The Independent Member for Denison, Andrew Wilkie, has been advised by the Commonwealth Ombudsman that AFMA did in fact fail to comply with the Fisheries Administration Act when it set the quota relevant to the super trawler.
Over the last two months Mr Wilkie has lodged a number of complaints with the Ombudsman regarding AFMA's conduct when setting the quota. She agreed to investigate and this became central to Environment Minister Tony Burke's condemnation of AFMA and Independent Rob Oakeshott's decision to support banning the vessel.
"This is a dramatic development and a thumping win for proper process and the rule of law,"
Mr Wilkie said. "No less than the Commonwealth Ombudsman has agreed AFMA has acted unlawfully, and this should rule a line under the whole sorry super trawler saga and compel the Senate to kill the project forever next Monday.
"Moreover the Ombudsman has informed me she is investigating 'other matters' which adds to the case that AFMA is in serious need of reform, that the Government's decision to stop the boat is entirely warranted and that the House of Representative's passing of legislation was the right thing to do. It's up to the Senate now to finish the job.
"Super trawlers stink, but even worse is government agencies thinking they're above the law. Hopefully this will lead to changes which might give us much more confidence in future that our environment as well as recreational and sensible commercial fishing is protected." A copy of the Commonwealth Ombudsman's latest letter to Mr Wilkie is attached.
Over the last two months Mr Wilkie has lodged a number of complaints with the Ombudsman regarding AFMA's conduct when setting the quota. She agreed to investigate and this became central to Environment Minister Tony Burke's condemnation of AFMA and Independent Rob Oakeshott's decision to support banning the vessel.
"This is a dramatic development and a thumping win for proper process and the rule of law,"
Mr Wilkie said. "No less than the Commonwealth Ombudsman has agreed AFMA has acted unlawfully, and this should rule a line under the whole sorry super trawler saga and compel the Senate to kill the project forever next Monday.
"Moreover the Ombudsman has informed me she is investigating 'other matters' which adds to the case that AFMA is in serious need of reform, that the Government's decision to stop the boat is entirely warranted and that the House of Representative's passing of legislation was the right thing to do. It's up to the Senate now to finish the job.
"Super trawlers stink, but even worse is government agencies thinking they're above the law. Hopefully this will lead to changes which might give us much more confidence in future that our environment as well as recreational and sensible commercial fishing is protected." A copy of the Commonwealth Ombudsman's latest letter to Mr Wilkie is attached.
Our ref: 2012-300213
14 September 2012
Mr Andrew Wilkie MP
Dear Mr Wilkie
I am writing to provide you with an update on our investigation of your complaint about the
Australian Fisheries Management Authority (AFMA).
Your specific concerns relate to AFMA's administrative process in setting the Total Allowable Catch (TAC) in the small pelagic fishery for 2012-13, and the failure of its South East Management Advisory Committee (SEMAC) to exclude a committee member, Mr Gerry Geen. from its meeting of 28 February 2012, after Mr Geen declared a 'conflict of interest' in TAC deliberations listed for that meeting. You have also raised concerns about the presentation of dissenting members' views of the Small Pelagic Fishery Resource Assessment Group (SPFRAG) to SEMAC which inform AFMA's formal determination of the TAC.
SEMAC compliance with s64C of the Fisheries Administration Act 1991
The key issue that you have raised is whether SEMAC complied with s.64C of the Fisheries Administration Act 1991 (the Act) which sets out the procedures that must be followed when a committee member declares a conflict of interest in matters for deliberation by SEMAC. Relevantly, s.64C(4)(a) of the Act requires that "[u]nless the committee otherwise determines! the member must not be present during deliberation by the committee on the matter".
On 28 February 2012, Mr Geen declared a conflict of interest in matters for deliberation by SEMAC. The declaration was formally noted and recorded by the SEMAC chairperson. The chairperson did not seek a final position from Mr Geen on the TAC for jack mackerel (east) due to his declared conflict of interest. However, Mr Geen was allowed to remain in the meeting and to participate in deliberations on the TAC.
In the course of our investigation, AFMA has admitted that the SEMAC failed to comply with
s.64C of the Act in this regard. By allowing Mr Geen to remain in the meeting while the TAC
matter was deliberated, after noting his conflict of interest as the holder of statutory fishing
rights for the fishery, the SEMAC chairperson failed to followthe process set out under s.64C
of the Act.
SUPER trawlers will be prevented from operating in Victorian waters under a Baillieu government ban designed to protect the state's recreational and commercial fishing interests.
http://www.smh.com.au/environment/conservation/baillieu-bans-super-trawler-from-victorian-waters-20120915-25zgn.html
14 September 2012
Mr Andrew Wilkie MP
Dear Mr Wilkie
I am writing to provide you with an update on our investigation of your complaint about the
Australian Fisheries Management Authority (AFMA).
Your specific concerns relate to AFMA's administrative process in setting the Total Allowable Catch (TAC) in the small pelagic fishery for 2012-13, and the failure of its South East Management Advisory Committee (SEMAC) to exclude a committee member, Mr Gerry Geen. from its meeting of 28 February 2012, after Mr Geen declared a 'conflict of interest' in TAC deliberations listed for that meeting. You have also raised concerns about the presentation of dissenting members' views of the Small Pelagic Fishery Resource Assessment Group (SPFRAG) to SEMAC which inform AFMA's formal determination of the TAC.
