WA shark cull: EPBC Act exemption doesn’t hold water

We learned overnight that the Commonwealth Environment Minister, Greg Hunt, has issued an exemption under the EPBC Act for the WA government’s proposed shark baiting program. The decision raises some serious concerns that require careful scrutiny.

We learned overnight that the Commonwealth Environment Minister, Greg Hunt, has issued an exemption under the EPBC Act for the WA government’s proposed shark baiting program.

The decision raises some serious concerns that require careful scrutiny.

The exemption arises under Section 158, a little-used section of the EPBC Act that allows an exemption to be granted from the usual requirements of the Act on “national interest” grounds.

National interest is not defined in the legislation.  Section 158 provides some examples of things that the Minister might consider in determining the national interest – “Australia’s defence or security or a national emergency” – while also making it clear that this list is not intended to be exhaustive, a standard legislative drafting technique where the discretion provided by the law is intended to be broad and flexible.

The discretion is not, however, intended to be open-ended.   Clearly, the suspension of the usual rules intended to protect threatened species such as the Great White Shark should only occur in exceptional circumstances. Using such exemptions too frequently would undermine the legal protection that the Act is intended to provide, and would be inconsistent with the international obligations which the legislation implements.

The fact that it is a “national interest” exemption and the examples provided – “Australia’s defence or security or a national emergency” –  back up the view that the free pass that the legislation provides for ought only to be exercised in very limited circumstances.

The history of the application of the provision to date is mostly consistent with this position.  As you will see from the list on the Department’s website, the exemption has not been utilised very often since the Act commenced in 2000.

Most examples are in fact situations where the Act has been suspended to allow urgent  catch-and-recover programs for threatened species on the precipice of extinction.  The construction of an asylum seeker detention facility on Christmas Island is an anomaly (but we already know that rationality and the rule of law have a tenuous history when it comes to asylum seekers).

These examples aside, the exemption has typically been used to deal with emergencies: the Montara oil spill, locust plagues in SA, Black Saturday bushfires in Victoria.

So does the WA government’s shark baiting program qualify as being in the national interest?   You can reach your own conclusion by checking out the reasons  Minister Hunt has published for his decisions and as well as the letter he has sent to WA premier Colin Barnett.

Conservation groups like the Humane Society International, with a good understanding of the science and the likely impacts of the program have already come out strongly against the issue of an exemption, a position that seems to be supported by expert scientific commentary from WA.

The issue is a difficult one, but it’s difficult not to be struck by how much the baiting program seems to be driven by the need to manage the perception of risk rather than any solid evidence that the actual risk of shark attack will be reduced as a result of the program.

One thing that the impact assessment processes usually require under the EPBC Act is proper investigation and analysis, so that decisions can be informed by solid evidence.  The issue of an exemption removes this incentive.

Those who will be questioning today whether this decision is really in the national interest are right to be concerned.

As a footnote there’s something else that concerns me about the process here also.

As late as yesterday the Guardian and WA papers gave the impression that the question of whether an exemption should be issued was still under consideration.  It’s now clear that this was not the case.  As the notices that have now been published demonstrate, Minister Hunt made his decision to exempt the baiting program on 10 January 2014.  He signed the a statement of reasons for his decision on 15 January 2014.   However we’ve been kept in the dark until yesterday evening, when these documents went up on the Department’s website.

There’s nothing illegal here – the Act requires the notices to be published within 10 days of the decision.  The reasons for this 10 day delay are not clear – it could just be a reflection of the fact that when the Act was introduced in 1999 it was thought that the novel idea of publishing notices on the web was something that could not be done instantaneously.

Whatever the reasons for the 10 day time limit, the practice for some time now, as far as I can recall, has been for decisions to be notified immediately. This is appropriate, I think, in terms of transparency and accountability for decision making.  It’s unfortunate that in this case, the Minister seems to have decided to run out the clock and wait the full 10 days before letting us know how he has interpreted our national interest.

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