Federal Court of Australia

Minister for the Environment and Water v Northern Seafoods Pty Ltd [2025] FCA 116

ORDERS

THE COURT DECLARES THAT:

1.    The Respondent contravened s 354(1)(f) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) on 49 occasions on 19 February 2022 by setting 49 traps for commercial purposes in the Habitat Protection Zone of the Oceanic Shoals Marine Park where trap fishing for commercial purposes was not permitted by the North Marine Parks Network Management Plan 2018.

THE COURT ORDERS THAT:

2.    Within 90 days of the making of this order, the Respondent pay to the Commonwealth of Australia pursuant to s 481 of the EPBC Act, a pecuniary penalty in the amount of $70,000 in respect of the contraventions of s 354(1)(f) of the EPBC Act referred to in Declaration 1.

3.    Within 90 days of the making of this order, the Respondent pay a contribution to the Applicant’s costs of and incidental to the proceeding in the agreed amount of $20,000.

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

REASONS FOR JUDGMENT

HESPE J:

INTRODUCTION

1    By originating application filed on 5 February 2024, the applicant, the Minister for the Environment and Water, seeks a declaration and pecuniary penalties against the respondent, Northern Seafoods Pty Ltd, for contraventions of s 354(1)(f) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). The Minister is responsible for the administration and enforcement of the EPBC Act.

2    The Minister alleges that Northern Seafoods contravened the EPBC Act on 19 February 2022 by the skipper and crew of the Australian Fishing Vessel Calypso Star, who were employed by Northern Seafoods, conducting trap fishing for commercial purposes using 49 traps in the Habitat Protection Zone of the Oceanic Shoals Marine Park where trap fishing for commercial purposes was not permitted by the North Marine Parks Network Management Plan 2018.

3    The parties filed a statement of agreed facts and admissions and a supplementary statement of agreed facts and admissions, setting out facts agreed between the parties pursuant to s 191 of the Evidence Act 1995 (Cth). The parties also filed joint submissions in support of an agreed declaration of contravention and a pecuniary penalty. As will be seen, the co-operative approach by Northern Seafoods is particularly significant in reaching the conclusion that it is appropriate to make orders reflecting the parties’ agreement.

The Marine Park and Management Plan

4    The EPBC Act regulates (amongst other things) commercial fishing in Commonwealth waters through the use of designated Commonwealth Reserves. Rules, including those contained in management plans in operation for a Commonwealth Reserve, manage activities within that reserve. Management plans are prepared and approved in accordance with Subdiv E of Div 4 of Pt 15 of the EPBC Act. Sections 354 and 354A of the EPBC Act, subject to certain specified exceptions, provide for the imposition of civil penalties and criminal sanctions in respect of certain activities carried out within a Commonwealth Reserve otherwise than in accordance with a management plan in operation for the reserve.

5    The Marine Park is a Commonwealth Reserve declared under the EPBC Act. The Marine Park is located west of the Tiwi Islands, approximately 155 km north-west of Darwin, Northern Territory, and 305 km north of Wyndham, Western Australia. It extends to the limit of Australia’s exclusive economic zone and covers an area of 71,743 km².

6    The Marine Park contains the following seafloor and ecological features: the carbonate terrace and bank system of the Van Diemen Rise, carbonate bank and terrace systems of the Sahul Shelf, pinnacles of the Bonaparte Basin, and shelf break and slope at the Arafura Shelf.

7    The Marine Park is home to a high diversity and density of fish species (including both non-endangered fish species, and those listed as threatened, migratory, marine or cetacean under the EPBC Act). Biologically important areas, which reflect habitat critical to the survival of a species or ecological community, within the Marine Park include foraging and inter-nesting habitat for marine turtles, including endangered Olive Ridley, and vulnerable Hawksbill, Green and Flatback turtles.

8    The Management Plan is in operation for the Marine Park, with effect from 1 July 2018. The Management Plan divided the Marine Park into four designated zones: “Special Purpose Zone”, “Multiple Use Zone”, “Habitat Protection Zone” and “National Park Zone”.

9    Of relevance to this application is the Habitat Protection Zone. The objective of the Habitat Protection Zone is to provide for the conservation of ecosystems, habitats and native species in as natural a state as possible while allowing activities that do not harm or cause destruction to seafloor habitats.

10    The carbonate bank and terrace systems of the Van Diemen Rise extend into the Habitat Protection Zone. These ecological features are characterised by diverse benthic habitats supporting sponges, soft corals, polychaetes, ascidians, turtles, sea snakes, sharks and marine mammals. Flatback turtles nest only in Australia and the Arafura Sea population use the Habitat Protection Zone as an inter-nesting habitat. The north-western section of the Habitat Protection Zone overlays part of the Timor Reef Fishery.

