strengths of setting up a statutory authority was ‘less need
for the Minister to become involved in day-to-day decision making’.
The Committee believes that fisheries management should not be subject
to political direction, except as provided by law. The Committee has every
confidence that AFMA has the capability to fulfil its responsibilities
according to its legislative objectives. Fisheries should not be managed by
making exceptions to the rules depending on the weight of interests at stake.
The Committee recommends that fisheries management should
not be subject to political direction, except as explicitly provided for in
The way forward
Fisheries management, aquaculture development and the pursuit of higher
environmental standards have a long history in Australia - as detailed
throughout this report.
There have been numerous policy statements, legislative changes and
reviews conducted over the last two decades.
However, throughout this inquiry the Committee heard of the ongoing complexity
and confusion surrounding the overarching national policy objectives for how we
manage our fish.
The Committee is heartened that this problem may be partially remedied
by the current review of Australia’s fisheries management system and by the
work under COAG to streamline environmental assessment processes. The Harvest
Strategy Policy and Bycatch polices are also currently under review. However,
the Committee notes that all of these activities remain focused on individual
parts of the puzzle.
The Committee has made a number of recommendations throughout this
report that would contribute in part to overcoming the challenges of developing
good policy, including:
- that a dedicated and
detailed national aquaculture plan be developed to guide the future of the
sector and help it reach its full potential;
- that the Productivity
Commission be asked to review efficiency of the fisheries industry across
Australia and the efficiency and effectiveness of the inter-jurisdictional
governance arrangements for Australian fisheries; and
- that several regular
publications are compiled to improve the data available for good policy
development, including reporting on:
- the total
national investment in fisheries and aquaculture RD&E;
national stock information reporting; and
and aquaculture industry statistics.
Even if fully implemented, however, the Committee believes that these
initiatives and those already underway by governments would not overcome the
current stakeholder confusion or the absence of an overarching national policy
Therefore, the Committee feels that a comprehensive national regional
policy statement needs to be developed that covers fisheries, aquaculture and
recreational fishing in one place. The statement also needs to work across
jurisdictional boundaries, between Federal and State/Territory approaches. The policy
statement needs to encourage and have actions to support the highest quality
science, capitalising on Australia’s already strong and internationally
recognised capacity for research.
Despite the complexities faced within these sectors, a comprehensive
national regional policy statement needs to pull the threads together and present
a national vision for the future. Together these sectors are vital to our
economy and our communities - and untapped potential remains. But this potential
will only be achieved if all stakeholders come together to get the statement right
and then work together to make the statement a reality.
The Committee recommends that the Australian Government,
through the Council of Australian Governments, lead the development of a comprehensive
national regional policy statement for fisheries, aquaculture and
recreational fishing, which includes:
overall statement of strategic intent to drive future direction;
new guideline on precaution; and
research, development and extension work program.