Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
Chapter 15: Biodiversity – Marine and Fisheries
Key points

The EPBC Act requires the Australian Government to assess the environmental performance of fisheries
and promote ecologically sustainable management. Almost all wild capture fisheries have undergone
independent environmental performance assessment.

Some submissions expressed the view that the interaction between the EPBC Act and the Fisheries
Management Act 1991 (FMA) needs to be further streamlined.

Decisions whether to list marine fish as threatened species under the EPBC Act are currently subject to
criteria primarily developed for terrestrial species.

The establishment of a National Representative System of Marine Protected Area (NRSMPA) network is
being progressed as part of the marine bioregional planning process.

Australian native species listed in either appendices of the Convention on the Conservation of Migratory
Species of Wild Animals (Bonn Convention) must be included in the list of migratory species established
under the EPBC Act. The Act does not currently reflect the different perspectives and protection measures
outlined in Appendix I as opposed to Appendix II of the Convention.
Fishery assessments
Current provisions of the Act
15.1
The management of Australian commercial fisheries is the responsibility of the State, Territory and
Commonwealth fisheries management agencies. The EPBC Act requires independent assessment of the
environmental performance of management arrangements for Commonwealth fisheries and State and
Territory fisheries that export product, to ensure that, over time, Australian fisheries are managed in an
ecologically sustainable manner. Assessments are conducted against the Australian Government
Guidelines for the Ecologically Sustainable Management of Fisheries – 2nd edition.1
Strategic assessments
15.2
All Commonwealth-managed fisheries are required to undergo a strategic assessment under Part 10 of
the EPBC Act before the Australian Fisheries Management Authority (AFMA) can determine a plan of
management for a fishery under the FMA. Strategic assessments of commercial fisheries include
assessing the impacts of the fishery on the Commonwealth Marine Environment – a matter of NES
under the EPBC Act.
15.3
To date, a total of 18 Commonwealth-managed fisheries have undergone strategic assessment under the
EPBC Act.2 A similar assessment process is also conducted for State-managed fisheries.3
Part 13A assessments
15.4
1
All fisheries which export product must undergo assessment under Part 13A of the EPBC Act to
determine the extent to which management arrangements will ensure that the fishery is managed in an
ecologically sustainable way. Assessments can result in one of three decisions:

exempt – the fishery is being managed in an ecologically sustainable way. Export of product from
the fishery is allowed for up to five years; or

Wildlife Trade Operation – the fishery is consistent with the objectives in the EPBC Act however
there are some uncertainties and further action required. Export of product from the fishery is
allowed for up to three years, subject to conditions; or

