The case for sharks on the reef

The case for sharks on the reef

State of Queensland through the Department of Agriculture and Fisheries v Humane Society International (Australia) Inc [2019] FCAFC 163

On 18 September 2019, the State of Queensland (State) lost its appeal to the Full Federal Court in the above proceedings. The appeal sought to overturn a decision by the Administrative Appeals Tribunal (AAT) to grant a permit for the Great Barrier Reef (GBR) Marine Park Shark Control Program (Marine Park SCP), subject to conditions that prohibit the deliberate killing of target sharks. 

The decision has ignited strong public debate, with some commentary playing to people’s innate fear of sharks. Yet expert scientific opinion states there is no evidence that lethal shark control programs reduce the risk of unprovoked encounters with sharks. The experts do conclude, however, that this out of date practice has an unacceptable impact on our apex marine predators. In turn, this has broader effects on the already stressed ecosystem of the GBR. This evidence was accepted by the AAT when it decided that the Marine Park SCP should be conducted on a non-lethal basis (so far as possible having regard to safety and animal welfare concerns).

Great Barrier Reef World Heritage Listing

The GBR was declared a World Heritage Area in 1981 because of its 'outstanding universal value'. The GBR is one of the most remarkable places on earth.

Despite a legislative scheme specifically designed to protect the GBR, it, and the animals that call it home, are facing many ongoing threats. The importance of sharks for the GBR ecosystem was highlighted in the 2019 Outlook Report on the state of the GBR. This report listed overfishing (including from the former lethal Marine Park SCP) as one of the key threats facing shark species in the GBR.[1] The report also downgraded the outlook for the GBR as a whole from “poor” to “very poor”.[2] 

The World Heritage Committee has requested Australia to prepare another report by 1 December 2019 to address concerns that the GBR may need to be listed as ‘in danger.’ That report is required to:

“…demonstrat[e] the effective and sustained protection of [its] Outstanding Universal Value and effective performance in meeting the targets established under the 2050 LTSP, linked to the findings of the 2014 and 2019 Great Barrier Reef Outlook Reports, for examination by the World Heritage Committee at its 44th session in 2020.”[3]

Legislative scheme

The Commonwealth legislative regime[4] is designed to ensure the protection and conservation of the GBR and its outstanding universal value.[5]  The scheme establishes the Great Barrier Reef Marine Park Authority (Authority). The Authority is tasked with managing the Marine Park in a way that is consistent with the objects of the Great Barrier Reef Marine Park Act 1975 (Cth), the principles of ecological sustainable use, and the protection of the world heritage values of the GBR.

The ways in which the GBR can be lawfully used by people is also regulated under the scheme. This includes the operation of programs to ‘take’ animals that pose a threat to people in certain zones within the GBR. As the AAT and Federal Court have stated, the term ‘take’ (as defined in the legislation) is not limited to killing animals, and includes actions such as removing, catching and carrying away.[6]

At the state level, the Fisheries Act 1994 (Qld) requires the State to develop programs to reduce the possibility of shark encounters with people in the coastal waters of Queensland.[7] Importantly, there is no requirement for these programs to involve the killing of sharks, or for the State to operate a lethal shark control program. 

AAT Proceedings

The AAT proceedings, brought by EDO NSW on behalf of the Humane Society International (Australia), involved a challenge to the Authority’s decision to permit the State to continue deliberately killing sharks in the GBR through the Marine Park SCP for a further 10 years. 

The AAT heard evidence from eminent shark experts on the effectiveness of the lethal component of the Marine Park SCP, and the impact of the lethal program on the tiger shark population and the GBR ecosystem as a whole.  The State’s own expert, Associate Professor Darryl McPhee, gave evidence that he would not advocate for a lethal shark control program anywhere in the world.  This evidence was given when Associate Professor McPhee was asked about his role in advising government and local authorities on shark mitigation strategies.  When questioned about the non-lethal programs currently operating in KwaZulu-Natal and NSW, Associate Professor McPhee agreed with our client’s expert, Dr Robbins, that, based on data that has emerged from those programs, the shift from lethal to non-lethal has had no discernible effect on unprovoked shark encounters. 

AAT decision

In April 2019, the AAT granted the State a permit to carry out a program to take sharks that pose a threat to human safety in the GBR. However, the AAT made a clear finding, based on expert evidence, that the impact of a lethal shark control program on the tiger shark population and the GBR ecosystem is significant, and that the killing of sharks caught on a drum line “should be a last resort, and not occur as a matter of practice”.[8] The AAT also applied the precautionary principle in refusing to permit the lethal aspect of the program on the basis of the importance of the GBR, the “substantial stress” the GBR ecosystem is presently under, the significant decrease in tiger shark populations, and the “fact that trophic cascade may occur with the reduction in a population of an apex predator”.[9]  The AAT acknowledged that there is a “lack of full scientific certainty” that killing tiger sharks is having an adverse effect on the broader GBR ecosystem, however given the above factors a precautionary approach is necessary. 

As a result of these findings, the AAT imposed a condition on the permit requiring the State to carry out the Marine Park SCP in a manner that avoids, to the greatest extent possible, the lethal take of shark species. Other conditions include a requirement to tag, release and relocate all tiger, bull and white sharks caught on drum lines, to trial and implement SMART drumlines as soon as reasonably possible, and to conduct research into the tiger shark population and alternative non-lethal shark control measures.[10]

Federal Court decision

The AAT’s decision has now been upheld by the Federal Court and accordingly the conditions imposed by the AAT remain in place. In summary, the Federal Court held that the AAT:

  • correctly examined the effectiveness of the Marine Park SCP,
  • did not misunderstand the precautionary principle,
  • was entitled to give more weight to expert evidence than to lay evidence about the success of the program, and
  • did not fail to afford procedural fairness in relation to the issue of time-staging of the permit variation conditions – as the State did have the opportunity to be heard on this issue.[11]

While the Queensland Government can continue to run the Marine Park SCP, it is now incumbent on the State to ensure that the program is carried out in accordance with the conditions imposed by the AAT. These conditions will bring the Marine Park SCP in line with all other shark control programs within Australia and around the world by making the program non-lethal to the greatest extent possible. 

 

 

[1] GBRMPA, Outlook Report 2019, pp 35 and 63.

[2] GBRMPA, Outlook Report 2019, p v.

[3] 41st session of World Heritage Committee, Krakow, Poland 2-12 July 2017, Great Barrier Reef (Australia) (N 154) Decision: 41 COM 7B.24 The World Heritage Committee, 1. 

[4] Great Barrier Reef Marine Park Act 1975 (Cth), Great Barrier Reef Marine Park Regulations 2019 (Cth) and the Great Barrier Reef Marine Park Zoning Plan 2003

[5] The main object of the GBRMP Act is to provide for the long term protection and conservation of the environment, biodiversity and heritage values” of the GBR.  The “other” objects of the Act relate to public use, education and research in the GBR however, these objects must be consistent with the main object.

[6] Great Barrier Reef Marine Park Act 1975 (Cth), s3.                                                                                                                     

[7] Fisheries Act 1994 (Qld), s 3(3).

[8] AAT judgment, at [96].

[9] AAT judgment, at [87].

[10] AAT judgment, at [97].

[11] Ibid, at [131].