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Illegal, unregulated and unreported fishing

Scope and definitions

The detrimental impact of illegal fishing in all its forms cuts a broad swath—depleting fish stocks, damaging fish ecosystems and disrupting the livelihood of lawful fishers (Agnew & Barnes 2004). Fish are an unconfined resource and up until recently, exposed to uncontrolled exploitation. This exploitation has been exacerbated over the course of the twentieth century and into the current century through the use of large-haul, highly destructive fishing methods (eg long lining), an indiscriminate approach from many fishing nations as to where, how and what they fished and soaring market prices.

The term IUU fishing was first used in 1997 by CCAMLR to describe the exploitative fishing methods employed to catch the endangered Patagonian Toothfish in the Southern Ocean. The formal definitions of IUU fishing are presented in Table 20. IUU fishing in Australia is multifaceted, involving foreign and national fishers alike. It occurs in the commercial and recreational sectors and targets marine and inland river species. The illegal behaviour spans degrees of complicity from the ignorant to organised criminal activity and includes operations that deliberately defy international conventions.

Table 20: Definition of IUU fishing

Activities

Illegal fishing

  • conducted by national or foreign vessels in waters under the jurisdiction of a state, without the permission of that state, or in contravention of its laws and regulations;
  • conducted by vessels flying the flag of states that are parties to a relevant regional fisheries management organisation but operate in contravention of the conservation and management measures adopted by that organisation and by which the states are bound, or relevant provisions of the applicable international laws; or
  • in violation of national laws or international obligations, including those undertaken by cooperating states to a relevant regional fisheries management organisation;

Activities

Unreported fishing

  • which have not been reported, or have been misrepresented, to the relevant national authority, in contravention of national laws and regulations; or
  • undertaken in the area of competence of a relevant regional fisheries management organisation which have not been reported or have been misreported, in contravention of the reporting procedures of that organisation.

Activities

Unregulated fishing

  • in the area of application of a relevant regional fisheries management organisation that are conducted by vessels without nationality, or by those flying the flag of a state not party to that organisation, or by a fishing entity, in a manner that is not consistent with or contravenes the conservation and management measures of that organisation; or
  • in areas or for fish stocks in relation to which there are no applicable conservation or management measures and where such fishing activities are conducted in a manner consistent with state responsibilities for the conservation of living marine resources under international law.

Source: International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (s 3.1–3.3; FAO 2001)

 

Laws and regulations

International controls and agreements

Serious depletions in fish stocks, acknowledgement of the toll certain fishing techniques take on other marine and bird species, and the threefold need to protect coastal states' fishing rights, promote sustainable fisheries management and safeguard fish populations, ushered in a compilation of international and national controls governing access and how fish can be taken. Moreover, there was the need to highlight illegal fishing as an international problem, hence the importance of developing enforcement actions at different jurisdictional levels to counteract the damage.

International recognition of illegal fishing activities began with UNCLOS. The primary tenet of UNCLOS was the designation of coastal state rights with regard to adjacent seas, by designating sea areas into one of five zones:

  • territorial seas;
  • continental shelf;
  • EEZ;
  • contiguous zone; and
  • high seas.

Especially pertinent to the practice of, and challenges in, deterring IUU fishing are the arrangements for fishing ventures occurring in the EEZs and the so-called high seas. EEZs refer to the sea mass extending 200 nautical miles from the shore or baseline and represent the area within which coastal state(s) have jurisdiction over all activities related to living and non-living resources. States are directed to address illegal fishing by preventing over-fishing in their designated EEZs and to seek permission before fishing in other EEZs. However, the UNCLOS does not make provisions for coastal state sovereignty over these zones or the right to stop vessels from other states from passing through them (Baird 2007). The high seas comprise all seas not enclosed within the other four sectors. While there is the expectation in UNCLOS that states will actively participate in the conservation of fish stocks in the high seas, there is also the precept that only flag states have jurisdiction over their vessels operating in these waters. This clause has proved to be a highly problematic factor in preventing high seas illegal fishing (Balton 2004).