prohibited – the fishery has significant environmental impacts and export is not permitted.
The Guidelines are available at: http://www.environment.gov.au/coasts/fisheries/index.html
A list of Commonwealth-managed fisheries and the assessment documentation is available at:
http://www.environment.gov.au/coasts/fisheries/commonwealth /index.html
3
To date, a total of 102 State and Territory-managed fisheries have undergone assessment under the Act. A list of State and Territory
fisheries and assessment documentation is available at: http://www.environment.gov.au/coasts/fisheries/index.html
2
15.5
Fisheries are re-assessed periodically, depending on the quality of their environmental management
practices, to determine whether export of product from the fishery will be allowed to continue.
Protected species provisions
15.6
Fisheries operating in the Commonwealth marine environment are also assessed under Part 13 of the
EPBC Act to determine whether all reasonable measures are being taken to avoid the incidental capture
of protected species.4 A fishery can be accredited under the EPBC Act on the basis that the management
plan or regime requires all reasonable steps to ensure that members of protected species are not
adversely affected by the fishing operation. Once a management plan or regime is accredited, operators
are exempt from the offence provisions of Part 13 for interactions with protected species in
Commonwealth waters, providing the action is taken in accordance with the fishery’s management plan
or regime and any interactions are reported.
Key points raised in public submissions
15.7
Generally, public submissions found many positives with the accreditation process for fisheries under
the EPBC Act.5 However, suggestions were also provided to improve the fishery assessment process.
Interaction between the FMA and the EPBC Act
15.8
The fishing industry argues that it is important for the Australian Government to determine clearly
defined legislative responsibility for management of fisheries, as it was suggested that there is currently
a significant degree of duplication between the Department of the Environment, Water, Heritage and
the Arts (DEWHA), the Department of Agriculture, Fisheries and Forestry (DAFF) and AFMA. The
Commonwealth Fisheries Association described this duplication as a ‘double jeopardy’ whereby
Commonwealth fisheries must be assessed under both the EPBC Act and the FMA:
despite meeting the sustainability objectives of the FMA 1991, the fishing industry is being further assessed
under the EPBC Act, which is effectively creating a ‘double jeopardy’ situation.6
15.9
The fishing industry noted the need to harmonise the EPBC Act and the FMA, particularly since the
current provisions make it possible for a fishery to meet all the requirements of the FMA and then fail
to obtain export approval under the EPBC Act. Additionally, the point was raised that fisheries
management operates, at least in part, on cost recovery and responding to the fishery assessments under
the EPBC Act is costly.
Fishery provisions under the EPBC Act
15.10
Most submissions were supportive of the strategic assessment of fisheries. However, concern was
raised that these assessments have been subject to industry pressure. To this end, some submissions
called for the review to examine how to ensure that strategic assessments are based upon robust and
comprehensive information,7 while others suggested a more risk-based approach to the assessment
process to ensure that it is efficient and cost-effective.8
15.11
Some submissions argued that the EPBC Act and the imposition of conditions and requirements
replicate fishery provisions and requirements of State/Territory laws in many key aspects, thereby
creating undue regulatory complexity and administrative burden. 9
15.12
Concern was also raised about the exemption from offences for killing threatened marine, migratory
and cetacean species under Part 13 of the EPBC Act where this occurred during commercial fishing. It
was suggested that fishing industries should have to employ proven mitigation measures if they are to
be exempted from the offences for killing threatened species. 10
‘Protected species’ means all species listed under Part 13 of the EPBC Act, including whales and other cetaceans and threatened, marine
and migratory species. See Chapter 12 of this report for further information.
5
See e.g. Submission 079: Commonwealth Fisheries Association; Submission 173: Conservation Council (Western Australia); and
Submission 201: Government of Western Australia.
6
Submission 079: Commonwealth Fisheries Association, p.6.
7
Submission 188: Nature Conservation Council of New South Wales.
8
See e.g. Submission 172: Department of Sustainability and Environment (Victoria).
9
Submission 214: Australian Fisheries Management Forum.
10
Submission 182: Humane Society International.
4
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
Senate inquiry into the operation of the EPBC Act
15.13
In its report, the Senate Committee recommended the ‘government review the interaction between the
EPBC Act and the FMA in relation to the conservation of fish species and relevant assessment
processes.’11
15.14
The Senate Committee noted that there appears to be ongoing concern among fishery managers
regarding conflict and overlap between the EPBC Act and the FMA. However the Committee reported
that it was not in a position to assess whether the matters raised by stakeholders represented undesirable
duplication, or if parallel assessment processes were necessary to ensure all aspects of fisheries
conservation are properly considered and addressed.
Discussion of key points
15.15
The status of Australian fish stocks is better than many countries. Reports on Commonwealth
commercial fisheries by the Bureau of Rural Sciences show a steady increase in the number of species
considered to be overfished.12
15.16
To comply with the principles of ecologically sustainable development, decision-makers must ensure
that fishing activities do not pose a risk of unsustainable or unacceptable impacts on the marine
ecosystem. Ecological sustainability can only be achieved and maintained through an integrated
approach to fisheries management that considers all the natural and anthropogenic impacts on
ecosystem components including by catch, by-product and ecologically related species.
15.17
On one view, the EPBC Act has made a major contribution to shifting fisheries management from a
target species-based management approach towards ecologically sustainable practices, which involves
increased focus on the biological sustainability of both target stocks and other components of marine
ecosystems. This view was supported in submissions to the Senate Inquiry into the operation of the
EPBC Act by WWF and the DAFF.13
15.18
Consistent with this view, fishery assessment requirements under the EPBC Act are said to have been
critical in promoting improvements to the biological sustainability of fisheries and the environment in
which fisheries operate. The 2006 State of the Environment report was positive about the EPBC Act’s
role in fisheries, describing the Act as providing a ‘comprehensive assessment of fishery operations and
management, including the effects of fishery operations on non-target species and ecosystems.’14
15.19
In a similar vein, the Humane Society International’s submission strongly supported ‘retention of the
strategic assessment process for fisheries and the requirement for the Environment Minister to approve
Commonwealth and export fisheries for their ecological sustainability’ which it regarded as
‘instrumental in driving significant improvements in the way Australia’s Commonwealth and export
fisheries are managed.’15
15.20
yet it is noted that no fishery was prohibited from Part 13A export during the first round of fishery
assessments despite the fact that DEWHA acknowledged that ‘from the outset it was clear that many
fisheries would face challenges in demonstrating ecological sustainability.’ 16
15.21
Important aspects of fishery assessments under the EPBC Act are that:
15.22
11

the assessment is independent of fishery management, but undertaken collaboratively;

