FEDERAL COURT OF AUSTRALIA

Minister for the Environment v JN and KC Basile Pty Ltd [2020] FCA 380

ORDERS

THE COURT DECLARES THAT:

1.    The first respondent (Basile Pty Ltd) contravened s 354(1)(f) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) because Mr Joseph Basile (Mr Basile), as a director of Basile Pty Ltd and skipper of the Australian Fishing Vessel Tunamoon, conducted commercial pelagic longline fishing in the Marine National Park Zone of the Flinders Commonwealth Marine Reserve (the Reserve) on 28 and 29 June 2017.

2.    Mr Basile contravened s 354(1)(f) of the EPBC Act by conducting commercial pelagic longline fishing in the Reserve on 28 and 29 June 2017.

THE COURT ORDERS THAT:

3.    Basile Pty Ltd pay to the Commonwealth of Australia a pecuniary penalty pursuant to s 481 of the EPBC Act for the contravention of s 354(1)(f) of the EPBC Act in the sum of $81,900.

4.    Mr Basile pay to the Commonwealth of Australia a pecuniary penalty pursuant to s 481 of the EPBC Act for the contravention of s 354(1)(f) of the EPBC Act in the sum of $12,000.

5.    The respondents pay the applicant’s costs of the proceeding as agreed in the sum of $42,500.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JAGOT J:

Summary

1    This case concerns the pecuniary penalties which the respondents should be ordered to pay for their admitted act of conducting commercial pelagic longline fishing in the Marine National Park Zone of the Flinders Commonwealth Marine Reserve (the Reserve) on 28 and 29 June 2017 in contravention of s 354(1)(f) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act).

2    All facts have been agreed. The statement of agreed facts and supplementary statement of agreed facts, excluding annexures, are attached at Annexure A (the Agreed Facst). The parties have agreed the terms of declarations which they submitted should be made. They have also agreed that an appropriate penalty to be imposed on the second respondent (Mr Basile) would be $12,000 or about 13% of the maximum penalty of $90,000 for the contravention by Mr Basile as an individual. They disagree about the penalty that should be imposed on the first respondent, J.N. and K.C. Basile Pty Ltd (the company), the maximum penalty for which is $900,000. The applicant (the Minister) submitted that a penalty of $145,000 should be imposed. The respondents submitted that a penalty of $63,000 should be imposed.

3    For the reasons which follow, I accept that the declarations should be made in the terms proposed and that a penalty of $12,000 should be imposed on Mr Basile. I also consider that a penalty of $81,900 should be imposed on the company. I will also make an order that the respondents pay the Minister’s costs of the proceeding agreed in the sum of $42,500. I note that the respondents are also liable for payment of their own legal costs of the proceeding of approximately $34,000.

Facts

4    The basic facts, taken from the Agreed Facts and Mr Basile’s unchallenged evidence, are set out below.

5    The company owns the fishing vessel known as Australian Fishing Vessel Tunamoon (the AFV Tunamoon) and used it to conduct commercial fishing. Mr Basile was the skipper of this vessel. The company owned a fishing concession and leased quota rights which authorised it to conduct commercial fishing by pelagic longline in the Eastern Tuna and Billfish Fishery (ETBF) in the 2017 season, catching southern bluefin tuna.

6    The Reserve extends for a significant distance into deep ocean waters off the coast of Tasmania. The illegal longline fishing occurred about 165km from the continental shelf above a deep abyssal plain.

7    Southern bluefin tuna, a highly migratory species, are found both inside and outside of the Reserve.

8    Mr Basile had never fished so far south before. He had gone south due to lower than expected catches in his normal fishing area. Mr Basile did not know about the Reserve. In his experience, marine reserves were usually located close to land where the water is shallow and protected making it attractive for marine species to feed and breed. It did not occur to him that he could be near any marine reserve as they were so far out in the deep ocean, over 200km away from any land mass. He did not check for the location of marine reserves before going further south to fish but accepted he should have done so. Publicly available resources showed the location of the Reserve and made clear that commercial fishing was prohibited in the Marine National Park Zone of the Reserve.

9    When the AFV Tunamoon set its longline for its second shot on 28 June 2017 it was outside the Reserve (Shot 2). However, Shot 2 entered the Marine National Park Zone of the Reserve so that about one third of the longline was outside the Reserve and two thirds was inside the Marine National Park Zone of the Reserve. As a result of currents, the whole of the longline then drifted into the Marine National Park Zone of the Reserve. As such, the hauling of the whole of the longline took place within the Marine National Park Zone of the Reserve. Mr Basile caught and kept 109 southern bluefin tuna (5,000kg processed weight) and 3 albacore tuna (35kg processed weight). He also caught and released a further 78 fish. As noted, all of the fish were hauled from within the Marine National Park Zone of the Reserve and it is likely that a majority of the fish were hooked while within the Marine National Park Zone of the Reserve.

10    The location of the AFV Tunamoon was automatically recorded via a vessel monitoring system (VMS). Mr Basile completed logbook entries which, by the co-ordinates recorded, disclosed that he had conducted Shot 2 within the Reserve as described above. Mr Basile also caught southern bluefin tuna outside but near the Reserve on other occasions during the same period of fishing trips.

11    The fish caught in the Reserve was sold for $77,831.41. The estimated net profit, after the costs of conducting Shot 2 are deducted, is $22,547.77.

12    Longline fishing has the potential to result in adverse effects to the marine environment. Potential direct harmful effects include the reduction in large predator species such as sharks, tuna and billfish and the halting of species population growth and recovery.

13    It is known that there was no bycatch of seabirds or marine mammals during Shot 2. The longline did not break and no fishing gear was lost from the longline during Shot 2. There is no indication that there was any interaction with any whales, marine mammals or continental shelf and continental slope shark species.

14    Mr Basile retired as a commercial fisherman in October 2018. When he retired he did not know this proceeding was going to be commenced. As the Agreed Facts put it, had Mr Basile known about the proceeding he would have continued fishing for at least another eight months to earn the money to pay the fines and costs associated with the proceeding. As he has now sold his fishing boat and fishing quotas he will have to pay the fines and costs from his retirement savings.

15    The Agreed Facts note that Mr Basile has never previously been warned, cautioned, charged or fined for any breach of the law in his 36 years of commercial fishing. He and the company co-operated with the investigation including by participating in an interview and making full and frank admissions and have also co-operated in relation to this proceeding. Without their co-operation the time and cost involved in this proceeding would have been significantly greater. Mr Basile has expressed the fact that he is truly sorry for fishing inside the Reserve and deeply regrets any harm that he may have caused in doing so.

Minister’s submissions

The legislation

16    The Minister noted that the objects of the EPBC Act are set out in s 3 and include the protection of the environment and the promotion of the ecologically sustainable use of natural resources. The EPBC Act contains various mechanisms to advance these objects, including the provisions in Part 15 of the EPBC Act which concern protected areas. These provisions ensure that areas of international and/or national environmental significance are protected and managed consistently with the natural values of the area and Australia's international environmental responsibilities.