In the following decade came the 1991 FAO Code of Conduct for Responsible Fisheries, the 1993 FAO Compliance Agreement and the 1995 UN Fish Stocks Agreement. The purpose of the Code of Conduct, which was originally presented in 1991 and formally adopted in October 1995, was to set down principles and international standards for the conservation, management and development of fisheries. While voluntary in nature, parts of the Code are based on relevant rules of international law, such as UNCLOS. The 1993 Compliance Agreement, which forms part (and the only legally-binding component) of the 1995 Code of Conduct, calls for flag states to ensure any vessel carrying their flag is authorised by them to fish on the high seas. It does this by making the authorisation dependant on the state having control over the vessel's fishing operations and rescinding authorisation if said vessel is found in contempt of regional fishery laws. The 1995 Fish Stocks Agreement represents the UN's implementation of specifications in the 1982 UNCLOS on the conservation and management of fish stocks and migratory fish species.

The first instrument to exclusively target IUU fishing came with the passing of the International Plan of Action–Illegal, Unreported and Unregulated Fishing (IPOA–IUU), in 2001 at the 23rd Session of the FAO Committee on Fisheries. This followed the UN General Assembly's adoption of Resolution 54/32, which makes reference to IUU fishing. Like most other international fisheries directives, the IPOA–IUU is a purely voluntary instrument, laying out the foundation for states or regions to implement national or regional plans of action to combat IUU fishing. Twelve national plans of action are listed on the FAO site, one of which is the Australian National Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (AUS-NPOA-IUU; Aust DAFF 2005). The AUS-NPOA-IUU, which was presented to the FAO in March 2003, proposes schemes for implementation to combat IUU fishing on both domestic and international fronts and represents the basis on which Commonwealth and state/territory fisheries legislation were formed.

National laws

The Australian EEZ, in which Australia has sovereign rights over the conservation, use and management of fisheries, is known as the Australian Fishing Zone (or AFZ). The AFZ extends 200 nautical miles out from the mainland and Tasmanian coastline, as well as from Australia's offshore territories of Christmas Island, Cocos (Keeling) Islands in the north, Norfolk Island to the east and Macquarie, Heard and McDonald Islands in the south. Twenty-three Commonwealth fisheries are established in the AFZ.

Australia has entered into bilateral relationships with neighbouring countries regarding access to, and the use of, marine resources within the AFZ or contiguous waters. Nothing has been formalised with East Timor as yet but arrangements have been established with:

  • Indonesia—1974 memorandum of understanding (MOU) regarding the Operations of Indonesian Traditional Fishermen in Areas of the Australian Fishing Zone and Continental Shelf (MOU Box). The 1974 MOU Box designates an area within the AFZ in which Indonesian fishers can continue their traditional practice of fishing for species such as trepang, trochus, abalone and sponges.
  • Papua New Guinea—the Torres Strait Treaty (TST) ascertained sovereignty and marine boundaries for the taking of swimming and sedentary species and cooperative behaviours for the conservation and management of shared fisheries. Like the MOU Box, the TST also recognises the traditional livelihoods of Indigenous inhabitants. This treaty has been legislated in the Torres Strait Fisheries Act 1984 (Cth).
  • New Zealand—the South Tasman Rise Arrangement (STR Arrangement) takes in the undersea ridge from the south of Tasmania to the Southern Ocean and encompasses parts of the AFZ and the high seas. The STR Arrangement follows on from the now expired MOU between Australia and New Zealand and is used as a conservation and management tool for responsible fishing of orange roughy by fishers from both countries.

Australia's commercial fisheries are managed by the Commonwealth and/or the states/Northern Territory. Offshore Constitutional Settlements (OCS) arrangements are in place for fisheries that overlap more than one jurisdiction. Where they do not exist, state/territory laws apply to waters up to three nautical miles from the coast and Commonwealth laws to those extending to the 200 nautical mile cut-off point.

The conservation and management of Commonwealth fisheries is legislated in the Fisheries Management Act 1991 (Cth), which designates the AFZ and fishing-related offences. The Fisheries Administration Act 1991 establishes the Australian Fisheries Management Authority (AFMA) as the primary agency in charge of Commonwealth fisheries management and their responsibilities to this task. Compliance and enforcement activities related to domestic fishing in Commonwealth waters are predominantly undertaken by AFMA officers. In dealing with illegal fishing by foreign fishers, AFMA coordinates with Coastwatch, ACBOS, the Australian Defence Force (ADF) and relevant state and territory fisheries authorities.