11    Under the Management Plan, trap fishing for commercial purposes is prohibited in the Habitat Protection Zone. Trap fishing involves the laying of fish traps. A fish trap is a cage or a box, which sometimes contains bait, that is used to collect fish and crustaceans. The cage typically consists of a metal frame and wire or string mesh cover with an entrance that allows species to enter but not leave the trap. Fish traps have escape gaps of a minimum size to ensure juvenile and some non-target fish are able to escape. The bottom of the trap is weighted to ensure it sinks to the seafloor and lands upright. The cage is attached to a length of rope that attaches to a surface float and marker buoy to aid location and retrieval. Retrieval typically occurs by grappling the main line between the marker buoy and the float and pulling it back onboard.

The statutory prohibition

12    Section 354(1)(f) of the EPBC Act provides:

354     Activities that may be carried on only under management plan

(1)    A person must not do one of the following acts in a Commonwealth reserve except in accordance with a management plan in operation for the reserve:

…

(f)    take an action for commercial purposes.

Civil penalty:

(a)    for an individual—500 penalty units;

(b)    for a body corporate—5,000 penalty units.

13    At the time of the contraventions in this case, in 2022, 5,000 penalty units, being the statutory maximum for a body corporate, equated to $1,110,000.

14    Sections 498B(1) and (5) of the EPBC Act provide:

498B     Conduct of directors, employees and agents

Bodies corporate—conduct

(1)    Any conduct engaged in on behalf of a body corporate:

(a)    by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; or

(b)    by any other person at the direction or with the consent or agreement (whether express or implied) of a director, employee or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, employee or agent;

is to be taken, for the purposes of this Act, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.

….

Reasonable precautions

(5)    For the purposes of subsection (1) or (3), in determining whether a body corporate or other person took reasonable precautions and exercised due diligence to avoid particular conduct, a court must have regard to what steps (if any) the body or person took directed towards ensuring the following (to the extent that the steps are relevant to the conduct):

(a)    that the body or person arranges regular professional assessments of the body’s or person’s compliance with this Act and the regulations;

(b)    that the body or person implements any appropriate recommendations arising from such an assessment;

(c)    that the body or person has an appropriate system established for managing the effects of the body’s or person’s activities on the environment;

(d)    that the directors of the body, or the employees or agents of the body or person, have a reasonable knowledge and understanding of the requirements to comply with this Act and the regulations, in so far as those requirements affect the directors, employees or agents concerned.

15    Pursuant to s 481 of the EPBC Act, the Court has the power to order a person to pay a pecuniary penalty for contravening a civil penalty provision:

481     Federal Court may order person to pay pecuniary penalty for contravening civil penalty provision

Application for order

(1)     Within 6 years of a person (the wrongdoer) contravening a civil penalty provision, the Minister may apply on behalf of the Commonwealth to the Federal Court for an order that the wrongdoer pay the Commonwealth a pecuniary penalty.

Court may order wrongdoer to pay pecuniary penalty

(2)     If the Court is satisfied that the wrongdoer has contravened a civil penalty provision, the Court may order the wrongdoer to pay to the Commonwealth for each contravention the pecuniary penalty that the Court determines is appropriate (but not more than the relevant amount specified for the provision).

Determining amount of pecuniary penalty

(3)     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.

16    Pursuant to s 482 of the EPBC Act, s 354 is a civil penalty provision for the purposes of s 481.

FACTS

Northern Seafoods’ commercial fishing business

17    At all relevant times and between 8 and 20 February 2022 (Relevant Period), Northern Seafoods was the operator of the Calypso Star, a trap fishing vessel licensed to fish in the Timor Reef Fishery (Licence Number A18/5015, issued under the Fisheries Act 1988 (NT)) (the Licence). The License authorised Box Fishing Pty Ltd to conduct commercial fishing in the area specified in the License known as the Timor Reef Fishery for the period 1 July 2021 to 30 June 2031.

18    During the Relevant Period, Box Fishing was a member of the same group of companies as Northern Seafoods.

19    During the Relevant Period, Northern Seafoods employed skippers and fishing crews for the Calypso Star. During the Relevant Period, Mr Anthony Charlton was a professional fisherman employed to conduct commercial fishing on behalf of Northern Seafoods, including as the skipper of the Calypso Star. On 9 March 2022, Northern Seafoods paid Mr Charlton for skippering the Calypso Star for the period 9 to 24 February 2022. The crew of the Calypso Star during the Relevant Period were also employed to conduct commercial fishing on behalf of Northern Seafoods. The crew acted in accordance with directions given by Mr Charlton during the Relevant Period.