17    Under s 481(2) of the EPBC Act the Court may order the wrongdoer to pay to the Commonwealth the pecuniary penalty that the Court determines is appropriate, being not more than the specified maximum. The maximum civil penalty for a contravention of s 354(1)(f) of the EPBC Act is $900,000 for a body corporate and $90,000 for an individual.

18    Factors which must be considered in setting a penalty are specified in s 481(3) of the EPBC Act, which provides:

In determining the pecuniary penalty, the Court must have regard to all relevant matters, including:

  (a)     the nature and extent of the contravention; and

(b)     the nature and extent of any loss or damage suffered as a result of the contravention; and

  (c)     the circumstances in which the contravention took place; and

(d)     whether the person has previously been found by the Court in proceedings under this Act to have engaged in any similar conduct.

General deterrence

19    The Minister submitted that the primary purpose of imposing civil penalties is to ensure compliance with the statutory regime by deterring future contraventions, both by the present respondents (specific deterrence) and other would-be contravenors (general deterrence). The Minister noted that deterrence has repeatedly been emphasised in the context of the EPBC Act: Minister for Sustainability, Environment, Water, Population and Communities v Woodley [2012] FCA 957; (2012) 194 LGERA 290 (Woodley); Minister for the Environment v Hansen [2016] FCA 1146 at [55]-[56] (Hansen); Minister for the Environment v Karstens [2015] FCA 649 at [22]-[25] (Karstens); Minister for the Environment v Thermal Dell Pty Ltd [2014] FCA 1442 at [37] (Thermal Dell); and Minister for the Environment v Lucky S Fishing Pty Ltd [2015] FCA 10; (2015) 323 ALR 723 at [53]-[58] (Lucky S).

20    The Minister emphasised that longline fishing poses a very grave risk to marine life in Commonwealth Marine Reserves. In particular:

(1)    longline fishing equipment is capable of catching large amounts of fish. Each longline fishing shot may involve over 1,000 baited hooks and tens of kilometres of line. The potential impact of this method on large predatory species within the Reserve is illustrated in the present case by the single shot the subject of the contraventions, where the AFV Tunamoon set 800 hooks and caught 190 fish (over 5 tonnes) – 112 of which were kept, with 78 caught and released (4 dead);

(2)    large predatory species, like sharks and bluefin tuna, are known to exist within the Reserve. Longline fishing within the Reserve undermines the benefit these species receive from the Reserve as a “no-take” protected area;

(3)    many seabird species, including globally vulnerable, endangered and near-threatened species, forage within the Reserve and are known collateral casualties of longline fishing;

(4)    the Reserve is an important area for the migration of marine mammals who may become entangled, injured and even killed as a result of interaction with longlines;

(5)    the seafloor habitats in the Reserve include sponge gardens and seamounts which provide habitat for a wide variety of species, including potentially endemic species. These can be damaged by fishing gear debris; and

(6)    longline fishing activities potentially interfere with ongoing and long term monitoring and research programs by decreasing the value of the Reserve as a “no fishing” reference site. This interference has detrimental flow on effects for the effective management of Commonwealth Marine Reserves more generally.

21    The respondents were fishing the ETBF and the Southern Bluefin Tuna Fishery (SBTF). The Minister submitted that many commercial fishing businesses operate in these fisheries and the estimated gross value of each of these fisheries in 2016-2017 was about $39 million. The total allowable catch of southern bluefin tuna in the SBTF is managed in accordance with Australia’s international conservation obligations. The enforcement of “no-take” zones is important for protecting the stocks of southern bluefin tuna and hence enhancing the ongoing sustainability of the SBTF. The respondents’ contraventions occurred despite the VMS used on the vessel which demonstrates the ongoing need for deterrence even in relation to businesses using VMS. Specifically, the “failures of the Respondents in this case underscores the need for a strong message to be sent to others in a like position”.

Specific deterrence

22    Given Mr Basile’s retirement the Minister accepted that no greater penalty should be imposed than that necessary to achieve general deterrence.

The nature and extent of the contravention

23    The Minister submitted that:

(1)    the contraventions involve a single longline fishing shot undertaken over approximately 18.5 hours from 28 to 29 June 2017 (Shot 2);

(2)    most of the setting and soaking stages, and all of the hauling stage, were undertaken within the boundaries of the Reserve;

(3)    the company was directly and immediately responsible for the conduct of Shot 2 through its director and skipper of the AFV Tunamoon, Mr Basile;

(4)    neither the company nor Mr Basile were aware of, or had taken steps to ascertain, the existence or the boundaries of the Reserve. No precautions were taken to ensure they did not fish in the Marine National Park Zone of the Reserve; and

(5)    this conduct took place in circumstances where the company and Mr Basile were aware of the existence of Commonwealth Marine Reserves and the need to avoid conducting commercial fishing within them, of the risk of the harms which could be caused by commercial longline fishing, and that they were fishing in unfamiliar waters.

24    The Minister submitted that in these circumstances the failure to check for Commonwealth Marine Reserves can properly be viewed as a serious breach of the respondents’ statutory obligations.

Loss and damage suffered as a result of the contravention

25    The Minister submitted that:

(1)    Shot 2 caused significant harm to marine life within the Reserve in that 109 Southern Bluefin Tuna and 3 Albacore Tuna were caught, and a further 78 fish caught and released, with four of them dead; and

(2)    the contravening conduct put the Marine National Park Zone of the Reserve, and the organisms and features within it, at risk of many other harms potentially caused by longline fishing, although some of those risks did not materialise in this case.

Circumstances in which the contravention took place

26    The Minister submitted that:

(1)    the Reserve was declared on 28 June 2007 and its existence was made publicly known via various publications;

(2)    it was neither expensive nor onerous for the respondents to identify the existence of the Reserve in the ETBF and to avoid fishing within its boundaries;

(3)    the respondents did not have any compliance system in place for any fishing outside the waters in which they usually fished;

(4)    no precautions were taken by the respondents to ascertain whether there were Commonwealth Marine Reserves in the more southern regions of the ETBF; and

(5)    the explanation for the failure to check for Commonwealth Marine Reserves is Mr Basile’s belief that reserves were located near land and that he could not be near a reserve as he was fishing in the deep ocean. However, a number of Commonwealth Marine Reserves extend far from land and the respondents knew that significant amounts of marine life could be found far beyond coastal waters.

27    In these circumstances, the Minister submitted that the respondents’ failure to check the location of Commonwealth Marine Reserves in the area was “unreasonable and irresponsible” in contrast to the careful planning which went into the commercial aspects of the fishing trip.

28    The Minister also noted that the fish caught from Shot 2 were sold for $77,831.41 yielding a net profit of $22,547.77 plus a payment of wages to Mr Basile and his wife of $3,176.

29    According to the Minister:

The circumstances in which the contravention took place…underscore the seriousness of the compliance failures by the Respondents and the commercial nature of the actions undertaken by the Respondents. This reinforces the need to send a strong message that business must take necessary precautions to avoid fishing in Commonwealth Marine Reserves before engaging in such activities.

Similar conduct in the past?

30    The Minister acknowledged that the respondents had not previously been found to have contravened the EPBC Act or any other relevant law and that this was an important mitigating factor.