All other marine fisheries, as well as inland fisheries, are managed by state and territory agencies. Fisheries laws are generally laid out in the one statute, the exception being Tasmania which has separate statutes regarding the management of marine fisheries (Living Marine Resources Management Act 1995) and inland fisheries (Inland Fisheries Act 1995; see Table 21). Subordinate legislation includes fisheries- or species-specific management plans. Fisheries management plans aim to protect particular aquatic species, promote responsible and sustainable fishing practices (both recreational and commercial) and maintain a viable commercial fishing industry. For example, Queensland has instigated management plans for five fisheries under their jurisdiction, namely the East Coast Trawl, Coral Reef Fin Fish, Freshwater, Gulf of Carpentaria Inshore Fin Fish and Spanner Crab fisheries.

Table 21: Fisheries legislation
Jurisdiction Primary statute(s)

Commonwealth

Fisheries Management Act 1991

NSW

Fisheries Management Act 1994

Vic

Fisheries Act 1995

Qld

Fisheries Act 1994

WA

Fish Resources Management Act 1994

SA

Fisheries Management Act 2007

Tas

Living Marine Resources Management Act 1995

Inland Fisheries Act 1995

ACT

Fisheries Act 2000

NT

Fisheries Act

The Commonwealth has generally limited its jurisdiction to commercial fisheries, whereas state and territory authorities manage both commercial and recreational fishing, and aquaculture. Before undertaking commercial fishing ventures in Commonwealth fisheries, a fishing permit must be granted (Fisheries Management Act 1991 (Cth) s 32). Fishing permits allow the taking of Commonwealth-managed species and prescribes conditions of fishing, such as where the operation can take place, the sort of boat that can be used, the type of species that may be lawfully taken and fishing methods that may be used (AFMA 2008a). While there is a provision which states that permits are effective for five years, in reality, most are for a period of 12 months, albeit with the option to renew on an annual basis. Where statutory management plans apply to fisheries, commercial fishers are granted Statutory Fishing Rights (SFRs) to fish there (Fisheries Management Act 1991 (Cth) s 31). SFRs refer to fish quotas, the type of boat that can be used, quantity of fishing equipment and permission to fish (AFMA 2008a). Currently, SFRs are valid for five of the 23 Commonwealth fisheries. For some fisheries, fish receivers (ie processors, wholesalers and retailers) must also obtain a permit (Fisheries Management Act 1991 (Cth) s 91) which is valid for a period of 12 months. Unlike fishing permits, fish receiver permits cannot be transferred.

Authorisations at the state and territory level entail licensing systems for commercial, and for some jurisdictions, recreational fishing. A licence is required to fish recreationally in New South Wales, Victoria and Western Australia, although persons aged under 18 years or over 70 years are exempt in Victoria. Recreational (or 'angling') licences are required in Tasmania to fish inland rivers (except if fishing in a registered private fishery) but not for recreational sea fishing if using a rod or line. A licence is needed if taking abalone or rock lobster. No formal authorisation for recreational fishing is required in Queensland (unless fishing from stocked areas), South Australia or the Northern Territory (unless fishing from rivers on Aboriginal land).

Licences are mandatory for commercial fishing in all jurisdictions and generally attached to a specific fishery. Other components of commercial fishing, such as commercial fishing vessels, processors and receivers, and in some states, fishing gear, are also subject to licensing or registration, as are commercial charter operations. Vessel monitoring systems are mandatory in most, but not all, jurisdictions. Before obtaining a commercial licence in New South Wales or South Australia, a fisher must undergo a history check for violations against fisheries regulations in their home state and other jurisdictions. Further rules and regulations cover bag and quota limits, minimum legal size of fish caught, gear restrictions, sale of catch (recreational), reporting catch protocols (commercial), non-taking of protected species and respecting area enclosures.

Offences and penalties

Fisheries offences mostly entail breaches against the rules and regulations summarised above, unauthorised fishing ventures (ie fishing without a licence or permit), or fishing during closed seasons. Actual taking of protected or threatened species is also proscribed in fisheries statutes and there is overlap with similar offences listed in threatened species statutes.