Northern Seafoods’ commercial trap fishing activities in the Habitat Protection Zone

20    Between 8 and 21 February 2022, the skipper and crew of the Calypso Star conducted a 13 day commercial trap fishing trip.

21    From approximately 4.00 am to 2.15 pm on 19 February 2022, the skipper and crew of the Calypso Star conducted fishing for commercial purposes whilst in the Habitat Protection Zone of the Marine Park, using 49 traps.

22    As a result of the trap fishing in the Habitat Protection Zone, the skipper and crew of the Calypso Star caught approximately 120 kg of fish valued at approximately $600, including Goldband, Saddletail, Crimson Snapper, Red Emperor, Cod and Hussar, among other fish.

23    The fish caught by the Calypso Star as a result of the trap fishing in the Habitat Protection Zone were unloaded at Darwin and sold to a commercial seafood processor, wholesaler and exporter.

24    It is an agreed fact that the trap fishing in the Habitat Protection Zone occurred because the skipper of the Calypso Star was not aware he was inside the Habitat Protection Zone of the Marine Park.

25    The Calypso Star had on board a Vessel Monitoring System which provides the Department of Climate Change, Energy, the Environment and Water with information about the location of vessels in the Marine Park.

26    The Australian Marine Park Alert Service is a free tool available to all licenced Commonwealth commercial fishers through the Vessel Monitoring System already fitted to their vessels. The service is aimed at avoiding non-compliance in Australian marine parks. When a vessel enters an Australian marine park where the “nominated primary gear type” is not allowed, an alert message is sent via email to an onboard computer and / or as an SMS message to a nominated phone.

27    An automated Vessel Monitoring System alert was sent to the Calypso Star at 4.24 am on 19 February 2022 when the vessel entered the Habitat Protection Zone in the Marine Park to remind the skipper that trap fishing was not permitted in the area.

28    Onshore staff of Northern Seafoods also received a text message alert, simultaneous to the Vessel Monitoring System alert.

Alleged harm caused by the contravening trap fishing

29    The parties’ statement of agreed facts describes the potential adverse impacts to marine life in the Marine Park caused by commercial trap fishing in the Habitat Protection Zone:

(1)    The setting and retrieval of fish traps can lead to the damage and destruction of habitat components including corals, sponges and other epifauna due to dragging along the seafloor.

(2)    Traps can become snagged on the seafloor and break off. This can cause damage to seafloor habitats and result in “ghost fishing” that continues to trap species.

(3)    Traps, and lines connecting traps, impact marine megafauna through entanglement and by-catching of non-target or undersized species.

(4)    The Habitat Protection Zone is intended to provide refugia for ocean floor-dwelling species susceptible to trap fishing. The use of traps in the HPZ has the potential to deplete the stock of such species.

30    The parties agree that the value of fish caught as a result of the contravening trap fishing was low and Northern Seafoods made no profit from the conduct.

31    The parties agree that the fish caught as a result of the contravening trap fishing were not endangered species but the catch included native species of fish.

32    However, the parties agree that it is difficult to quantify the precise harm to the Marine Park caused by the contravening trap fishing in the present case.

Northern Seafoods’ compliance measures

33    The parties agree that Northern Seafoods had some compliance measures in place in the Relevant Period, although these measures were not always adhered to or effective.

34    Northern Seafoods equipped all vessels, including the Calypso Star, with a TimeZero navigation system. The system contained 10 years worth of data which appeared as different visual “layers” on top of the map. During the Relevant Period, the boundaries of the Habitat Protection Zone of the Marine Park were not clearly displayed on the TimeZero navigation system, depending on the configurations of the system utilised by the skipper.

35    Northern Seafoods provided hard copy and electronic marine charts to skippers which identified the location of the Marine Park and prohibited fishing areas.

36    Northern Seafoods did not provide formal training or induction to its skippers in relation to either the prohibited fishing zones or the TimeZero navigation system.

37    In 2014, Northern Seafoods introduced a requirement for skippers to complete pre-departure checklists. In September 2018, it introduced a requirement as part of the checklist to review Marine Park areas before departing on a fishing trip. One of the items on the checklist was “Marine Park Conditions and Areas reviewed – including Map and Class Approval on Board”.

38    The pre-departure checklist completed for the fishing trip conducted by the Calypso Star between 8 and 20 February 2022 shows the requirement to review the Marine Park areas as “ticked”, although the checklist is not signed or dated. The completed checklist was sent from the Calypso Star to Northern Seafoods on 8 February 2022.