Circumstances of the contravenors

31    The Minister noted that the company is jointly owned by Mr and Mrs Basile and that, as a result, any penalty imposed on the company would be a penalty on Mr Basile as part owner of the company. According to the Minister the penalty proposed for Mr Basile takes into account that the penalty is to be imposed on a director and joint shareholder of a company which will itself be subject to a penalty.

Steps to rectify the harm

32    The Minister acknowledged that no steps had been proposed for the respondents to take and thus there was no criticism of the respondents for not having done so.

Contrition and co-operation

33    The Minister noted that the evidence in support of the contraventions was strong as the details of the contravention were captured in the respondents’ VMS and log books but that it nevertheless should be recognised that the respondents had co-operated extensively in the investigation and the conduct of the proceeding. The Minister said that the respondents should be given full credit for their admissions and co-operation which would be reflected in a 30% reduction in the penalty which would otherwise be appropriate.

Other cases

34    The Minister submitted that while similar cases should incur similar penalties the differing circumstances of individual cases means that a penalty in an earlier case cannot dictate the penalty in a later case as what is sought is not numerical consistency but the consistent application of principle. According to the Minister the penalty amounts in previous civil penalty cases for contraventions of s 354 of the EPBC Act provide limited guidance because of differences as to respondents, maximum penalties, conduct and circumstances.

Respondents’ submissions

35    The respondents submitted that the penalty proposed by the Minister for the company was excessive in the circumstances of the case and would offend the principle of even-handedness.

36    The respondents acknowledged that general deterrence was the determinative consideration but noted that the importance of this consideration could not result in the imposition of a penalty disproportionate to the objective seriousness of the contraventions: Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at [570].

37    The respondents noted that in cases involving breaches of s 354(1) of the EPBC Act the quantum of the penalty required to achieve general deterrence is directly related to the difficulty of detecting contraventions and enforcing the law against contravenors: Hansen at [58], Woodley at [62], Karstens at [27], [29] and [30]. In contrast to these cases, however, all tuna longliners on the ETBF are required to have VMS installed so that their fishing activities are monitored. This fact means the need for general deterrence is not as strong in the present case as compared to contraventions which are difficult to detect as in Hansen, Woodley and Karstens. Further, in the present case, none of the factors increasing the need for general deterrence noted in Hansen at [64] are present. That is, there is no evidence of any significant prevalence of this type of contravention, nor of any particular threat to southern bluefin tuna habitat nor that southern bluefin tuna populations are endangered.

38    The respondents also noted, in answer to the Minister’s submissions, that:

(i)    the Harrison’s Dogfish (as well as the school shark, the gulper shark and the southern dogfish) are continental shelf and continental slope shark species;

(ii)    the contravention the subject of these proceedings took place some 130km from the continental slope and some 165km from the continental shelf – in the surface waters above a deep abyssal plain;

(iii)    although the large offshore seamount in the Reserve is an important centre of deep ocean biodiversity, production and endemism, Mr Basile’s contravening conduct took place some 140km from this seamount;

(iv)    there is no evidence that there were any seabirds as far out to sea as Mr Basile was;

(v)    there is no evidence that the migration of marine mammals takes place as far out to sea as Mr Basile was;

(vi)    there is no evidence that there are any sponge gardens as far out to sea as Mr Basile was (indeed, it appears that the sponge gardens in the Reserve are located on the continental shelf);

(vii)    there was no bycatch of seabirds or marine mammals as a result of the contravening conduct;

(viii)    Mr Basile’s longline did not break and no fishing gear was dislodged from the longline or lost; and

(ix)    there is no evidence that there was any interaction with any whales, marine mammals or any of the shark species identified in subparagraph …(i) above.

39    The respondents also submitted that it is relevant that southern bluefin tuna are a highly migratory species and that there is a key difference between taking such a species from the Reserve compared to, for example, the rock lobster which seldom travels great distances across open terrain and thus may never leave a marine protected area: see Hansen at [24]-[25]. In the present case the respondents caught southern bluefin tuna outside the Reserve on all four fishing trips between 13 June and 13 July 2017. As the respondents put it:

Given that Mr Basile had spent $23,320.88 leasing Southern Bluefin Tuna quotas, it is entirely possible that, even if Mr Basile had not entered the Reserve on 28 June 2017, he would have caught the same of quantity of bluefin tuna outside of the Reserve. The same could not be said if Mr Basile had removed from the Reserve a species endemic to the Reserve.

40    The respondents compared the circumstances of the present case to other cases in support of their submission about the need for even-handedness.

41    The respondents submitted:

The facts in Thermal Dell were very similar to those in the instant case:

(i)    the contravention involved commercial pelagic longline fishing in a marine reserve (see the declarations made by the Court in Thermal Dell);

(ii)    the contravention was unintentional (Thermal Dell at [49]);

(iii)    the fishing vessel had a fully operational VMS and submitted accurate Daily Fishing Logs used for detection of the conduct (Thermal Dell at [53(d)]);

(iv)    the respondents had an excellent record (Thermal Dell at [61]);

(v)    specific deterrence was of limited relevance (Thermal Dell at [62]) – in this case, specific deterrence is of no relevance;

(vi)    the Minister accepted that there was no meaningful remediation which the respondents could have undertaken (Thermal Dell at [63]) – something that the Minister accepts in this case; and

(vii)    the respondents had co-operated extensively with the authorities (Thermal Dell at [67]).

42    The respondents also submitted that a number of facts distinguish the circumstances in Thermal Dell:

(i)    the contravening conduct in Thermal Dell involved the drifting of longlines into the reserve, rather than the partial setting of longlines in the reserve (Thermal Dell at [58]);

(ii)    part only of the hauling stage in Thermal Dell was conducted within the boundaries of the reserve, rather than all of the hauling stage (Thermal Dell at [20]);

(iii)    Thermal Dell involved two contraventions (albeit a single course of conduct) (Thermal Dell at [67]), whereas the instant case involves only one contravention; and

(iv)    approximately 1.78 tonnes of fish was caught during the two shots the subject of the contraventions in Thermal Dell, although it was not possible to determine what fish, if any, were caught from within the reserve (Thermal Dell at [18]) – while approximately 5 tonnes of fish were caught in the instant case (the majority of which were likely to have been hooked within the Reserve).

43    The respondents noted that a penalty equivalent to 5.84% of the maximum penalty for each separate contravention was applied in Thermal Dell before a discount of 30% for co-operation: at [68]. The respondents submitted that the principle of even-handedness supported the respondents’ proposed penalty of 10% of the maximum for the company before a discount of 30% resulting in a penalty of $63,000.

44    As to Lucky S, similarly to the present case:

(1)    the breach was unintentional (Lucky S at [11]);

(2)    the fishing vessel had been fitted with VMS (Lucky S at [32]);

(3)    the need for specific deterrence was either non-existent or not great (Lucky S at [64]); and

(4)    Lucky S had fully co-operated with the authorities (Lucky S at [64]).

45    However, in Lucky S, unlike the present case, only a very small quantity of fish was caught and the operating costs of the trip far outweighed any sales from the fish caught: Lucky S at [35]. But in addition there were findings of likely damage to the sea floor at [47] and the respondent had been reminded in 2007 by correspondence not to contravene the EPBC Act which made the subsequent failure to brief the skipper more serious: at [70].