Penalties vary considerably for contraventions of state and territory fisheries laws (see Table 22). South Australia, Western Australia, the Northern Territory and Tasmania (in their Inland Fisheries Act 1995) employ a tiered penalty scheme based on offence history. In the former two states, the penalty scheme is further broken down by the protection status of the fish species taken. In South Australia, penalties refer to priority and all other species, whereas in Western Australia, four categories of priority species are prescribed.

Table 22: Maximum penalties for selected fisheries offences
Act and associated selected offences Maximum penalty

Fisheries Management Act 1991 (Cth)

Driftnet fishing

$55,000 (natural person)

  • in the AFZ; or

$275,000 (body corporate)

  • outside AFZ from Australian oat (s 13)

Take prescribed fish (including black cod and marlin)

$13,750

  • in the AFZ; or
  • outside AFZ from Australian boat (s 15–15A)

Failure by holder of fish-receiver permit to provide information or return on fish received (s 93)

Six months imprisonment

Using foreign boat for recreational fishing in AFZ (s 99)

$27,500

Using foreign boat for unauthorised commercial fishing in AFZ (s 100–100B)

$275,000

  • strict liability (s 100)
  • reckless and intentional use (s 100A)

$825,000 (boat exceeding 24m in length)

$550,000 (boat less than 24m in length)

  • reckless and intentional use in territorial sea of AFZ (s 100B)

$825,000 and/or three years imprisonment (boat exceeding 24m in length)

$550,000 and/or two years imprisonment (boat less than 24m in length)

Having foreign boat equipped for fishing in AFZ

$275,000

  • strict liability (s 101)
  • reckless and intentional use (s 101A)

$550,000

  • reckless and intentions use in territorial sea of AFZ (s 101AA)

$550,000 and/or two years imprisonment

Using boat outside AFZ to support illegal foreign fishing in AFZ (s 101B)

$550,000

Landing of fish in Australia by foreign boats (s 103)

$5,500

Contravene conditions of treaty licence by foreign boats (s 104)

As above

Unauthorised fishing by Australian-flagged boat on high seas (s 105A)

$55,000

  • fishing for WCPFC fish stock—strict liability (s 105AA)

$6,600

  • fishing for WCPFC fish stock (s 105AB)

$55,000

Fisheries Management Act 1994 (NSW)

Take or possess fish in contravention of fishing closure order (s 14(1)–(2))

$22,000 and/or six months imprisonment (natural person)

$110,000 (body corporate)

Possess or sell prohibited size fish (s 16)

As above

Exceed daily bag limit (ss 17–18)

As above

Take or possess protected fish species (s 19)

As above

Take or sell declared species from waters protected from commercial fishing (s 20)

$110,00a and/or six months imprisonment (natural person)

Possess fish illegally take (s 35)

$11,000 and/or three months imprisonment (natural person)

$55,000 (body corporate)

Unlicensed commercial fishing (s 102)

$110,000a (natural person)

Contravene conditions of commercial fishing licence (s 104) and commercial fishing boat licence (s 108)

$11,000

Fisheries Act 1995 (Vic)

Unauthorised commercial taking fish or fish bait for sale, or use of commercial equipment (s 36)

$4,536.80

Use or possess commercial abalone equipment to take more than twice the catch limit (s 37)

$22,684.00

Unauthorised use of access licence (s 39)

$22,684a and/or 12 months imprisonment (natural person)

Unauthorised receipt or selling of priority fish species, or receipt for sale of any other fish species (s 40)

As above

Unauthorised recreational fishing or use of recreational fishing equipment (s 44)

$1,134.20 (if using hoop); $567.10 (all other)

Take in excess of amount specified on Abalone Fishery Access Licence (s 66M)

$5,671 (first offence) and forfeiture of abalone quota units, up to $22,684 and/or 12 months imprisonment (fourth or more offence)

Unauthorised taking, injuring, destroying, keeping, selling etc protected aquatic biota (s 71)

$5,671

Traffic in a commercial quantity of a priority species (s 111A)

10 years imprisonment

Take or possess a commercial quantity of a priority species within 24 hours (s 111B–C)

Five years imprisonment

Use of foreign boat for fishing (s 117)