39    Having regard to the above, Northern Seafoods did not take reasonable precautions or exercise due diligence to avoid the conduct contravening s 354(1)(f). The conduct of the skipper and crew of Calypso Star is taken to be engaged in by Northern Seafoods under s 498B of the EPBC Act.

Prior contraventions of the EPBC Act by Northern Seafoods

40    Northern Seafoods had received warnings about a commercial demersal fishing trip in another designated zone (Multiple Use Zone) of the Marine Park between 14 and 15 August 2018.

41    Northern Seafoods contravened s 354(1)(f) of the EPBC Act on 13 prior occasions in a commercial demersal trawl fishing trip of six days’ duration between 4 and 10 September 2018 in the Multiple Use Zone of the Marine Park.

42    On 3 June 2022, a penalty of $95,000 was imposed on Northern Seafoods by this Court in respect of the 13 contraventions, treated as a single course of conduct.

43    The trap fishing in the present case involved the use of demersal traps which is a lower impact fishing method relative to demersal trawl fishing.

Co-operation by Northern Seafoods

44    The parties agree that Northern Seafoods has co-operated and assisted with the investigation of alleged breaches of the EPBC Act by:

(a)    complying with its obligations to assist authorities during the investigation into the contraventions, including by providing information and documents; and

(b)    admitting the conduct at an early stage of the proceeding and joining with the Minister in filing statements of agreed facts and admissions and making joint submissions in relation to penalty.

Financial position of Northern Seafoods

45    Northern Seafoods ceased its fishing operations in 2022.

46    The Court was provided with a copy of Northern Seafoods’ financial report for the period ended 31 May 2024. The report contains comparative information from prior periods, though it is not clear whether that comparative information has been prepared on the basis of prior periods ended 31 May or 30 June.

47    The information disclosed in the Northern Seafoods financial report for the period ended 31 May 2024 shows:

(a)    for the 2022 financial period, Northern Seafoods made a net loss of $345,258 and was in a net liability position to the extent of $1.982 million; and

(b)    for the 2023 financial period, Northern Seafoods made a net profit of $775,816. However, its profit for this period included profits on the sale of assets. Its balance sheet for this period shows the total value of its current and fixed assets falling from $492,277 to $27,405.

Relief sought

48    Northern Seafoods admits that it contravened s 354(1)(f) of the EPBC Act on 49 occasions in conducting the contravening trap fishing. Northern Seafoods accepts that it was responsible for the operation of the Calypso Star at all relevant times between 8 and 20 February 2022. Northern Seafoods also accepts that during this period, it was responsible for the conduct of the skipper and fishing crew of the Calypso Star for the purposes of s 498B of the EPBC Act.

49    Northern Seafoods contravened s 354(1)(f) by its employees conducting trap fishing for commercial purposes using 49 traps in the Habitat Protection Zone of the Marine Park, which is prohibited by the Management Plan.

50    The Minister seeks a pecuniary penalty against Northern Seafoods in the amount of $70,000. The Minister also seeks a declaration that the contraventions occurred and an order that Northern Seafoods pay a contribution to the Minister’s costs of the proceeding in the amount of $20,000. Northern Seafoods joins the Minister in submitting that the penalty, declaration and order as to costs are appropriate and should be made.

Consideration: declaratory relief

51    The Court has discretionary power to make declarations under s 21 of the Federal Court of Australia Act 1976 (Cth).

52    I am satisfied that declaratory relief should be granted in the present case. I am satisfied that the contraventions that are the subject of the proposed declarations are established by the agreed facts and admissions and that there would be utility in making them. There is a “real and not a theoretical question” as to whether Northern Seafoods contravened the EPBC Act by conducting trap fishing within the Habitat Protection Zone: Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56; 201 FCR 378 at [12] (Greenwood, Logan and Yates JJ). The Minister as the person responsible for regulating the use of Commonwealth Reserves “has a real interest in raising it”. There is a “proper contradictor and real consequences” as Northern Seafoods has an interest in opposing the relief sought. The declaration sought by the Minister makes clear the precise liability for which a penalty is sought: Minister for the Environment v Northern Seafoods Pty Ltd [2022] FCA 656 (Northern Seafoods No 1) at [46] (Stewart J). The declarations that the Minister seeks “might have a wider industrial resonance”: MSY Technology at [31].

53    Because the declarations might have “a wider industrial resonance”, the fact that Northern Seafoods consents to the relief does not mean that it is pointless or should not, for that reason, be granted: MSY Technology at [30]–[33].