they are criteria based; and

recommendations and/or conditions can be placed on fishery declarations to ensure continuous
improvement of fishery management arrangements.
DEWHA advises that in 2007, consultation with fishery managers, industry and environmental groups
resulted in a revised administrative approach to the fishery assessment process under the EPBC Act–
by updating the Guidelines for the Ecologically Sustainable Management of Fisheries (2nd edition).
The updated guidelines state that future fishery submission requirements will be streamlined and align
with each jurisdiction’s annual reporting requirements. This should allow fishery managers to focus
The Senate Standing Committee on Environment, Communications and the Arts, The operation of the Environment Protection and
Biodiversity Conservation Act 1999: First report (2009) http://www.aph.gov.au/senate/committee/eca_ctte/epbc_act at 4 May 2009, para
[4.33].
12
The Bureau of Rural Sciences Fishery Status Reports are available at: http://www.daff.gov.au/brs/fisheries-marine
13
Senate Committee Report, Submission 81 (WWF Australia), and Submission 84 (Colong Foundation for Wilderness).
14
Robert JS Beeton, Kristal I Buckley, Gary J Jones, Denise Morgan, Russell E Reichelt, Dennis Trewin, Australia State of the Environment
2006 (2006), p.99. Available at: http://www.environment.gov.au/soe/20 06/publications/report/land-1.html
15
Submission 182: Humane Society International, p.35. See also submission 201: Government of Western Australia.
16
Caitlin Barry ‘An appraisal of the Department of Environment and Heritage’s Strategic Assessment Process for Australian Fisheries’
(2006) 12 Waves 1, p. 2.
further resources on continuous improvement within each fishery. Further, to assist with streamlining
the fishery assessments conducted under the EPBC Act, Part 10, 13, 13A assessments are conducted at
the same time on the basis of a single submission from fishery managers.
15.23
Noting the above, some submissions still expressed concern about a lack of harmonisation between the
EPBC Act and the FMA. In its submission to the Senate Inquiry into the operation of the EPBC Act,
DAFF advised that:
additional regulatory arrangements for fisheries such as the response to strategic assessments, wildlife trade
operation approvals and threatened species listings requires a very considerable investment of resources on
behalf of fisheries management agencies which commonly operate, at least in part, on a cost-recovery basis.17
15.24
Further, the Commonwealth Fisheries Association (CFA) recommended that:
the Government initiate a comprehensive and transparent review of the interaction of the EPBC Act and the
FMA 1991 with the objective of eliminating areas of duplication in preference for a more complementary
legislative framework.18
15.25
The Commonwealth Fisheries Harvest Strategy Policy (HSP), discussed in further detail later in this
chapter, attempts to integrate key relevant requirements of the FMA and the EPBC Act to provide a
collaborative Australian Government approach to fisheries management. The HSP provides clarity on
the relationship between fishery management and the EPBC Act through assessing the conservation
status of commercially harvested fish species under the EPBC Act. The strategy provides a degree of
policy alignment between the criteria used to set catch levels and those used to determine protected
status of threatened species.
15.26
However a harvest strategy is only part of a fishery management plan and only relates to key target
species. Fisheries management and assessments need to address issues that are not covered within a
harvest strategy, such as the broader environmental impacts of fishing.
15.27
On balance, the fishery assessments conducted under the EPBC Act are viewed by fishery managers,
industry and conservation groups as being effective in shifting management focus towards ecosystembased approaches.19 Independent fishery environmental performance assessments are an important tool
used by the Commonwealth and should continue to ensure continuous improvement of fisheries
management arrangements. However, noting comments raised by the commercial fishing industry,
opportunities to harmonise administrative arrangements further should be examined. This may include
investigating further risk-based approaches to fishery management to ensure cost-effectiveness and
ecologically sustainable management.
15.28
Another possibility is to consider an integrative model, similar to that recommended by the Beale
review. One of the key recommendations of the Beale review included integration of the
Commonwealth’s biosecurity activities within a new National Biosecurity Authority, responsible for
administration of a new Biosecurity Act. While similar principles could apply for streamlining the
fishery assessment provisions under the FMA and the EPBC Act, the governance arrangements for
fishery management, both at the Commonwealth and State level, are significantly different, particularly
in relation to the use of the ‘co–management’ model with industry. Integration within a single body
could, over time, limit the creative policy tension brought about by the existing ‘external audit’ model.
The Beale review is discussed in further detail in Chapter 18 of this report.
15.29
Assessments can be time consuming and relatively costly to undertake to a high standard.
Implementation of recommendations and conditions also takes time. Several government submissions
raised concerns about the short ‘return interval’ of some assessments. 20 More effective risk management
approaches to setting the period for re-assessment of fisheries may be warranted. This and associated
administrative arrangements to enhance efficiency will be examined further during this review.
Protected species provisions
15.30
17
In regard to exemptions from Part 13 offences for killing threatened species, fisheries operating in
Commonwealth waters are assessed under Part 13 of the EPBC Act to determine whether all reasonable
measures are being taken to avoid the incidental capture of protected species. Only when it is
determined that a fishery’s management arrangements take all reasonable steps to ensure that
threatened marine, migratory or cetacean species are not killed or injured as a result of fishing, will a
Senate Committee Report, Submission 86 (Department of Agriculture, Fisheries and Forestry), p.5.
Submission 079: Commonwealth Fisheries Association, p.7.
19
See e.g. Submission 182: Humane Society International; Submission 201: Government of Western Australia; and Submission 203:
Australian Southern Bluefin Tuna Industry Association.
20
See e.g. Submission 172: Department of Sustainability and Environment (Victoria); Submission 199: Government of South Australia;
Submission 201: Government of Western Australia; and Submission 214: Australian Fisheries Management Forum.
18
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
fishery be accredited under Part 13 of the Act. Additionally, fishery assessments may also include
conditions and/or recommendations to improve fishery management arrangements, including improving
mitigation measures to avoid interactions with protected species.
15.31
The provisions relating to the environmental performance of fisheries in the Act are confusing given
that they occur in different parts of the legislation. In particular, the use of the wildlife trade provisions
to extend environmental performance assessment to state managed fisheries is, while constitutionally
valid, cumbersome. There appears to be an opportunity to simplify these arrangements significantly by
incorporating them into a single strategic assessment framework.
Listing of marine fish
Current provisions of the Act
15.32
An important mechanism for identifying and protecting Australia’s biodiversity is through declaring
threatened species and ecological communities as a matter of NES on a number of different lists under
Part 13 of the EPBC Act. Further information on the biodiversity lists and the listing process can be
found in Chapter 12 of this report. Section 180 of the EPBC Act contemplates regulations prescribing
criteria for the listing of threatened native species of marine fish. To date, this section has not been
utilised and listing of a number of native species of marine fish has been progressed using the existing
criteria under the EPBC Regulations. 21
The Commonwealth Fisheries Harvest Strategy Policy (HSP)22
15.33
To satisfy a requirement of a Ministerial Direction to AFMA, the Australian Government released the
HSP in September 2007. The HSP provides a framework for the development of harvest strategies for
key commercial species taken in Australia’s Commonwealth fisheries.
15.34
The HSP sets boundaries for managing harvest levels by setting agreed target and limit reference points
and clear decision rules for each species. Target limit reference points (BTARG) express the desired status