$45,358 and/or two years imprisonment

Fisheries Act 1994 (Qld)

Contravene closed season or closed (s 77)

$75,000

Take, possess, sell etc regulated species (s 78)

As above

Unlawfully contravene quota (s 79)

$150,000

Contravene condition of authority (s 79A)

$7,500

Use of authorised equipment eg explosives (s 80)

$22,500

Possession of fish taken in contravention of other fisheries legislation (s 88A)

$75,000

Fish Resources Management Act 1994 (WA)b

Contravene prohibited fishing order (s 43)

First offence:

Category 1 fish—$5,000 (natural person)a

Category 2 fish—$3,000 (natural person)a

Category 3 fish—$2,000 (natural person)a

Other category fish—$1,000 (natural person)a

Second or subsequent offence: double penalty per category fish

Take, possess, sell, consign etc totally protected fish (s 46)

As above

Take, possess, sell, consign etc commercially protected fish (s 47)

As above

Exceed bag limit (s 50(3))

As above

Possess excess bag limit (s 51)

As above

Mutilate fish to prevent determination (s 49)

$25,000 (individual)a

Contravene major provision of management plan (s 75)

First offence: $25,000 and/or one year (natural person)a

Second or subsequent offence: double penalty as above

Contravene conditions of licence or permit (s 77)

First offence: $10,000 (natural person)a

Second or subsequent offence: double penalty as above

Use of unauthorised equipment eg explosives, noxious substances (s 170)

$25,000 and/or 12 months imprisonment

Use of foreign vessel for fishing or processing or use of vessel equipped with fishing gear (ss 174–175)

$150,000 and/or four years imprisonment

Fisheries Management Act 2007 (SA)

Unauthorised commercial fishing (s 52)

  • priority species

$250,000 and/or four years imprisonment (natural person)a

  • other species

$50,000 and/or two years imprisonment (natural person)a

Use of unregistered boat(s) and fishing devices (s 53)

$50,000 (natural person)

$250,000 (body corporate)

Contravene conditions of licence (s 55)

  • quota entitlement

$20,000

  • other

$10,000

Prescribed fishing activity (s 70)

  • priority species

First offence: $10,000

Second offence: $20,000

Third and subsequent offences: $35,000

  • other species

First offence: $5,000

Second offence: $10,000

Third and subsequent offences: $20,000

Take, injure, interfere or harass etc. protected species (s 71)

First offence:

$10,000 (natural person)

$50,000 (body corporate)

Second and subsequent offences: double penalty as above

Unauthorised sale, purchase or possession of priority species (s 72)

  • priority species

$50,000 and/or four years imprisonment (natural person)

$250,000 (body corporate)

  • other species

$20,000 and/or two years imprisonment (natural person)

$100,000 (body corporate)

Possess excess of fixed quantity (s 73)

  • priority species

First offence: $10,000

Second offence: $20,000

Third and subsequent offences: $35,000

  • other species

First offence: $5,000

Second offence: $10,000

Third and subsequent offences: $20,000

Trafficking of priority species (s 74)

$100,000 and/or four years imprisonment (natural person)

$500,000 (body corporate)

Living Marine Resources Management Act 1995 (Tas)

Contravene conditions of permit (s 15)

$100,000 and/or one year imprisonment

Contravention of rules relating to fisheries (s 42)

$500,000 and/or two years imprisonment

Taking, possessing or selling species during closed season (s 59)

$500,000 and/or one year imprisonment

Fishing without a licence (s 60)

$500,000 and/or two years imprisonment

Marine farming without a marine farming licence (s 64)

$50,000 and or 12 months imprisonment

Unlicensed fish processing (s 67)

$50,000

Process illegally-taken fish (s 68(4))

$500,000 and/or two years imprisonment

Contravene conditions of licence (s 86A)

As above

Contravene rules for protection of marine areas and habitats (including prohibition of fishing; taking of species, size, quantity; use of equipment etc) (s 104)

As above

Contravene marine resources management plan (s 113)

$500,000

Use of prohibited equipment eg explosives and substances (s 255)

$500,000 and/or two years imprisonment

Use of foreign boat (s258) and equipped with fishing gear (s 259)