Consideration: pecuniary penalty

The power to impose penalties

54    Section 481 of the EPBC Act provides:

Application for order

(1)    Within 6 years of a person (the wrongdoer) contravening a civil penalty provision, the Minister may apply on behalf of the Commonwealth to the Federal Court for an order that the wrongdoer pay the Commonwealth a pecuniary penalty.

Court may order wrongdoer to pay pecuniary penalty

(2)    If the Court is satisfied that the wrongdoer has contravened a civil penalty provision, the Court may order the wrongdoer to pay to the Commonwealth for each contravention the pecuniary penalty that the Court determines is appropriate (but not more than the relevant amount specified for the provision).

Determining amount of pecuniary penalty

(3)    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.

Conduct contravening more than one civil penalty provision

(4)    If conduct constitutes a contravention of 2 or more civil penalty provisions, proceedings may be instituted under this Act against a person in relation to the contravention of any one or more of those provisions. However, the person is not liable to more than one pecuniary penalty under this section in respect of the same conduct.

55    For the reasons given above at [48]–[49], I am satisfied that Northern Seafoods has contravened a civil penalty provision. It therefore falls to me to consider what is an appropriate penalty in the circumstances.

The approach to agreed penalties

56    The approach to be taken when civil regulatory orders are sought on an agreed basis is explained in Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 at [46]–[60] (French CJ, Kiefel, Bell, Nettle and Gordon JJ). There is an important public policy involved in promoting predictability of outcome in civil penalty proceedings, and the practice of receiving and, if appropriate, accepting agreed penalty submissions increases the predictability of outcome for regulators and wrongdoers: Commonwealth v Director at [46].

57    The fixing of the quantum of a civil penalty is not an exact science. There is a permissible range and “courts have acknowledged that a particular figure cannot necessarily be said to be more appropriate than another” (Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 at [51] (Branson, Sackville and Gyles JJ)). If the figure submitted by the parties is within the range the Court is satisfied is permissible and appropriate, the Court will not depart from the submitted figure “merely because it might otherwise have been disposed to select some other figure” (NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; 71 FCR 285 at 291 (Burchett and Kiefel JJ); Commonwealth v Director at [47]).

58    The Court is not bound by the figure suggested by the parties. The Court asks “whether their proposal can be accepted as fixing an appropriate amount” (NW Frozen Foods at 291) and for that purpose the Court must satisfy itself that the submitted penalty is appropriate: Commonwealth v Director at [48].

59    The general rule was expressed by the High Court in Commonwealth v Director at [58] as follows:

Subject to the court being sufficiently persuaded of the accuracy of the parties’ agreement as to facts and consequences, and that the penalty which the parties propose is an appropriate remedy in the circumstances thus revealed, it is consistent with principle and, for the reasons identified in Allied Mills [(1981) 37 ALR 256 at 259 (Sheppard J)], highly desirable in practice for the court to accept the parties’ proposal and therefore impose the proposed penalty.

60    Given the parties’ signed written statement of agreed facts and supplementary statement of agreed facts were adduced in evidence, s 191 of the Evidence Act limits the fact-finding role of the Court in the present proceedings. Because of s 191(2)(a) of the Evidence Act, it is unnecessary for this Court to independently adjudicate on whether the agreed facts exist. The Court needs to be satisfied that the agreed facts on their face provide a sufficient foundation for the declaration and orders sought: Australian Securities and Investments Commission v Commonwealth Bank of Australia [2020] FCA 790 at [12] (Beach J).

The purpose of civil penalties

61    The purpose of a civil penalty is primarily, if not solely, the promotion of the public interest in compliance with the provisions of the relevant statute by the deterrence of further contraventions of the statute: Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 274 CLR 450 at [9] and [15] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ); Minister for Sustainability, Environment, Water, Population and Communities v Woodley [2012] FCA 957 at [47]–[50] (Foster J); Northern Seafoods No 1 at [47]–[50] (Stewart J); Minister for Environment v Thermal Dell Pty Ltd [2014] FCA 1442 at [37] (Jagot J). The public interest in promoting compliance with the EPBC Act is well-recognised: see for example, Northern Seafoods No 1 at [83].

62    Because deterrence is the object of a civil penalty, the amount of the penalty should not be greater than is necessary to achieve that object. The penalty is not to be so high as to be oppressive: Pattinson at [40].

63    The object of imposing a penalty is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the statute: Pattinson at [15]. A civil penalty “must be fixed with a view to ensuring that the penalty is not such as to be regarded by [the] offender or others as an acceptable cost of doing business”: Pattinson at [17], citing Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; 287 ALR 249 at [62] (Keane CJ, Finn and Gilmour JJ).