46    The respondents noted that in Lucky S a penalty of 9% of the maximum was imposed on the respondent (before a discount of 30% was applied for co-operation). The respondents submitted that Lucky S also supported the respondents’ proposed penalty for the company.

47    The respondents submitted that the facts in Woodley were different from the present case as:

(i)     specific deterrence was necessary as Woodley was likely to continue working for some time in the future as a commercial fisherman (Woodley at [52]);

(ii)     significant weight was to be given to the need for general deterrence because the detection of illegal rock lobster fishing is extremely difficult (Woodley at [57], [59] and [67]);

(iii)     Woodley had not co-operated during the course of the investigation, but had left his co-operation until it was inevitable that the contraventions would be established (Woodley at [65]); and

(iv)     Foster J found (at [63]) that although the contravention was not intentional, it was certainly reckless (the Minister does not make any such submission in the instant case).

48    A penalty of 11.8% of the maximum was imposed on the corporate respondent in Woodley, being five times the penalty imposed on the individual respondent. The respondents noted that in Thermal Dell at [57] it was said that Woodley involved a substantially greater level of culpability than Thermal Dell. The respondents submitted that the culpability in Woodley also substantially exceeded that in the present case. As a result, the respondents said that Woodley supported their proposed penalty. Further, their proposed penalties would mean that the company in the present case would be penalised at a rate five times greater than Mr Basile.

49    The respondents referred to Minister for Environment and Heritage v Warne [2007] FCA 599 at [16] in which Siopis J said:

…to satisfy the deterrent element, a civil penalty should deprive a party, fishing within the boundaries of the reserve, of any commercial gain made by the contravening conduct, and should also go some way further, to reflect the community’s disapproval in respect of the environmental harm caused to the reserve.

50    The respondents submitted:

A penalty of $63,000 imposed upon Basile Pty Ltd would have the effect of depriving the company of all the profit that it made – $22,547.77 (although this amount almost certainly includes some profit from fish hooked outside the Reserve) – and imposes an additional penalty upon Basile Pty Ltd of approximately twice that amount. It is submitted that such a penalty is sufficient to achieve the objective of general deterrence in circumstances where the contravention is unintentional and there is a very high probability of being caught.

51    The respondents also submitted that some weight should be given to the fact that had Mr Basile known this action was going to be taken he would have continued to fish for at least another eight months to pay the fines and he had contributed to the ability of authorities to detect contraventions of the EPBC Act by providing assistance to the company responsible for the camera system installed on all tuna longliners in the ETBF.

Discussion

52    While I accept the essential aspects of the Minister’s submissions I consider that four circumstances require greater emphasis than allowed for by the Minister in the assessment of an appropriate penalty to be imposed on the company.

53    First, the contravention arose from carelessness on Mr Basile’s part. The contravention was neither intentional nor reckless. It was careless of Mr Basile not to check for marine protected areas given that he was fishing in unfamiliar waters. This one act of carelessness has to be viewed in the context of Mr Basile’s previously unblemished record after a long career in the commercial fishing industry.

54    Second, the contravention was not difficult to detect. The contravention was proven by the respondents’ own VMS and logbooks. There is no suggestion that similar contraventions would be any more difficult to detect than the contravention in the present case. This circumstance means that the need for a strong message of general deterrence is not as acute as in cases where the contravention would be difficult to detect. The risk of detection of contraventions of the EPBC Act, for conduct similar to that of the respondents in the present case, seems to be relatively high. The need for general deterrence continues but is not as acute as in cases where the contravening conduct is difficult to detect as in, for example, Woodley at [62].

55    Third, the southern bluefin tuna is a highly migratory species. The habitat of the southern bluefin tuna extends into and outside of the Reserve. The fact that Mr Basile caught fish both inside and outside of the Reserve shows the migratory nature of this species. Contrary to the Minister’s submission I do consider this a factor relevant to the objective seriousness of the contravention. A highly migratory species such as southern bluefin tuna, as the evidence shows, is just as likely to be caught outside as within the Reserve. The same could not be said of a species endemic to the Reserve.

56    Fourth, while the other cases on which the respondents relied do involve different facts and circumstances, including different maximum penalties, some comparisons are nevertheless possible. In particular, the percentage penalty imposed on the corporate respondent in Woodley (11.8% of the maximum, apparently with no material discount for co-operation) suggests that the penalty proposed by the Minister in the present case of 23% of the maximum (before applying a 30% discount for co-operation) is excessive. In Woodley while no rock lobsters were caught, the conduct was difficult to detect and reckless, and there was no co-operation by the respondent during the investigation. The respondents’ analysis of the other cases also provides meaningful assistance by identifying the similar and dissimilar features and the penalties imposed as a percentage of the maximum penalty able to be imposed. Consideration of those other cases also supports the view that the Minister’s proposed penalty for the company of 23% of the maximum before the application of a discount of 30% for co-operation is excessive when the differences and similarities with the other cases are taken into account.

57    As a result of these considerations I consider that the Minister’s starting point for the analysis of a penalty on the company of about 23% of the maximum, before giving the respondents a 30% discount for co-operation, is too high and does not appropriately reflect the objective seriousness of the contravention.

58    The circumstances to which I have referred above, however, have to be weighed with the important facts that the respondents caught a substantial amount of fish (albeit a highly migratory species) from within the Reserve and made a profit from selling them. I consider that these factors have not been given sufficient weight in the respondents’ submissions. When these factors are given their due weight they indicate that the respondents’ starting point of 10% of the maximum penalty for the company is too low and also fails to adequately reflect the objective seriousness of the contravention.

59    In my view, having regard to all of the relevant circumstances, the objective seriousness of the contravention would be better reflected by a starting point of 13% of the maximum penalty for the company or $117,000. Given the respondents’ extensive co-operation and contrition I agree that a discount of 30% should be given, which gives a total penalty of $81,900. As noted, I accept that the declarations as proposed should be made and a penalty of $12,000 should be imposed on Mr Basile. The agreed costs order should also be made.

Associate:

Dated:    24 March 2020

Annexure A

STATEMENT OF AGREED FACTS

FEDERAL COURT OF AUSTRALIA

DISTRICT REGISTRY: AUSTRALIAN CAPITAL TERRITORY

DIVISION: GENERAL

No ACD 46 of 2019

For the purposes of s 191(3)(a) of the Evidence Act 1995 (Cth), this statement sets out the facts that the parties have agreed are not, for the purposes of this proceeding, to be disputed.

PART I    BACKGROUND

The Applicant

1.    The Minister for the Environment is responsible for the administration and enforcement of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). The Minister is assisted in her functions by the Department of the Environment and Energy.

The Respondents

2.    The First Respondent, J.N and K.C Basile Pty Ltd (ACN 615 283 728), is an incorporated company.

3.    From in or about October 2016, Basile Pty Ltd was engaged in commercial fishing activities, trading under the registered business name J.N and K.C Basile Fisheries.