As above

Possess, purchase or sell illegally-taken fish (s 262)

$200,000 and/or one year imprisonment

Inland Fisheries Act 1995 (Tas)

Unlicensed commercial fishing (s 21)

$100,000

Contravene conditions of commercial licence (s 25)

As above

Unlicensed recreational fishing of acclimatised or indigenous fish (s 37)

First offence:

$200–500

Second and subsequent offences:

$500–1,000

Unauthorised dealing with applicable fish (s 62)

$100,000

Contravene conditions of fish dealers certificate (s 64)

As above

Use of prohibited equipment and substances (ss 126–127)

$1,000–5,000

Taking of protected species (s 131)

$5,000

Unauthorised selling and buying (s 134)

$2,000

Unlawful possession of salmon during prescribe period (s 136)

$1,000

Disturbing spawn (s 137)

As above

Unauthorised taking of juvenile eel (s 140A)

$10,000

Contravening conditions of licence (s 140B)

$100,00

Fisheries Act 2000 (ACT)

Taking fish for sale without licence etc (s 74)

$5,000 and/or six months imprisonment

Taking fish contrary to scientific licence (s 75)

$1,000

Importing or exporting live fish without authority (s 76)

$10,000 and/or 12 months imprisonment

Trafficking in commercial quantity of fish of priority species (s 76A)

$100,000 and/or 10 years imprisonment

Taking commercial quantity of fish of priority species (s 76B)

As above

Possessing commercial quantity of fish of a priority species (s 76C)

$50,000 and/or five years imprisonment

Possessing fish obtained illegally (s 77)

$10,000 and/or 12 months imprisonment

Takes fish in contravention of a fishing closure (s 80)

$5,000

Prohibited size and weight offences (s 81)

$5,000 and/or six months imprisonment

Quantity of fish offences (s 82)

$3,000

Non-permitted fishing gear (s 86)

$5,000

Unauthorised use and possession of commercial fishing gear (s 87)

$5,000

Unauthorised damage or disturbance to spawning areas (s 88)

$3,000

Fisheries Act (NT)

Unlicensed taking, farming, selling, processing etc fish (s 10)

$20,000 and/or two years imprisonment (taking & farming)

$10,000 and/or one year imprisonment

Failure to exercise direct control over operations (s 13A)

  • fails to comply with conditions or not in vicinity of operations

$20,000

  • other offence under the Act during conduct of licensed operations

$10,000

Use prohibited equipment (s 15(c)–(d))

First offence:

$5,000 or six months imprisonment

Second and subsequent: double penalty as above

Use of unregistered \ vessel for licensed fishing

$100,000 or three years imprisonment (foreign vessel)

$20,000 or two years imprisonment (other)

Falsely identifying fish for purpose of sale (s 41)

First offence:

$5,000 or six months imprisonment

Second offence:

$10,000 or 12 months imprisonment

Third and subsequent offences: double second offence penalty as above

Buying, selling or possessing fish in contravention of the Act (s 42)

$20,000 ($50 per fish in excess)

a: Monetary penalty is double if offender is a body corporate

b: See Schedule 4, Fish Resources Management Regulations 1995 for categorisation of aquatic species

Note: Victorian monetary penalty based on penalty unit amount for 2008–09 ($113.42); Monetary Units Act 2004

The most severe penalties are generally reserved for the taking of protected species, unlicensed commercial fishing and fishing during a declared closed season or in contravention of a management plan. Victoria and South Australia include an offence of 'trafficking' a priority species which, in Victoria, is assigned a maximum penalty of 10 years imprisonment (Fisheries Act 1995 s 10) and in South Australia, a maximum fine of $100,000 and/or four years imprisonment (for a natural person) or $500,000 (for a body corporate; Fisheries Management Act 2007 s 74). The use of a foreign fishing vessel to fish in state waters (and having fishing equipment on board said vessel) attracts additional high penalties in Victoria, Western Australia, Tasmania and the Northern Territory.