64    It is incorrect to set a penalty with reference to what is proportionate to the seriousness of the conduct that constituted the particular contravention: Pattinson at [10]. It is relevant to consider not only the character of the conduct giving rise to the particular contravention but also the character of the contravenor: Pattinson at [19].

65    It is incorrect to view the maximum penalty as being reserved for only the most serious examples of offending conduct; what is required is that there be “some reasonable relationship between the theoretical maximum and the final penalty imposed” (Pattinson at [10], citing Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 at [156] (Jagot, Yates and Bromwich JJ)). This relationship of “reasonableness” may be established by reference to the circumstances of the contravenor as well as by the circumstances of the conduct involved in the contravention. That is so because either set of circumstances may have a bearing upon the extent of the need for deterrence in the penalty to be imposed: Pattinson at [55].

66    In the present case, the principles espoused in Pattinson are reflected in the mandatory considerations set out in s 481 of the EPBC Act, which requires consideration of the circumstances of the contravention and the contravening history of the contravenor.

General deterrence

67    There are two aspects to deterrence – specific deterrence and general deterrence. In the present case, the focus is on general deterrence. Northern Seafoods ceased commercial fishing operations in 2022.

68    In having regard to the joint submissions on penalty, I have taken into account that as the Minister is charged with regulating activities in the Marine Park, it is to be expected that the Department will be in a position to offer informed submissions as to the level of penalty necessary to achieve compliance: Commonwealth v Director at [60].

Relevant matters

69    In determining the pecuniary penalty, the Court must have regard to all relevant matters, including the specific matters set out in s 481(3)(a) to (d).

(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.

The nature and extent of the contraventions

70    The contraventions involve the setting and retrieval of 49 demersal traps in the Habitat Protection Zone of the Marine Park.

71    Northern Seafoods was responsible for the conduct of the trap fishing through the skipper, Mr Charlton, and the crew of the Calypso Star. The failure of Northern Seafoods to take reasonable steps to prevent the contraventions that occurred was a serious breach of its statutory obligations under the EPBC Act.

72    The trap fishing was for commercial purposes and resulted in the capture and sale of approximately 120 kg of fish.

73    The contraventions were not intentional.

The nature and extent of any loss or damage suffered as a result of the contraventions

74    The parties agree that the fish caught as a result of the contravening trap fishing were not endangered species but the catch included native species of fish such as Goldband, Saddletail, Crimson Snapper, Red Emperor, Cod and Hussar. These species of fish may not be caught within the Habitat Protection Zone for commercial purposes.

75    The parties agree that the quantity and value of fish caught as a result of the contravening trap fishing was low and Northern Seafoods made no profit from the conduct.

76    The parties agree that it is difficult to quantify the precise harm to the Marine Park caused by the contravening trap fishing in the present case.

77    The objective of the Habitat Protection Zone is to prohibit activities that harm or cause destruction to seafloor habitats. The use of traps in the Habitat Protection Zone has the potential to deplete the stock of ocean floor-dwelling species susceptible to trap fishing, which the zone is intended to protect. The setting and retrieval of fish traps poses a risk of damage and destruction of habitat components including corals, sponges and other epifauna due to dragging along the seafloor and if they become snagged or break off, can cause damage to seafloor habitats and can continue to trap species after the conclusion of the fishing trip. Both small and large marine species can be impacted. Traps, and lines connecting traps, can entangle larger marine fauna and undersized species can get caught in the traps.

78    Because commercial trap fishing poses a risk of significant harm to marine life and to the seabed habitat in the Habitat Protection Zone, it is important that a penalty of sufficient weight is imposed to achieve general deterrence. A penalty for this type of contravening conduct cannot become a cost of conducting fishing operations.

The circumstances in which the contraventions took place

79    At the time of the contravening conduct, Northern Seafoods was aware that the Marine Park was a Commonwealth Reserve and that a Management Plan was in place.

80    The contraventions occurred in the present case because the skipper of the Calypso Star was not aware he was inside the Habitat Protection Zone of the Marine Park where commercial trap fishing was prohibited. It was agreed by the parties that the contraventions did not arise because of a deliberate intention to contravene the EPBC Act.

81    The contraventions in the present case arose from Northern Seafoods’ failure to take necessary steps to ensure that when it conducted permitted fishing activities in the Timor Reef Fishery, it did not engage in prohibited activities in the Marine Park, having regard to the different zones within the Marine Park.

82    At the time the Calypso Star embarked on the commercial fishing trip on 8 February 2022, Northern Seafoods had some compliance measures in place, although these measures were not always adhered to or effective and Northern Seafoods was the defendant in other civil penalty proceedings involving contraventions of the EPBC Act: Northern Seafoods No 1.