4.    The Second Respondent, Mr Joseph Basile (Mr Basile), and his wife, Ms Kathleen Basile, are, and were in June and July 2017, the sole directors and shareholders of Basile Pty Ltd. Together, they were responsible for the day to day commercial operations of Basile Pty Ltd.

5.    Basile Pty Ltd is, and was in June and July 2017, the registered owner of Australian Fishing Vessel Tunamoon (AFV Tunamoon). Basile Pty Ltd used the AFV Tunamoon to conduct its commercial fishing activities.

6.    In June and July 2017, Mr Basile was the skipper of the AFV Tunamoon. During this period, he was in charge of the vessel and its crew on its commercial fishing voyages and was authorised to conduct commercial fishing activities on behalf of Basile Pty Ltd.

7.    In June and July 2017, Basile Pty Ltd:

7.1.    owned the fishing concession Eastern Tuna and Billfish Fishery Longline Boat Statutory Fishing Right number 473 (the Concession); and

7.2.    leased Southern Bluefin Tuna Quota Statutory Fishing Rights (the Quota).

8.    The Concession authorised Basile Pty Ltd to conduct commercial fishing by pelagic longline fishing in the Eastern Tuna and Billfish Fishery (ETBF) (described at 14-16 below) in the 2017 season. The Quota entitled Basile Pty Ltd to catch Southern Bluefin Tuna.

9.    Copies of the Concession and the Quota are annexed as SAF1.

PART II    REGULATION OF COMMERCIAL FISHING IN COMMONWEALTH FISHERIES

Regulation of commercial fishing through Commonwealth fisheries

10.    Commercial fishing in Commonwealth waters is regulated through the use of designated Commonwealth fisheries.

11.    The Australian Fisheries Management Authority (AFMA) is responsible for managing Commonwealth fisheries.

12.    To ensure the efficient management and ecologically sustainable use of Commonwealth fish resources, AFMA manages Commonwealth fisheries through a concession and quota system. This system limits the number of vessels able to conduct fishing activities in each fishery and makes those activities subject to various conditions. It also limits the total authorised catch for various species in each fishery.

13.    There are presently 18 Commonwealth fisheries covering Commonwealth waters right around the Australian coast and extending around Macquarie Island, Cocos (Keeling) Islands and Norfolk Island. The locations of these fisheries are marked on the map included as SAF2.

The Eastern Tuna and Billfish Fishery

14.    The ETBF is a significant Commonwealth fishery located off the coast of Eastern Australia. In 2016-2017, its estimated gross value of production was $39 million.

15.    The ETBF stretches along the entire eastern coast of Australia. The boundaries of the ETBF are marked on the map annexed as SAF3.

16.    Before engaging in commercial fishing in the ETBF, a person needs to obtain either longline or minorline boat Statutory Fishing Rights, and quotas to catch certain species of fish. Fish species managed by quota in the ETBF include Albacore Tuna, Bigeye Tuna, Yellowfin Tuna, Broadbill Swordfish and Striped Marlin. Southern Bluefin Tuna may be caught in the ETBF, but the quota for them are managed nationally as part of the Southern Bluefin Tuna Fishery (SBTF).

The Southern Bluefin Tuna Fishery

17.    The SBTF is a Commonwealth fishery which covers the entire sea area around Australia, out to the boundaries of the Australian Exclusive Economic Zone (about 200 nautical miles (370 kilometres) from the coast). In 2016-17, the estimated gross value of production from the SBTF was $38.6 million.

18.    The SBTF is managed by limiting the total catch of Southern Bluefin Tuna in accordance with Australia’s international conservation obligations. To catch Southern Bluefin Tuna in the SBTF, a fisher must hold a Southern Bluefin Tuna quota statutory fishing right (SFR). Each fisher is limited to catching Southern Bluefin Tuna up to the amount of quota SFRs that they hold. These quota SFRs entitle the fisher to take a certain weight of Southern Bluefin Tuna in kilograms, based on a ‘live weight value’ set each season. In the 2017-2018 season, the live weight value for a single SFR in the SBTF was 1.15787216 kilograms. The whole fishery is also limited to a total allowable catch that is set each season. In the 2017-2018 season, the total allowable catch nationally for the SBTF was increased from 5,665,000 kilograms to 6,165,000 kilograms.

19.    In 2017, there were 84 statutory fishing right owners in the SBTF. In 2019, 179 boat SFRs have been issued for the ETBF, including a total of 86 longline boat SFRs and 93 minor-line boat SFRs.

PART III    THE FLINDERS COMMONWEALTH MARINE RESERVE

20.    The Flinders Commonwealth Marine Reserve is a Commonwealth marine reserve which was declared by proclamation under s 344(1) of the EPBC Act on 28 June 2007.1

21.    A copy of the proclamation declaring the Reserve is included as SAF4.

22.    The Reserve is located east of the north-east tip of Tasmania and Flinders Island and extends over 400 kilometres eastward to the edge of Australia’s exclusive economic zone. It has an area of approximately 27,043km2, and includes water at depths from about 40 metres to over 3,000 metres.

23.    The Reserve has two zones: a Marine National Park Zone and a Multiple Use Zone.

24.    The Marine National Park Zone comprises the vast majority of the Reserve. It covers an area of approximately 25,812 km2. The Multiple Use Zone only covers the remaining area of approximately 1,231 km2.

25.    A map showing the location and boundaries of the Reserve and the Marine National Park Zone within the Reserve is annexed as SAF5.

Prohibition on commercial fishing in the Marine National Park Zone

26.    Commercial fishing is prohibited in the Marine National Park Zone. Commercial fishing has been prohibited in this area since the Reserve was first proclaimed in 2007.

27.    The Reserve is, and was in June and July 2017, managed under the South-east Commonwealth Marine Reserves Network Management Plan 2013-2023.

28.    The Management Plan prohibits all forms of fishing in the Marine National Park Zone, including commercial, recreational and charter fishing. Only vessel transiting is allowed.

29.    A copy of the Management Plan is included as SAF6.

Special features of the Reserve

30.    The special features of the Reserve are set out below by way of background. It is not suggested that all of these features were affected by the contravening conduct the subject of these proceedings. The extent to which the contravening conduct affected, or may have affected, the special features of the Reserve is addressed in Part VII, below.

31.    Key bathymetrical features of the Reserve include its continental shelf and a long section of steep continental slope which is incised by a series of submarine canyons and deeper abyssal plains off the north-east of Tasmania. The contravening conduct the subject of these proceedings took place in the surface waters above one of these abyssal plains – approximately 130 km from the continental slope and 165 km from the continental shelf.

32.    Seafloor habitats in the Reserve include sheer rocky walls and large rocky outcrops that support a diversity of deep-sea communities.

33.    The seafloor habitats on the continental shelf include large expanses of sandy and muddy sentiment and low profile rocky reefs suitable for sponge gardens and providing habitat for a wide variety of fishes and invertebrates. The continental slope and submarine canyons are known to provide feeding grounds for high concentrations of fish.