'Additional' penalties may also be imposed for fishing offences. There are monetary penalties based on the number of days the offence continues, the number of fish taken or the value of the fish. The latter penalty, for persons convicted of fisheries offences in South Australia, is calculated as five times the wholesale price or $100,000, whichever is the lesser amount (Fisheries Management Act 2007 s 110). It is up to 10 times the value for persons found in breach of Tasmania's marine fisheries laws (Living Marine Resources Management Act 1995 s 267). Courts can strip or temporarily confiscate licences or permits from fishers, order a reduction in licence entitlements (usually the quota allocation) and impose conditions on how and where fishers conduct their commercial activities. In more serious cases, prohibition or control orders are used which effectively ban fishers from specified waters, being on a specified class of vessel, possessing certain fishing devices or catching specified fish resources (eg see Fisheries Management Act 1994 (NSW), s 82; Fisheries Act 1995 (Vic) s 120; Fish Resources Management Act 1994 (WA) s 225; Fisheries Management Act 2007 (SA) s 100). Prohibition orders are served in New South Wales for repeat offenders, defined as those who have committed no fewer than three offences. In Western Australia, repeat offenders are dealt with by automatic cancellation of their fishing licence (Fish Resources Management Act 1994 s 224).

Along with prescribing fishing offences similar to those in state and territory statutes, the Fisheries Management Act 1991 (Cth) includes laws related to Australia's obligations regarding illegal high seas fishing by Australian-flagged vessels and the protection of the AFZ from illegal foreign fishing. The latter comprises any recreational fishing from a foreign-owned boat and unauthorised commercial (or charter boat) fishing (ss 99–104).

Nature and extent

IUU fishing is mostly a domestic issue, perpetrated by local recreational and commercial fishers (Anderson & McCusker 2005). However, habitual incursions of foreign fishers into Australian waters, with the objective of taking high-value, often endangered marine species, have resulted in the use of considerable enforcement efforts to deter. Domestically, the most damaging illegal fishing is conducted by commercial fishers (Anderson & McCusker 2005; Palmer 2004).

Three broad groups of offenders engaged in domestic illegal fishing might be classified as:

  • habitual or repeat offenders;
  • opportunists; or
  • the ignorant (Vic ENRC 2002).

A considerable proportion of illegal fishing is probably perpetrated by 'the ignorant', who through a lack of knowledge of fisheries laws and regulations, or a lack of awareness about changes to said laws, 'inadvertently' illegally fish (Vic ENRC 2002). Opportunists, on the other hand, are cognisant of fisheries laws but on an occasional basis choose to contravene these laws to serve personal interests. The final group comprises the habitual offender, who regularly breaches fisheries regulations to take and sell high-value aquatic species for commercial gain. The opportunist and habitual offender occupy a spectrum of offenders motivated by personal gain, from fishers who take a conscious risk once in a while to organised, criminal operations (Vic ENRC 2002).

Illegal domestic fishing

Domestic illegal fishing activity is acknowledged as mostly 'small scale' and 'akin to low level non-compliance with regulations' (Putt & Anderson 2007). Nonetheless, even small-scale abuses can produce considerable damage if pursued habitually and extensively enough, especially if directed at species which are regulated or a favourite target for fishing ventures. Estimates of the percentage that illegal catches represent vary and tend to combine data on commercial illegal fishing with recreational illegal fishing. Anecdotal evidence referred to in a study of illegal fishing in New South Wales estimated that anywhere between 30 and 60 percent of 'legal' catch is actually taken illegally (Palmer 2004). For highly-valued species (such as abalone), illegal takes of 20 to 60 percent (in New South Wales) and 30 to 40 percent (in Victoria) have been cited (Palmer 2004; Vic ENRC 2002). The latter estimate, which equated to an illegal catch of 432 to 576 tonnes, is less than half the 1,527 tonnes presented in another submission to the same Victorian inquiry on illegal fishing (Vic ENRC 2002). This disparity illustrates the difficulty in deriving accepted estimates for an illegal behaviour not easily detected or quantifiable.