83    In the present case:

(1)    Although the skipper was required to review the Marine Park areas before departing as part of the pre-departure checklist, the checklist for the fishing trip commencing on 8 February 2022 was not signed by the skipper.

(2)    Although the Calypso Star was equipped with a TimeZero navigation system, the system did not clearly display the boundaries of the Habitat Protection Zone.

(3)    Northern Seafoods did not provide formal training to its skippers in relation to the prohibited fishing zones or the TimeZero navigation system.

(4)    Via its Vessel Monitoring System, at 4.24 am on 19 February 2022, the Calypso Star was sent an automated alert that it had entered the Habitat Protection Zone and that trap fishing was not permitted in that area. Northern Seafoods’ on-shore staff also received a text message alert at that time.

84    A failure to take necessary steps to ensure that prohibited fishing activities are not conducted in Commonwealth Reserves is not an uncommon failure of commercial fishing companies: see for example Thermal Dell; Minister for the Environment v Lucky S Fishing Pty Ltd [2015] FCA 10; 323 ALR 723; Minister for Environment and Heritage v Warne [2007] FCA 599; Minister for the Environment and Heritage v Wilson [2004] FCA 6 and Woodley.

85    Because commercial fishing in protected areas may have the potential for significant financial rewards, it is important that a penalty not become a cost of doing business. The necessary information concerning Commonwealth Reserves to inform a business’s compliance program is publicly available, reducing the costs of compliance with the legislation. The consequences of non-compliance for Commonwealth Reserves, such as the Marine Park, are potentially very serious. Unless commercial fishing businesses take active and appropriate steps to ensure that they do not engage in prohibited commercial fishing activities in Commonwealth Reserves, those protected environments will continue to be at risk.

Whether the person has previously been found by the Court in proceedings under this Act to have engaged in any similar conduct

86    Northern Seafoods has been found to have contravened s 354(1)(f) of the EPBC Act on 13 prior occasions on a fishing trip by conducting commercial demersal trawl fishing shots in the Multiple Use Zone of the Marine Park in September 2018, in respect of which a penalty of $95,000 was imposed: Northern Seafoods No 1.

87    The contravening conduct in the present case took place prior to the delivery of judgment in the previous civil penalty proceedings. However, the commencement of civil penalty proceedings under the EPBC Act was ineffective in preventing Northern Seafoods from engaging in this further act of unlawful fishing.

88    Northern Seafoods’ continued failure underscores the need for a strong message to other commercial fishing businesses operating in fisheries proximate to Commonwealth Reserves.

Other relevant matters

89    Northern Seafoods is a small company. Size may be relevant to general deterrence because other potential contraveners are likely to take notice of penalties imposed on companies of a similar size: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) [2005] FCA 254; 215 ALR 281 at [9] (Merkel J).

90    Northern Seafoods’ capacity to pay is of less relevance to the objective of general deterrence because that objective involves a penalty being fixed that will deter others from engaging in similar contravening conduct in the future.

91    Although the value of fish caught and sold was very small in this case, commercial trap fishing has the potential for financial reward and when conducted in a Habitat Protected Zone poses a risk of significant environmental harm. The penalty imposed must have a sufficient “sting or burden” to deter others from engaging in such conduct: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; 262 CLR 157 at [116] (Keane, Nettle and Gordon JJ).

92    Northern Seafoods has provided a significant degree of co-operation. But for that co-operation, a significantly higher penalty would be warranted.

The maximum penalty

93    The maximum penalty for a single contravention of s 354(1)(f) by a body corporate at the relevant time equates to $1,110,000.

94    The maximum penalty may inform the assessment of a penalty of appropriate deterrent value. What is required is that there be “some reasonable relationship between the theoretical maximum and the final penalty imposed”: Pattinson at [10], citing Reckitt Benckiser at [156].

Multiple contraventions

95    Section 481(2) of the EPBC Act provides for a pecuniary penalty that the Court determines is appropriate “for each contravention” of a civil penalty provision. Relevantly, a contravention consists of “tak[ing] an action for commercial purposes” where such an action is not permitted by a Management Plan: s 354(f) of the EPBC Act.

96    The laying of each fish trap constitutes a separate action and hence contravention. There were 49 such contraventions in the present case.

97    Given the number of contraventions, the total maximum penalty is so high as to no longer be meaningful. Here, the statutory maximum would be $54,390,000.

98    This is a case in which recourse to the course of conduct and totality and parity principles may assist as analytical tools in assessing the pecuniary penalty reasonably necessary to deter future contraventions: Pattinson at [45].