34.    Another prominent feature of the Reserve is a large offshore seamount believed to be too deep to have been fished. The contravening conduct took place approximately 140 km from this Seamount. Seamounts are considered to be important centres of deep ocean biodiversity, production and endemism. Each of the large seamounts to the east of Tasmania are believed to be biologically important, providing habitat to species that may be unique to each seamount and to a range of more widely occurring species that make their homes only on their rocky slopes.

35.    Biodiversity is influenced by summertime incursions of the warm East Australian Current and associated large-scale, anti-clockwise whirlpools.

36.    The Reserve is recognised as an important foraging sanctuary for many seabird species, including the following vulnerable or endangered species:

36.1.    Wandering Albatross (globally vulnerable, decreasing population, nationally vulnerable, endangered in Tasmania);

36.2.    Yellow-nosed Albatross (globally endangered, decreasing population, nationally vulnerable);

36.3.    Shy Albatross (globally near threatened, nationally vulnerable);

36.4.    Gould's Petrel (globally vulnerable, decreasing population, nationally endangered); and

36.5.    Antipodean Albatross (globally endangered, nationally vulnerable).

37.    The Reserve is an important area for the migration of humpback whales, as well as other marine mammals such as southern right whales, sei whales, dolphins and orcas.

38.    The Reserve includes the habitat of a suite of continental shelf and continental slope shark species, including school shark (Galeorhinus galeus) and gulper shark (Centrophorus granulosus) and, between 400 and 600 metre depths, Harrisson’s dogfish (Centrophorus harrissoni) and southern dogfish (Centrophorus zeehaani). The Harrisson’s dogfish is a conservation dependent species of shark which occupies a narrow strip off the continental slope and seamounts east of Bass Strait. The Reserve encompasses a significant portion of the continental slope and deep submarine canyons and rocky outcrops which are likely to be critical habitat for the Harrisson's Dogfish.

39.    Southern Bluefin Tuna are found in the Reserve. This highly migratory fish is a conservation dependent species. The main threat to Southern Bluefin Tuna is historic and ongoing fishing pressure. Since 2011, Australian Fisheries Management Authority has increased the Southern Bluefin Tuna fishing quota by 54 per cent. The market for Southern Bluefin Tuna is highly lucrative and the species is targeted by fishers.

40.    The implementation of no-take marine protected areas has significant benefits for abundance and diversity of targeted organisms, especially in large, long established, well-managed and well enforced marine parks, such as the Reserve. These benefits extend to large pelagic species (such as sharks and other apex predators), even though such species can move great distances and spend time both inside and outside no-take marine protected areas.

PART IV    RESPONDENTS’ COMMERCIAL FISHING ACTIVITIES IN THE RESERVE

Fishing Trip from 26-30 June 2017

41.    From 26 June to 30 June 2017 (the Fishing Trip), Mr Basile took the AFV Tunamoon out to sea to conduct commercial fishing in the ETBF off the coast of north-east Tasmania.

42.    During the Fishing Trip, Mr Basile was the skipper of the AFV Tunamoon for Basile Pty Ltd and in charge of the AFV Tunamoon’s crew.

Commercial longline fishing

43.    During the Fishing Trip, the AFV Tunamoon was using a commercial fishing method known as pelagic longline fishing.

44.    Pelagic longline fishing involves use of a longline, called the main line, with baited hooks attached at intervals along its length by means of branch lines called snoods. The main line is typically many tens of kilometres long and can have 1000 or more branch lines with baited hooks along its length. A basic illustration of the gear used in longline fishing is annexed as SAF7.

45.    A single pelagic longline fishing ‘shot’ involves three main stages – a ‘setting’ stage, a ‘soaking’ stage and a ‘hauling’ stage as follows:

45.1.    Setting: The vessel is moved along the proposed lie of the longline. As the vessel moves, baited snoods are attached to the main line and the line is run out from the moving vessel.

45.2.    Soaking: The longline is completely detached from the fishing vessel and is left to drift with the prevailing currents. Floats and beacons attached to the line enable it to be located and picked up again at the end of the soak.

45.3.    Hauling: The crew of the fishing vessel locates the end of the longline and retrieves it by navigating the vessel along the mainline and progressively removing snoods and caught fish.

46.    Each stage takes many hours. A single pelagic longline fishing shot can take between 15 and 24 hours.

AFV Tunamoon’s longline fishing shot 2

47.    During the Fishing Trip, Mr Basile caused 2 longline fishing shots to be set, soaked and hauled by himself and the crew on the AFV Tunamoon.

48.    The second shot was conducted from 28-29 June 2017 (Shot 2).

49.    The AFV Tunamoon conducted Shot 2 by ‘setting’ its longline in the period from approximately 09:20 AEST (approximately Latitude 39°37 South and Longitude 151°18.5 East) to approximately 11:00 AEST (Latitude 39°52 South and Longitude 151°16.5 East) on 28 June 2017.

50.    In deciding to set the longline in that location, Mr Basile had regard to sea surface temperature charts from the Commonwealth Scientific and Industrial Research Organisation (CSIRO) which show hot and cold ‘pockets’ of water. In Mr Basile’s experience, the Southern Bluefin Tuna normally aggregate in the hotter pockets of water and therefore he thought that there would be fish in this location.

51.    When the AFV Tunamoon started setting its longline at about 09:20 AEST, it was outside the Marine National Park Zone of the Reserve. However, from around 10:24 AEST, the AFV Tunamoon entered the Marine National Park Zone of the Reserve and continued to set its longline within the Marine National Park Zone until 11:00 AEST. About one third of the longline was set outside the Reserve, and about two thirds was set inside the Marine National Park Zone of the Reserve.

52.    The longline was a length of approximately 13 nautical miles. There were approximately 800 hooks on the longline, with about 30 metres between each hook. The hooks on the longline were about 20-30 metres below the surface of the water.

53.    The AFV Tunamoon then detached the longline from the vessel and allowed the longline to soak in the period from approximately 11:00 AEST to approximately 15:30 AEST on 28 June 2017. During this period, the AFV Tunamoon maintained a position at the end of the longline and travelled with the prevailing surface currents with the longline in a west-south-westerly direction further into the Marine National Park Zone of the Reserve. As a result of the currents, the start of the longline (which had been set outside the Reserve) also entered the Marine National Park Zone of the Reserve some hours (although it is not known how many) after it had been set. As an experienced longline fisherman, Mr Basile was aware that the longline would travel with the prevailing surface currents.

54.    The AFV Tunamoon then began to haul its longline into the vessel for about 12 hours from approximately 15:30 AEST (approximately Latitude 39°55 South and Longitude 151°11.5 East) on 28 June 2017 to 03:40 AEST (approximately Latitude 40°01 South and Longitude 150°48 East) on 29 June 2017.

55.    The process of hauling in the longline took place entirely within the Marine National Park Zone of the Reserve, as a result of currents having carried the remaining one third of the longline that was set outside the Reserve into the Marine National Park of the Reserve.

56.    During Shot 2, the following fish were caught and kept:

56.1.    109 Southern Bluefin Tuna (5,000kg processed weight); and

56.2.    3 Albacore Tuna (35kg processed weight).

57.    A further 78 fish were caught and released, including 50 Southern Bluefin Tuna, 5 Oilfish (1 dead) and 23 Blue Shark (3 dead). The Southern Bluefin Tuna were released because they were under the legal catch size.