of stocks while limit reference points (BLIM) express situations where the risk to the stock is
unacceptably high. In relation to ‘at risk’ stocks, the HSP requires that for a stock that falls below a
limit reference point, targeted fishing ceases; AFMA, in agreement with the Minister for the
Environment, must develop a stock rebuilding strategy to rebuild the stock to a target reference point. A
stock that falls below B LIM is also eligible for consideration for listing in the conservation dependent
category of the EPBC threatened species list. Once a stock is above the limit reference point it may be
appropriate for targeted fishing to re-commence in accordance with the rebuilding strategy.
15.35
The HSP also states that if a stock biomass falls substantially below the limit reference point, then the
species will likely be considered for listing in a higher threat category (i.e. vulnerable, endangered or
critically endangered) under the EPBC Act. Where the biomass is above a limit reference point and
rebuilding towards a target limit reference point, consideration could be given to deleting the species
from the list of threatened species under the EPBC Act, or amending the category it is in.
Key points raised in public submissions
Listing criteria for marine species
15.36
The current listing criteria for threatened species under the EPBC Regulations were developed from the
International Union for Conservation of Nature (IUCN) criteria primarily for terrestrial species. The
fishing industry argues that this is not appropriate for marine bony fish or other commercially harvested
marine species. Those arguing in favour of developing specific criteria for marine fish claim it would
provide confidence that nominations will be assessed objectively on a scientifically rigorous and
biologically relevant basis. The CFA recommended that:
DEWHA should immediately acknowledge the flaws in applying the current listing criteria to commercially
harvested marine species and in consultation with stakeholders, develop and implement specific agreed criteria
that reflect the biology of marine species and brings Commonwealth fisheries and environmental management
into harmony.23
21
Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) Division 7.1.
The Commonwealth Fisheries Harvest Strategy Policy is available at: http://www.daff.gov.au/fisheries/domestic/harvest_strategy_policy
23
Submission 079: Commonwealth Fisheries Association, p.5.
22
15.37
On balance, submissions appear to support specific criteria for marine fish. However, concerns were
raised about the inconsistency of listing approaches between terrestrial and marine species. The Nature
Conservation Council of NSW argued that:
in practice the different standing given to marine species has made it more difficult for marine species to be
listed, partly due to pressure from the fishing lobby. This inconsistency should be rectified by making the listing
process the same for both marine and terrestrial species.24
Category of threat
15.38
The 2006 amendments to the EPBC Act introduced new provisions especially for the listing of
commercially exploited marine fish to deal with the political difficulties involved. The Humane Society
International (HSI) noted that:
prior to the 2006 amendment a species could only be listed in the ‘conservation dependent’ category if it did not
qualify for listing in a higher category. This remains the case for all species other than marine fish. 25
15.39
As HSI argued, ‘the 2006 amendment now specifically allows for commercial fish to be listed as
conservation dependent so that fishing may continue, albeit with increased oversight from DEWHA’.
HSI continued ‘it should be a requirement that all species are listed in the highest category for which
they meet the criteria.’26
Delays in listing commercially fished marine species
15.40
In 2007 the Auditor-General reported that ‘progress in the listing of marine fish species, particularly
species that are commercially caught, has been slow.’27 As at 30 June 2006 there were nine marine
species under consideration for listing. The Australian National Audit Office (ANAO) noted that ‘these
commercially fished species are recognised as over-fished by the Bureau of Rural Sciences. The
average time elapsed for these species to be processed, so far, has been approximately four years.’28
15.41
The Auditor-General went on to note that:
in some cases, species identified by the TSSC as being ‘vulnerable’ or ‘endangered’ were identified in 2001, yet
a decision has not been made, some five years later. Delaying a decision is likely to increase the risk of
extinction or result in higher recovery costs in the future.29
15.42
Since the Auditor-General reported, three commercial fish species have been listed under the EPBC
Act30 while the Patagonian toothfish was recently determined not to be eligible for listing (i.e. not
threatened). Additionally, the Department has advised that the remaining fish nominations (for
example, Harrison’s and Endeavour dogfish) are progressing as part of the Threatened Species
Scientific Committee (TSSC) priority assessment list and are currently on schedule.
Interaction between the listing process and fishery assessments
15.43
Submissions expressed the view that there is a need for fishery assessments and nominations for listing
marine fish species to be integrated fully under the EPBC Act. For example, AFMA’s submission to the
Senate Inquiry into the operation of the EPBC Act argued that:
AFMA’s fisheries are covered by assessments under Part 10, Part 13 and Part 13A … to have the individual
species within those fisheries separately assessed [through nominations for species listing] brings into question
the value of these other assessments.31
15.44
24
Similarly, it was argued that under current practice a fishery’s management arrangements can be
accredited as sustainable under the EPBC strategic assessment (Part 10) provisions but may have to
undergo a different process for listing threatened species. It was suggested by industry and management
interests that a one-off assessment that satisfied both the ecologically sustainable development
principles of the FMA and the EPBC Act, without a separate process for threatened species listing,
would be desirable. This issue is examined further in relation to the HSP.
Submission 188: Nature Conservation Council of New South Wales, p.7.
Submission 182: Humane Society International, p.26.
26
Submission 182: Humane Society International, pp.26-27.
27
Australian National Audit Office Audit Report No 31 of 2006-07, The Conservation and Protection of National Threatened Species and
Ecological Communities, para [2.26].
28
Australian National Audit Office Audit Report No 31 of 2006-07, The Conservation and Protection of National Threatened Species and
Ecological Communities, para [2.26].
29
Australian National Audit Office Audit Report No 31 of 2006-07, The Conservation and Protection of National Threatened Species and
Ecological Communities, para [2.34].
30
Green sawfish (vulnerable), school shark (conservation dependent) and eastern gemfish (conservation dependent).
31
Senate Committee Report, Submission 59 (Australian Fisheries Management Authority), p.2.
25
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
Senate inquiry into the operation of the EPBC Act
15.45
While the Senate Committee’s Report did not expressly address issues specific to marine fish, the
Committee made a general recommendation that ‘the process for nomination and listing of threatened
species or ecological communities be amended to improve transparency, rigour and timeliness.’32
Discussion of key points
Listing criteria for marine species
15.46
As outlined in a number of public submissions, the provisions of the EPBC Act reflect the historic
focus on threats to terrestrial species and may not necessarily be appropriate for native species of
marine fish. Once a species meets any of the criteria in the EPBC Regulations the species can be listed
as vulnerable, endangered or critically endangered.
15.47
The primary criticism made by the fishing industry and fishery managers is that most nominations for
listing marine species are pinned on one of the prescribed criteria in the EPBC Regulations: ‘[the
species] has undergone, is suspected to have undergone or likely to undergo in the immediate future: a
[level of severity] reduction in numbers.’33 It is suggested that commercial fish species can
automatically be nominated based on this criterion, due to the inherent nature of fishing which reduces
the numbers of individuals over a particular period of time. 34
15.48
The fishing industry also claims that the current criteria may not always lead to an equally robust
assessment of extinction risk, which the fishery industry claim is dependent upon the life history of the