Course of conduct

99    Although separate contraventions arising from separate acts attract separate penalties, it may not be appropriate to impose separate penalties for the same wrongful act. So much is recognised in s 481(4) of the EPBC Act.

100    The course of conduct principle is an analytical tool that may be useful in determining an appropriate civil penalty where closely related conduct has given rise to multiple contraventions. It is important to identify whether multiple contraventions constitute a single course of conduct or separate instances of conduct “to ensure that an appropriate deterrent effect is achieved by the imposition of the penalty or penalties in respect of that particular conduct”: Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2017] FCAFC 159; 258 FCR 312 at [424] (Middleton, Beach and Moshinsky JJ).

101    Whether multiple contraventions should be treated as arising from the same course of conduct for the purposes of assessing a pecuniary penalty depends on the interrelationship between the legal and factual elements of the contraventions: Cement Australia at [421]–[424]. Where the factual and legal elements are interrelated, the application of the course of conduct principle can be useful in determining whether the penalty is appropriate to deter contravening conduct.

102    The course of conduct principle does not convert multiple contraventions into a single contravention. Nor, even if the contraventions are properly characterised as arising from a single course of conduct, is a judge obliged to apply the principle if the resulting penalty fails to reflect the seriousness of the contravening conduct: Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39 at [42] (Middleton and Gordon JJ).

103    Here, the same conduct (the setting and retrieval of fishing traps) was repeated on a single day (within a 10 hour period) in the same location (the Habitat Protection Zone of the Marine Park) by the same group of employees in the course of the same fishing trip. In the present circumstances I am satisfied that it is appropriate to group the 49 contraventions into a single course of conduct for the purposes of determining an appropriate penalty. None of the contraventions was intentional. To use the language of Stewart J in Northern Seafoods (No 1) at [68], the contraventions were closely related in time, space and commercial endeavour.

104    Furthermore, it is not possible to separately identify the risk of harm arising from each of the contraventions. Particularly in circumstances where it cannot be said that one contravention caused more harm than another, the penalty imposed needs to reflect the seriousness of the entirety of the contravening conduct: Northern Seafoods No 1 at [69].

Totality principle

105    The totality principle requires the Court to review the aggregate penalty to ensure it is just and appropriate: Chief Executive Officer of the Australian Transaction Reports and Analysis Centre v Westpac Banking Corporation [2020] FCA 1538 at [69] (Beach J).

106    Given the application of the course of conduct principle in the circumstances of this case, I do not consider it necessary to apply the totality principle to make a separate adjustment to the proposed penalty amount.

Parity

107    Differences in underlying facts and circumstances together with the fact that the determination of an appropriate penalty involves an intuitive synthesis of relevant factors mean there is usually little to be gained by comparing penalties imposed in other cases: Singtel Optus at [60] (Keane CJ, Finn and Gilmour JJ); Australian Securities and Investments Commission v Commonwealth Bank of Australia [2020] FCA 790 at [77] (Beach J).

108    It is however worthwhile noting that I am satisfied that the conduct in the present case involves a lesser risk of damage to the seabed and to marine life than the conduct before Stewart J in Northern Seafoods No 1. In particular, by its nature, trawl fishing involves a higher risk of greater damage to the seabed.

Is the agreed penalty an appropriate penalty?

109    As mentioned, the parties have agreed a penalty of $70,000 for the contraventions.

110    I am satisfied that a pecuniary penalty of $70,000 is within an appropriate range to achieve the object of deterrence having regard to the circumstances of this case.

111    There are a number of circumstances that suggest to me that a higher penalty may have been appropriate had it not been for the significant co-operation of Northern Seafoods. This is not the first contravention of s 354(1)(f) by Northern Seafoods. As Stewart J observed in Northern Seafoods (No 1) at [83], the industry as a whole has a lamentable record of contraventions of this nature. There is also the significant public interest in the protection of marine habitats and the marine life they support.

112    However, taking into account the fact that the relevant regulator responsible for the EPBC Act, which can be taken to have extensive knowledge of the industry, considers the penalty to be an appropriate penalty; the quantum of the penalty relative to the value of the fish caught (over 116 times in value); the constructive approach taken by Northern Seafoods; and that it is “highly desirable” (Commonwealth v Director at [58]) that the Court accept the parties’ proposal, I am satisfied that in the circumstances of this case $70,000 is an appropriate penalty.

113    I also note that the parties have agreed that Northern Seafoods will pay a contribution of $20,000 to the Minister’s costs of the proceeding.

Disposition

114    For the above reasons, I am satisfied that the form of the declarations and orders as to penalties and costs, as agreed by the parties, should be made.

Associate:

Dated:    25 February 2025