58.    In total, Shot 2 took approximately 18.5 hours from the start of the set to the end of the haul. It is likely that the majority of the fish identified in paragraphs 56 and 57 above were hooked within the Marine National Park Zone.

59.    The AFV Tunamoon’s position was automatically recorded by AFMA via a Vessel Monitoring System (VMS) located on the vessel which regularly relays information on vessel position, course and speed to AFMA.

60.    The map included as SAF8 shows:

60.1.    the boundaries of the Reserve and the Marine National Park Zone within the Reserve;

60.2.    the AFV Tunamoon’s incursion into the Marine National Park Zone during Shot 2 on 28-29 June 2017, based on:

60.2.1.    the plot of the AFV Tunamoon’s VMS data; and

60.2.2.    the plot of the coordinates from the Daily Fishing Log entries relating to Shot 2 completed by Mr Basile on behalf of Basile Pty Ltd.

61.    During Shot 2, the AFV Tunamoon was recorded up to 10.8 nautical miles into the Marine National Park Zone of the Reserve – approximately 230 kilometres off the east coast of Flinders Island.

Sale of the catch

62.    After conducting Shot 2, the AFV Tunamoon returned to port on 30 June 2017.

63.    On 30 June 2017, the fish caught and kept by the AFV Tunamoon during the Fishing Trip were unloaded to Ulladulla Fishermen's Co-Operative Society Ltd ABN 13 053 910 918 (the Fish Receiver) for sale.

64.    In total, 112 fish (109 Southern Bluefin and 3 Albacore Tuna) or approximately 5 tonnes of fish were caught and unloaded from Shot 2. As stated in paragraph 58 above, it is likely that the majority of these fish were hooked within the Marine National Park Zone.

65.    The Fish Receiver sold the fish unloaded on 30 June 2017 and forwarded the net proceeds to Basile Pty Ltd.

66.    The total amount paid for the approximately 5 tonnes of fish unloaded from Shot 2 on 30 June 2017 was $77,831.41.

67.     Basile Pty Ltd estimates it incurred the following costs to conduct Shot 2:

67.1.    $23,320.88 on fees to lease the Southern Bluefin Tuna quotas;

67.2.    $450 to purchase bait squid;

67.3.    $4,205.65 for fuel;

67.4.    $21,792.80 for the wages of the crew of the AFV Tunamoon;

67.5.    $3,176 for the wages of Mr Basile and Mrs Basile;

67.6.    $2,070.31 for superannuation contributions to Mr Basile and the crew of the AFV Tunamoon; and

67.7.    $268 for other miscellaneous expenses.

68.    Taking into account those expenses, Basile Pty Ltd received a net profit of $22,547.77 from Shot 2.

Logbooks and catch disposal records completed by Mr Basile

69.    Mr Basile was authorised by Basile Pty Ltd to complete logbooks and catch disposal records on its behalf.

70.    Mr Basile:

70.1.    recorded the AFV Tunamoon’s commercial pelagic longline fishing activities in Daily Fishing Log – AL06 (Log Number 275, Page Number 049); and

70.2.    completed a Commonwealth Catch Disposal Record – PT02B (Book Number 232, Page Number 29) in respect of the fish that were unloaded to the Fish Receiver.

71.    Copies of the Daily Fishing Log and Commonwealth Catch Disposal Record are included as SAF9 and SAF10 respectively.

72.    Mr Basile completed these documents on behalf of Basile Pty Ltd.

PART V    KNOWLEDGE OF MR BASILE

73.    In 2017, Mr Basile had approximately 35 years’ experience as a commercial fisherman. This included about 16 years’ experience fishing in the ETBF.

74.    By reason of his experience, Mr Basile was aware that:

74.1.    there are Commonwealth Marine Reserves in the oceans surrounding Australia, including in the ETBF;

74.2.    commercial fishing is prohibited in parts of these Commonwealth Marine Reserves.

75.    Mr Basile was most familiar with the areas of the ETBF around Coffs Harbour. From 1981 to 1996, Mr Basile operated a trawling vessel from Ulladulla Harbour. During this period, Mr Basile trawled mostly inside the continental shelf and north of Ulladulla. In 1996, Mr Basile commenced long line fishing (yellow fin tuna) from Ulladulla Harbour. From 1996 to October 2018, Mr Basile mainly fished north of Ulladulla as yellow fin tuna prefer the warmer water and currents from northern Australia.

76.    Mr Basile had never fished as far south as Tasmania, although Mr Basile had previously fished down to about the 38° Latitude during a trip earlier in the 2017 season. It was not normal for Mr Basile to fish to the south of Eden to catch Southern Bluefin Tuna. However, due to lower than expected catches of yellow fin tuna at the start of the season, Mr Basile decided to also target Southern Bluefin Tuna and invested thousands of dollars to lease the Southern Bluefin Tuna quota. As the Southern Bluefin Tuna did not move to more northern waters, as Mr Basile had expected, he decided to fish further down south where all the other boats were going.

77.    At the time the AFV Tunamoon undertook Shot 2, Mr Basile was not aware of the existence, geographic location or boundaries of the Reserve. Mr Basile accepts it was his responsibility as skipper of the AFV Tunamoon and director of Basile Pty Ltd to make himself aware of the existence, location and boundaries of any Commonwealth Marine Reserves in the area he was fishing. However, he did not check for Commonwealth Marine Reserves before or during the Fishing Trip.

78.    In June and July 2017, there were publicly available resources that identified the geographic location and boundaries of the Reserve and made clear that commercial fishing was prohibited in the Marine National Park Zone of the Reserve or other Commonwealth Marine Reserves. These included:

78.1.    The website for Parks Australia, being the Division of the Department of Environment and Energy which supports the Director of National Parks to manage the existing 58 Commonwealth Marine Reserves, including the Reserve, and six terrestrial Commonwealth Reserves. This is and was in June and July 2017 the authoritative Commonwealth government website for information on Commonwealth Marine Reserves. It includes detailed information on all Commonwealth Marine Reserves, including maps of each of the Commonwealth Marine Reserves. These maps were available on the website in June and July 2017. It also includes a copy of the Management Plan (which contains a map of the Reserve). The Management Plan was available on the website in June and July 2017.

78.2.    The Department of Environment website which had a copy of the class approval for commercial fishing.

78.3.    Media releases from Parks Australia about previous civil penalty proceedings commenced against fishers for fishing within the boundaries of other Commonwealth Marine Reserves where commercial fishing was prohibited.

PART VI    NO PRECAUTIONS TAKEN BY BASILE PTY LTD

79.    Basile Pty Ltd, through the knowledge and experience of Mr Basile, was generally aware of the existence of Commonwealth Marine Reserves in the ETBF and the need to avoid conducting commercial fishing within them.

80.    However, Basile Pty Ltd did not take any precautions to ensure that Mr Basile or the crew of the AFV Tunamoon:

80.1.    were aware of the existence, location and boundaries of the Reserve; and

80.2.    did not fish in the Marine National Park Zone of the Reserve.