species. For example, the thresholds outlined in the criteria may not be appropriate for assessing the
risk of extinction to those species with high reproductive potential, fast growth and broad geographic
ranges. But it is worth noting that most of the marine fish species considered for listing to date have not
had these biological characteristics, rather they have all been long-lived, slow growing with low
reproductive productivity (for example, Orange Roughy, school shark, Southern Bluefin Tuna).
15.49
Beyond the potential for a native species of marine fish to be listed as conservation dependent under the
EPBC Act, the HSP only provides minimal guidance about when a species might be eligible for listing
as vulnerable, endangered or critically endangered. The HSP states that ‘if the stock biomass falls more
substantially below BLIM, there is an increased risk of irreversible impacts on the species. As such the
species will likely be considered for listing in a higher threat category (i.e. vulnerable, endangered or
critically endangered)’. The HSP also states that ‘while a stock biomass is above BLIM there is no
expectation that the species would be added to the list of threatened species (conservation dependent,
vulnerable, endangered, critically endangered) under the EPBC Act’.
15.50
While the approach taken by the HSP, such as the use of biological reference points, may provide a
good starting point for the development of new listing criteria for addressing native species of marine
fish under the EPBC Act, the policy does not provide effective guidance on listing species as
vulnerable, endangered or critically endangered. Additionally, the HSP is only applicable to the subset
of key commercial species so bycatch species are not covered. The HSP also may not apply to
internationally managed fisheries such as the southern bluefin tuna fishery and does not apply to Statemanaged fisheries. Further, for species without robust stock assessments, the application of HSP is
currently of limited value in determining stock status.
15.51
Internationally, there has been significant expert debate surrounding the development of threatened
species criteria specific to marine fauna. Debates in both the International union for Conservation of
Nature (IUCN) and the Convention on International Trade in Endangered Species of Wild Fauna and
Flora (CITES), while acknowledging a range of complexities in the application of criteria to marine
fish, have been unable to develop an agreed solution.
15.52
The IUCN criteria for listing species provide a standard platform in order to compare population
dynamics and survivorship in different regions. While some of the criteria may appear inappropriate for
certain taxa, there should be criteria appropriate for assessing threat levels for any taxon. The
definitions underlining the IUCN criteria are an important aspect of how to apply the criteria for each
species.35 As a result, the criteria are capable of being flexibly applied and can take account of different
biological characteristics of species under consideration. There is merit is considering whether the
32
Senate Committee Report, para [5.35].
Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) reg.7.01
34
Submission 079: Commonwealth Fisheries Association.
35
The definitions are available at the IUCN website: http://www.iucnredlist.org/static/categories_criteria_3_1#preamble
33
IUCN criteria should continue to apply under the EPBC Act and for the listing process to work within
the IUCN framework to deliver the required flexibility.
Category of threat
15.53
The 2006 amendments introduced new provisions especially for the listing of commercially exploited
marine fish (s.179 (6)). The 2006 amendment now allows for commercial fish to be listed as
conservation dependent so that fishing (and export) may continue, subject to a plan of management that
provides for recovery of the species. Species listed as ‘vulnerable’ or higher are not allowed to be
harvested (or exported) under the EPBC Act. The 2006-07 ANAO Report (no. 31) considered that these
amendments are likely to place additional responsibility on DEWHA to monitor the effectiveness of
management plans with an assurance that management plans are working effectively over time. 36 This
is an important point as the recovery of the species is not only reliant on management plans but the
capacity for the Department and fishery agencies to monitor them actively.
15.54
While it has been argued that all species should be listed in the highest category for which they meet the
criteria, there may be occurrences where listing species as ‘conservation dependent’ and allowing
harvesting to continue is appropriate, so long as it is demonstrated that the stock is being managed
effectively to promote recovery. The policy objective should be whether the listing category promotes
effective management – the overriding aim should be species recovery.
15.55
In accordance with the stock rebuilding strategy, developed under the HSP, impacts should be managed
to allow for stocks to rebuild in order to meet the objects of both the FMA and the EPBC Act. The
stock rebuilding strategies require AFMA to report annually on stock status and performance against
the goals of the rebuilding strategy to DEWHA. Should the Environment Minister, at any time, cease to
be satisfied that a conservation program is ensuring that the species will not become ‘vulnerable’,
‘endangered’ or ‘critically endangered’ within five years, the species should be listed in a higher
category (having regard to new information available at the time).
Delays in listing commercially fished marine species
15.56
The delay in listing commercial fish species raises questions about the current listing process under the
EPBC Act.37 The Commonwealth Department’s response to the Auditor-General suggests that this very
slow progress is because it ‘considers these species to be sensitive, as they are all subject to commercial
fishing activities.’38 Additionally, in 2004, the Department requested that the TSSC withdraw its advice
on a number of nominations noting that ‘the data used to assess the conservation status of the species
was collected in 1999.’39
15.57
In regards to Orange Roughy, the Department indicated that the reasons for the delay in listing the
species were due to:
the complexity of the issues involved in potentially listing a commercially targeted fish species. During this
period the Minister sought a range of additional technical advice, and instigated extra public consultation on a
number of issues and he had to consider new management arrangements put in place by AFMA. 40
15.58
36
The Act allows the Minister to extend his 90-day timeframe for making a decision on listing a species;
however, the EPBC Act does not prescribe a deadline for the Minister to make a decision. The 2006
amendments introduced the system of listing prioritisation. While the Senate Committee indicated that
this has had a limited impact on delays in the listing of threatened species and ecological
communities,41 this provision was only introduced in 2007 and, given time, should assist with
minimising delays in listing species. Regardless, a more timely resolution of listing commerciallyexploited species is desirable and should be pursued, while still allowing the listing decision to be based
on the necessary scientific evidence. This is a key context in which the precautionary principle should
be applied to ensure that decisions are not repeatedly deferred.
The Australian National Audit Office Reports are available at http://www.anao.gov.au/director/publications/auditreports.cfm
Further information on the species listing process is available in Chapter 12 of this report.
38
Australian National Audit Office Audit Report No 31 of 2006-07, The Conservation and Protection of National Threatened Species and
Ecological Communities, para [2.32].
39
Australian National Audit Office Audit Report No 31 of 2006-07, The Conservation and Protection of National Threatened Species and
Ecological Communities, para [2.28].
40
Australian National Audit Office Audit Report No 31 of 2006-07, The Conservation and Protection of National Threatened Species and
Ecological Communities, para [2.24].
41
Senate Committee Report, para [5.29].
37
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
Interaction between the listing process and fishery assessments
15.59
The fishery assessment and species listing processes under the EPBC Act have separate legislative
requirements under the Act. Fishery assessments consider the management arrangements of a fishery
while the TSSC assesses the conservation status of a species.
15.60
While the management arrangements for a fishery operation may be assessed as sustainable, the
conservation status of individual species impacted upon by a fishery is not directly assessed during
fisheries assessments. Rather, the fishery assessment examines how the management arrangements