SEMAC compliance with s64C of the Fisheries Administration Act 1991
The key issue that you have raised is whether SEMAC complied with s.64C of the Fisheries Administration Act 1991 (the Act) which sets out the procedures that must be followed when a committee member declares a conflict of interest in matters for deliberation by SEMAC. Relevantly, s.64C(4)(a) of the Act requires that "[u]nless the committee otherwise determines! the member must not be present during deliberation by the committee on the matter".
On 28 February 2012, Mr Geen declared a conflict of interest in matters for deliberation by SEMAC. The declaration was formally noted and recorded by the SEMAC chairperson. The chairperson did not seek a final position from Mr Geen on the TAC for jack mackerel (east) due to his declared conflict of interest. However, Mr Geen was allowed to remain in the meeting and to participate in deliberations on the TAC.
In the course of our investigation, AFMA has admitted that the SEMAC failed to comply with
s.64C of the Act in this regard. By allowing Mr Geen to remain in the meeting while the TAC
matter was deliberated, after noting his conflict of interest as the holder of statutory fishing
rights for the fishery, the SEMAC chairperson failed to followthe process set out under s.64C
of the Act.
| Monday September 17, 2012 | |
AFMA Chair hits out at unlawful quota claims
Chairman of
the Australian Fisheries Management Authority Commission, Michael Egan,
said today he was very confident that the catch limits set by the
Commission for the Small Pelagic Fishery were legally set.
Mr Egan was
responding to recent claims by Andrew Wilkie MP and an ‘update’ letter
sent to Mr Wilkie by the Commonwealth Ombudsman’s office.
He said that neither
Mr Wilkie, nor the Ombudsman’s office, seemed to understand that the
total allowable catches for this fishery were not set by the South East
Management Advisory Committee, nor were they set by AFMA management or
staff.
“It is the
responsibility of the AFMA Commission, a completely non-partisan,
independent statutory authority, to set the total allowable catches for
Commonwealth fisheries”, Mr Egan said.
“In setting these
catch limits the Commission considers the advice of AFMA staff, together
with scientific advice from our relevant resource assessment group and
the advice of the relevant management advisory committee, which is set
up to gather the opinions of various interest groups, including
environmental and recreational fishing groups, fishing industry
participants, scientists, economists and the states.”
“The views of
members of these groups are not always unanimous, and the Commission
takes into consideration all views expressed by their members in the
full knowledge that they will have different perspectives, different
interests and different agendas. Ensuring that all interests are heard
is the very purpose of the laws that require these groups to be
established.
“I emphasise,
however, that none of these groups set the catch limits --- not the
resource assessment groups, not the management advisory committees, not
the CEO of AFMA or AFMA’s staff --- but rather the independent AFMA
Commission.”
Mr Egan said he was disappointed that the Ombudsman’s office had not made this clear in its ‘update’ letter to Mr Wilkie.
“I am sorry also
that the Ombudsman’s office did not point out to Mr Wilkie the
representational role of management advisory committees. If it had, Mr
Wilkie and others may have been less ready to assert the commission of a
capital offence by SEMAC, rather than an unintentional slip-up.
“I am even more
concerned, however, that the Ombudsman’s office provided Mr Wilkie with
its ‘update’ in time for his protest rally on Saturday, but has so far
not corresponded with either AFMA or the AFMA Commission.
“I would have
expected this not only as a matter of courtesy, but also to provide us
with a fair and reasonable opportunity to remedy what I believe are
significant oversights in the Ombudsman’s ‘update’. In fact, we would
not even have had access to the ‘update’ if Mr Wilkie had not attached
it to his media release.
“Given that the
Ombudsman’s office had stated that its investigation of Mr Wilkie’s
complaint was to be ‘conducted in private’, I believe that AFMA and the
AFMA Commission are entitled to a full explanation.
“It is vitally
important that the Australian public, complainants and government
agencies and officials should always have confidence in the bona fides
of the Ombudsman’s office.
“Given the recent
controversy over the Ombudsman’s office preparing questions for Greens
senators, I would have expected it to be exceedingly careful not to
behave in any way which raised the slightest concerns about its
impartiality and objectivity.”
Mr Egan said the AFMA Commission had nine members appointed during the terms of fisheries ministers Burke and Ludwig.
“They include five
who are fisheries and scientific experts, four who are current or former
heads or deputy heads of Commonwealth, state and overseas agencies, a
current chief executive of a national professional association and
myself, a former NSW Treasurer and Minister for State Development.
“All of us, together
with the AFMA staff, are committed to the well-being of Australia’s
maritime environment and the sustainability of Australia’s fisheries.”
Contact Sophie Dening, AFMA Communications (02) 6225 5541 (W) or 0447 942 840 (M) or sophie.dening@afma.gov.au
| |
SUPER trawlers will be prevented from operating in Victorian waters under a Baillieu government ban designed to protect the state's recreational and commercial fishing interests.
http://www.smh.com.au/environment/conservation/baillieu-bans-super-trawler-from-victorian-waters-20120915-25zgn.html
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