81.    There were no maps of Commonwealth Marine Reserves on the AFV Tunamoon. Neither Mr Basile nor the crew were advised by Basile Pty Ltd of the existence or location of the Reserve before the Fishing Trip.

PART VII    HARMS TO THE MARINE NATIONAL PARK ZONE OF THE RESERVE CAUSED BY COMMERCIAL LONGLINE FISHING

Potential harms of commercial longline fishing

82.    Longline fishing has the potential to result in adverse effects to the marine environment.

83.    Potential direct harmful effects are the reduction in the abundance of large predator species, such as sharks, tuna, billfish and other pelagic species, and the halting of species population growth and recovery.

84.    Potential indirect harmful effects from longline fishing include:

84.1.    impacts on 'bycatch species', where non-target species, including seabirds and marine mammals are killed; and

84.2.    impacts on habitat and ecological processes, through reducing the abundance of large predator species. This can have complex and unforeseen impacts on the rest of the ecosystem, such as trophic cascades (reciprocal impacts on the populations of organisms at various levels of the food chain) and ecosystem phase shifts (where the natural state of the ecosystem is perturbed).

85.    Longline fishing can cause seabird mortality, even when seabird bycatch mitigation devices are employed. Seabirds are particularly vulnerable from longline fishing practices, as they are attracted to fishing vessels by discarded offal and the baited hooks during setting or hauling, resulting in mortality from ingestion or entanglement in fishing gear. The incidental catch (or bycatch) of seabirds during oceanic longline fishing operations was listed as a key threatening process under the EPBC Act on 24 July 1995.

86.    Longlines, whether operational or lost/abandoned, are known to cause whale entanglement and injury, resulting in subsequent increased risk to predation, reduced reproductive output, starvation, drowning and death.

87.    Other potential impacts of longline fishing include harms caused by fishing gear debris such as snoods, hooks, swivels, floats, and lightsticks which may become dislodged from the longline. Such debris can cause damage to seafloor communities, including sponge communities, in the Reserve.

88.    Commonwealth Marine Reserves, including the Reserve, provide important ‘no fishing’ reference sites for long term monitoring and research programs which aim to improve our capacity to understand, manage and conserve Australia's unique marine biodiversity and ecosystems through the generation of world-class research data and its delivery to Australian environmental decision makers and other stakeholders (such as the National Environmental Science Program (NESP), the Australian Fisheries Management Authority (AFMA), the CSIRO, and the Institute of Marine and Antarctic Studies (IMAS)). The potential hams described above reduce the value of the Reserve as a reference site and affect the accuracy of conclusions that can be drawn from such programs and research.

Risk and harms from Shot 2

89.    As Shot 2 was conducted mostly within the boundaries of the Marine National Park Zone of the Reserve, the shot put the Marine National Park Zone of the Reserve, and the organisms within the area where Shot 2 took place, at risk of the potential harms outlined above in paragraphs 82 to 88, although it is acknowledged that during Shot 2:

89.1.    there was no bycatch of seabirds or marine mammals;

89.2.    the longline did not break and no fishing gear was dislodged from the longline or lost; and

89.3.    there is no indication that there was any interaction with any whales, marine mammals or any of the shark species identified in paragraph 38, above.

90.    The AFV Tunamoon caught and kept approximately 5 tonnes of Southern Bluefin Tuna. All of these fish were hauled within the Reserve, and it is likely that the majority of them were hooked within the Reserve.

91.    It is not possible for the parties to determine the extent of the impact of the contravening conduct on the Reserve because of the complexity of the environmental systems and processes at play.

PART VIII    OTHER RELEVANT MATTERS

Mr Basile has retired from commercial fishing

92.    Mr Basile is now retired as a commercial fisherman.

93.    Mr Basile, and Basile Pty Ltd, have not been involved in any commercial fishing activities since October 2018.

Cooperation by Basile Pty Ltd and Mr Basile

94.    Basile Pty Ltd and Mr Basile cooperated with and assisted the Department’s investigation of alleged breaches of the EPBC Act by:

94.1.    Mr Basile participating in an interview with investigators from the Department on 1 November 2017, and making full and frank admissions as to a range of factual matters; and

94.2.    providing information and disclosing documents concerning the Fishing Trip to the Department.

95.    In addition, Basile Pty Ltd and Mr Basile have cooperated extensively in the present proceedings by:

95.1.    agreeing a timetable for steps to be taken in the proceeding;

95.2.    filing a defence admitting all of the allegations in the statement of claim;

95.3.    agreeing to jointly present evidence by way of a statement of agreed facts.

96.    If Basile Pty Ltd and/or Mr Basile had not cooperated in these ways and had instead contested the proceedings, the time and cost involved in these proceedings would have been significantly greater.

Environmental history of Basile Pty Ltd and Mr Basile

97.    Neither Basile Pty Ltd nor Mr Basile have been previously found by a court to have contravened the EPBC Act.

98.    In 36 years of commercial fishing, Mr Basile has never been warned, cautioned, charged or fined for any breach of State or Commonwealth Laws, Regulations or Rules.

Basile Pty Ltd and Mr Basile’s acknowledgements and apology

99.    Basile Pty Ltd and Mr Basile acknowledge that they were aware of the risk of the harms which could be caused by commercial longline fishing and failed to take sufficient and reasonable precautions to avoid fishing within the Marine National Park Zone of the Reserve.

100.    Basile Pty Ltd and Mr Basile regret the damage caused to the Reserve and apologise for their contraventions.

SUPPLEMENTARY STATEMENT OF AGREED FACTS

FEDERAL COURT OF AUSTRALIA

DISTRICT REGISTRY: AUSTRALIAN CAPITAL TERRITORY

DIVISION: GENERAL

No ACD 46 of 2019

For the purposes of s 191(3)(a) of the Evidence Act 1995 (Cth), this statement sets out the facts that the parties have agreed are not, for the purposes of this proceeding, to be disputed.

PART I    INTRODUCTION

1.    The parties agreed and filed with the Court a statement of agreed facts on 2 October 2019. This supplementary statement of agreed facts is intended to be read together with, and supplement, that statement of agreed facts.

PART II    SUPPLEMENTARY FACTS

2.    In June and July 2017, there were 18 Commonwealth Marine Reserves located, at least in part, 200 nautical miles or more from the coastline of the Australian mainland or Tasmania. Eight of those Commonwealth Marine Reserves were in the Eastern Tuna and Billfish Fishery, being the Coral Sea Commonwealth Marine Reserve, Norfolk Commonwealth Marine Reserve, Gifford Commonwealth Marine Reserve, Lord Howe Commonwealth Marine Reserve, Flinders Commonwealth Marine Reserve, Freycinet Commonwealth Marine Reserve, South Tasman Rise Commonwealth Marine Reserve and Tasman Fracture Commonwealth Marine Reserve.

3.    A map of all of the Commonwealth Marine Reserves in existence in June and July 2017, which was publicly available on the Parks Australia website on 19 March 2017, is annexed as SAF11. The eight Commonwealth Marine Reserves listed in paragraph 2, above, have been marked in handwriting on SAF11.

1.     The Reserve was renamed the Flinders Marine Park by proclamation under the EPBC Act on 10 October 2017.