address the sustainability of a stock that is under pressure. If a species is subsequently listed as
threatened, the fishery could still secure export approval, provided the management arrangements are
adequate to manage that species in accordance with its listing status.
15.61
Listing is a mechanism for determining that a species requires a higher or more effective level of
management intervention. As such it can be an important part of fishery risk management. Listing
decisions should continue to be separate from management decision making, yet still inform each other.
A degree of independence is also valuable in ensuring against regulatory capture. There does, however,
appear to be scope for improved administrative arrangements and information sharing between the two
activities of government. These will be explored further during the review.
Marine Protected Areas / marine bioregional planning
Current provisions of the Act
Marine protected areas (MPAs)
15.62
A key part of the Australian Government’s conservation strategy to protect marine biodiversity is
developing a representative system of MPAs in Commonwealth waters by 2012. This is an international
commitment made by the Australian Government at the World Summit on Sustainable Development in
2002.
15.63
Establishment of the MPA network is being progressed as part of the marine bioregional planning
process, being conducted by DEWHA. There are currently 27 MPAs in Commonwealth waters,
including the South-east Commonwealth Marine Reserve Network as shown in the map below.
Current MPAs in Australia
15.64
The EPBC Act requires a management plan to be developed as soon as practicable after declaration of
an MPA. Management plans for MPAs define monitoring programs and objectives for the protected
area. The EPBC Act also includes provision for the review and ongoing adaptive management of
management plans, including consultation provisions.
Marine bioregional planning
15.65
Australia’s program of regional marine planning has been brought under the EPBC Act to provide a
clearer focus on conservation and sustainable management of the marine environment and offer greater
certainty for industry.
15.66
Creating marine bioregional plans under s.176 of the EPBC Act provides a statutory link between the
plans and the range of decisions the environment Minister must make under the EPBC Act. section 176
requires the Minister to have regard to a bioregional plan in making any decision under the EPBC Act
to which the plan is relevant, including referral decisions under Part 9 of the Act.
15.67
Marine bioregional planning aims to assist in understanding the impacts of actions on the
Commonwealth marine environment and determining the circumstances under which actions can take
place. Marine bioregional planning is the process through which the Australian Government identifies
areas within Commonwealth waters for inclusion in the NRSMPA.
15.68
Marine bioregional plans are currently underway for each of Australia’s five marine bioregions. These
are the south-east, south-west, north-west, north and east marine bioregions, as shown in the map
below.
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
Marine bioregional planning regions
Key points raised in public submissions
Marine bioregional planning
15.69
Generally, submissions noted the potential benefits associated with (marine) bioregional plans. For
example, the Australian Petroleum Production and Exploration Association suggested that bioregional
plans are ‘a significant step in providing the long term certainty needed for the development of
Australia’s oil and gas resources and meeting Australia’s significant energy needs.’ 42
15.70
It was suggested that the Environment Minister should consider any relevant marine bioregional plan
when assessing referrals. Integrating marine bioregional planning into decision-making in Part 9 of the
EPBC Act was recommended to allow consideration of cumulative impacts and improve the legislative
framework of the Act.
15.71
It was also argued that States/Territories and the Commonwealth have failed to come to arrangements
which would allow regional marine plans to cover all marine waters (i.e. including state jurisdictional
coastal waters).43 It was suggested that a mechanism for integrating ocean policy (exclusively
Commonwealth at present) with coastal zone policy (primarily State and Territory at present) should be
created.44
MPAs
15.72
Where marine reserves are in place, it was recommended that there should be a requirement to conduct
and publish the results of ongoing monitoring of the reserve in achieving its stated objectives. 45
Submissions also commented that it is important to review, evaluate and reassess the need for and
zoning of MPAs generally.
15.73
Concerns were also raised that management plans fail to consider methods other than a complete lockout (of recreational) fishers to protect biodiversity. The recreational fishing sector believe there are
42
Submission 073: Australian Petroleum Production and Exploration Association, p.22.
Responsibility for management of the territorial sea (up to three nautical miles) is delegated to the States and Territories under the
Offshore Constitutional Settlement 1979, except in the Great Barrier Reef region.
44
Submission 160: Associate Professor Geoff Wescott.
45
Submission 123: Recreational Fishing Alliance of New South Wales.
43
alternatives to a complete lock-out such as catch-and-release-only fishing zones and slot limits for
species of concern. Further, the Australian Recreational and Sportfishing Industry Confederation
(Recfish Australia), commenting on other systems of marine planning, stated that:
there is documented and anecdotal evidence that the creation of large green zones where all fishing is excluded
has a major impact on crowding anglers and commercial fishers into available fishing areas. As a result, there is
localised increase in fishing pressure which can have detrimental impacts on biodiversity. 46
15.74
The submission from the Commonwealth Fisheries Association (CFA) recommended that the
Australian Government adopt the CFA policy and key principles for the establishment of MPAs as
referenced in its submission.47 The policy outlines the terms and conditions of its support for
establishment of MPAs under the EPBC Act.
15.75
The lack of continuity between State and Commonwealth water regulations for fishing in Marine Parks,
and the significant differences between rules in State and Commonwealth waters in Marine Parks was
criticised. The Recreational Fishing Alliance of NSW cited the Booderee National Park as an example
of inconsistencies between State and Commonwealth legislation, such as bag and size limits. 48 It was
argued that this leads to confusion among fishers moving between areas and may also lead to fishers
inadvertently breaking the law.
15.76
Recfish Australia recommended ‘that any regulations on recreational fishing within Commonwealth
parks and reserves should reflect the regulations outside the park as enforced by State/Territory
fisheries legislation.’49 Recfish Australia suggested that this recommendation was justified on the basis
that State fishing laws are specifically tailored to the sustainability requirements of the species present
in an area and are readily understood and supported.
15.77
Intergenerational equity was of particular concern to recreational fishers. The recreational fishing sector
noted the ‘zealous’ intent to close large sections of coastal and inland waters to recreational fishing in
the interest of preserving biodiversity and heritage, while the valuable angling heritage is being
reduced. Additionally, some submissions did not consider it equitable that boating and scuba diving are
allowed to continue in areas from which anglers have been banned. It was argued that if these areas are
to function as true sanctuary areas, it should be a case of ‘one out, all out.’50
15.78
Submissions noted that basic information about the social and economic impact of loss of access to
traditional fishing grounds has not been collected in Australia. Some submissions also commented that
in their view, the business restructure packages associated with the rezoning of the Great Barrier Reef
Marine Park (GBRMP) in 2004 indicate that the impact, especially the economic impact, of loss of
access may have been grossly underestimated.
Senate inquiry into the operation of the EPBC Act
15.79
In the Senate Committee’s Report on their inquiry into the operation of the EPBC Act, Additional
Comments from the Australian Greens included concern about the absence of a legislative requirement
that the Minister comply with a bioregional plan (rather than simply ‘…have regard for…’).51
Discussion of key points
Marine bioregional planning
15.80
46
Bioregional plans have the capacity to address cumulative impacts under s.37A of the EPBC Act.
