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.