However, given that no plan has been completed as yet, there is currently some uncertainty as to how
those provisions would be applied. As the marine bioregional planning program rolls out around
Australian waters, the assessment and information requirements for supporting declarations under
s.37A will become clearer.
Submission 112: Australian Recreational and Sportfishing Industry Confederation, p.5.
Submission 79: Commonwealth Fisheries Association (Appendix one)
48
Submission 123: Recreational Fishing Alliance of New South Wales.
49
Submission 112: Recfish Australia, p.8.
50
Submission 112: Recfish Australia.
51
Senate Committee Report, p.104.
47
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
MPAs
15.81
In general, MPAs have been proposed throughout the world as an optimal way to protect marine
ecosystems. However to determine the effectiveness of MPAs it is essential to evaluate the MPA
performance through ongoing monitoring.
15.82
The Australian Government is committed to establishing a network of representative MPAs in the
Commonwealth marine area. The Marine Bioregional Planning program is currently in the process of
identifying areas that would be suitable as representative MPAs. Creation of new MPAs may lead to the
displacement of activities (such as commercial and recreational fishers) from traditional areas.
However, the system of MPAs is designed to protect representative areas of important ecosystems.
DEWHA advises that administrative arrangements are followed to consult with affected interests and
that impacts to activities such as fishing operations are avoided as much as possible. There is no reason
to doubt this. That from time to time some parties are unhappy with either the consultation or the
outcome is not unexpected in such cases. The important principle should be that the process is open,
transparent and reasonable.
15.83
In terms of fisheries management, it is important to consider both the social and economic impacts that
arise from declaring an MPA. While information on the range of uses in the Commonwealth marine
area has been collected, no analysis can occur about impacts of loss of access until draft MPA networks
are identified.
15.84
Where appropriate, it is important that regulations for managing MPAs in State/Territory and
Commonwealth waters are complementary to ensure that both the commercial and recreational fishing
industry are not subject to undue regulatory burden or confusion. The MPA network should reflect,
where appropriate, identified threats and risks to achieving the objectives of the MPAs that can be
addressed through other management regimes that are in place in the particular area. Exclusion of
activities should be implemented where those activities represent an unacceptable risk to the protected
area. It therefore follows that extractive uses will be more restricted than passive ones.
15.85
The articulation in the EPBC Act of a standard approach to compensation for displaced activities is
worthy of further consideration as it should provide certainty for decision-makers and affected parties
when a decision is made to declare an MPA under the Act. Similar issues may emerge as a result of the
declaration of terrestrial protected areas or for other actions made under the EPBC Act.
Migratory marine species
Current provisions of the Act
15.86
Australian native species listed under either of the Bonn Convention Appendices must be included in
the list of migratory species established under s.209 of the EPBC Act. Once listed, the EPBC Act
provisions relating to ‘listed migratory species’ would apply. These include, for instance, Part 13 of the
EPBC Act which prohibits the killing, injuring, taking, trading, keeping or moving of a member of a
listed migratory species. Listed migratory species are also a matter of national environmental
significance under the EPBC Act.
15.87
Further information on migratory species can be found in Chapter 12 of this report.
Key points raised in public submissions
15.88
Migratory species that have been categorised as being in danger of extinction throughout all or a
significant proportion of their range are listed on Appendix I of the Bonn Convention. Migratory
species that have an unfavourable conservation status or would benefit significantly from international
co-operation organised by tailored agreements are listed in Appendix II to the Convention. 52
15.89
It has been argued that the EPBC Act is going beyond its international obligations presented by the
Bonn Convention. It was suggested that the EPBC Act should reflect the different perspectives and
protection measures outlined in Appendix I as opposed to Appendix II of the Convention. The fishing
industry states that this issue was enlivened by the recent listing in Appendix II of three commercially
harvested shark species to which Australia is a range State.
15.90
Most commercial fisheries operating in Commonwealth waters have Part 13 accreditations under the
EPBC Act, allowing for incidental interactions with migratory species. However, this accreditation does
not allow for transport or sale of these species. Fishing managers argue that Australia is imposing a
52
Further information on the Bonn Convention is available at: http://www.cms.int/
higher level of protection for these species than is required under the Bonn Convention and
disadvantaging Australian fishers. It was suggested that the EPBC Act be amended to require only
native species included in Appendix I of the Bonn Convention to be included on the list of migratory
species.
15.91
In relation to another international Convention, the Humane Society International considered that the
matters of NES under the EPBC Act should be expanded to include migratory fish species listed under
Annex I of the United Nations (UN) Convention for the Law of the Sea. 53
Senate inquiry into the operation of the EPBC Act
15.92
In the Senate Committee’s Report on their inquiry into the operation of the EPBC Act, additional
comments from the Australian Greens included a recommendation to add a migratory fish trigger (as
matter of NES under the Act) for species listed under Annex 1 of the UN Convention for the Law of the
Sea.54
Discussion of key points
Migratory species listed under the Bonn convention
15.93
The EPBC Act provisions on listing migratory species could be amended to include two indices for
migratory species at different levels of risk and with different conservation and protection needs. Such
an amendment would reflect better the Bonn Convention which recognises that many animal species
are an important source of income and food for local populations. By allowing the EPBC Act regime to
adopt separate Appendix I and Appendix II lists, the Act could retain flexibility to concentrate on those
populations of species considered to be most in need of urgent protection.
15.94
While the automatic listing process should remain in place for Appendix I listings, there would be merit
in providing the Minister discretion with regard to Appendix II listings. This would provide the desired
flexibility, while retaining a capacity to list those species that require additional protection in our
region. There may however be unforeseen consequences of amending the Act to distinguish between
the two Appendices. For instance, it would need to be considered whether removal of protection
afforded to an Appendix II migratory species under the current system could lead to negative
environmental outcomes.
15.95
Rather than abandoning the current automatic listing arrangement, the scope of Ministerial discretion to
list Appendix II species as ‘migratory species’ under the EPBC Act should be considered. This could
allow consideration of the protection need of each species on a species-by-species basis. Application of
the precautionary principle under the EPBC Act may also need to be considered in this context.
Migratory species listed under UN Convention for the Law of the Sea
15.96
Under Article 64 of the UN Convention for the Law of the Sea:
the coastal State and other States whose nationals fish in the region for the highly migratory species listed in
Annex I shall cooperate directly or through appropriate international organizations with a view to ensuring
conservation and promoting the objective of optimum utilization of such species throughout the region, both
within and beyond the exclusive economic zone.55
15.97
Highly migratory species listed under Annex I of the Convention consist of tuna, marlin, sail-fish,
swordfish, shark and cetacean species.56
15.98
While some of the fish species listed in Annex I are considered overfished in Australia, the Bureau of
Rural Sciences’ 2007 Fishery Status Report classifies other species listed in the Annex as not
overfished and not subject to overfishing (e.g. Albacore tuna, skipjack tuna).57 The status of other
species is uncertain or not classified.
15.99
Considering that:

53
some migratory species in Annex I of the Convention are not threatened under the EPBC Act;
Submission 182: Humane Society International.
Senate Committee Report, Additional comments from the Australian Greens, p.103.
55
United Nations Convention on the Law of the Sea, done at Montego Bay, 10 December 1982, Art.64 ‘Highly Migratory Species’.
56
The full list of highly migratory species listed under Annex I of the Convention is available at
http://www.un.org/Depts/los/convention_agreements/texts/unclos/annex1.htm.
57
Bureau of Rural Sciences, Fishery Status Report - Status of fish stocks managed by the Australian Government (2007)
http://affashop.gov.au/product.asp?prodid=14029 at 23 June 2009.
54
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html

cetaceans are protected under provisions governing the Commonwealth marine waters and the
Australian Whale Sanctuary;

listed threatened species are a matter of NES under the EPBC Act; and

other listing provisions are provided for under Part 13 of the Act,
it is unlikely that the automatic listing of all migratory species listed in Annex I of the UN Convention
for the Law of the Sea as a new matter of NES under the EPBC Act would lead to beneficial outcomes.
It could create unnecessary duplication and uncertainty and may not reflect the intentions of Article 64
of the Convention.
15.100 However, as mentioned above for migratory species listed under the Bonn Convention, a similar
argument could be made for listing migratory fish species listed under Annex I of the Convention by
considering the protection need of each species on a species-by-species basis.