What is agreed is that most fishers, either recreational or commercial, are largely compliant with fishing laws (Putt & Anderson 2007), although the degree of such compliancy depends on whose views are being consulted. Key stakeholders interviewed for Putt and Anderson's (2007) report on crime in the Australian fishing industry stated an 85 to 90 percent compliance rate but fisheries officers, when consulted on levels of criminal activity in their area, suggested a lower percentage. The NSW Department of Primary Industries reports a compliance rate in 2007–08 of 91 percent (n=4,480) for commercial fishers and 90 percent (n=52,178) for recreational fishers (NSW DPI 2008). Overall, compliance for most Qld fisheries in 2008 was around 90 percent or higher (Qld DPI&F 2008a, 2008b, 2008c, 2008d, 2008e, 2008f, 2008g, 2008h, 2008i, 2008j, 2008k, 2008l, 2008m, 2008n).

Ignorance probably accounts for a sizeable proportion of illegal recreational fishing but the industry is not wholly immune to the deliberate flouting of fishing regulations. Common offences include exceeding quota or bag limits, taking undersized fish and using unauthorised equipment, such as traps, netting, long-lining and the use of multiple hooks (Fletcher & Santoro 2008, 2007; NSW DPI 2008; Palmer 2004; Qld DPI&F 2008a, 2008b, 2008c, 2008d, 2008e, 2008f, 2008g, 2008h, 2008i, 2008j, 2008k, 2008l, 2008m, 2008n; Vic ENRC 2002). The abuse of bag limits and the taking of undersized fish is especially problematic and the reviews of illegal fishing in New South Wales and Victoria collectively recommended a reduction in current bag limits (for particular species) as they were not only set too high but encouraged exploitation.

More insidious behaviour occurs in the commercial fishing industry. Propelled by profitability, commercially-harvested species are likelier targets of deliberate criminal action and subsequently at greatest risk of extensive harm. Fifty-two percent of fisheries officers (n=567) surveyed by Putt and Anderson (2007) estimated that around one-fifth of the commercial fishing industry in their locale as being actively engaged in illegal fishing or related criminal behaviour.

Illegality permeates all stages of the market, from poaching via processing through to consumer sales, as well as the receivers and buyers who transit fish through these key points (Tailby & Gant 2002). Illegal activity may take in:

  • exceeding the allowable quota and related docketing fraud;
  • failure to report catch;
  • under-reporting catch;
  • co-mingling illegal with legal catch;
  • selling commercial catch to clubs, restaurants, hotels or private individuals on a cash or barter basis; and
  • swapping catch between commercial and recreational allowances (Anderson & McCusker 2005; Tailby & Gant 2002).

There has been some discussion of the involvement of organised crime in illegal domestic fishing and (like the illegal trade in wildlife) its cohabitation with other illegal activities, notably money laundering and drug trafficking. Three key risk factors identified as facilitating organised criminal involvement in illegal fishing are:

  • structural nature of the industry (characterised by competition between small business ventures and overseas importers, plus the itinerant nature of some of the workforce);
  • profitability; and
  • entrepreneurship of organised crime groups (Putt & Anderson 2007).

Anecdotal evidence collected as part of Putt and Anderson's (2007) study revealed incidents of outlaw motorcycle gang involvement in the theft of pearls (Western Australia), sale of fishing licences (Northern Territory) and the illegal abalone trade (South Australia). The possible use of fishing vessels to transport drugs was also reported.

Vulnerability to illegal fishing may also arise from constrained fishing access. For example, the recreational marron fishery in the Southern Inland Region of Western Australia is deemed at high risk of illegal fishing, because the open season is restricted to just 23 days a year and many dams and catchments used to fish marron are now being closed (Fletcher & Santoro 2008, 2007). In southwest New South Wales, the depletion of inland river fish stocks brought about by the ongoing drought has made vulnerable species even more susceptible to illegal recreational fishing. Twelve percent (n=360) of fishers checked during eight special operations targeting the Murray River (between Albury and Mildura) and the Murrumbidgee River (Wagga Wagga to Balranald) were found in breach of one or more fishing laws, including taking of protected species or undersized specimens, or catching fish using illegal methods (NSW DPI 2008).

High market prices appear to the primary driver for much of the illegal commercial fishing activity. Certain marine species are particularly vulnerable to illegal harvesting; they are highly sought-after on international (particularly east Asian) markets and often located in isolated coastal areas where ongoing surveillance is not always feasible (Anderson & McCusker 2005). Abalone is the highest-profile marine species targeted by illegal poachers. Limited commercial licenses, the associated costs of entering the legal industry and the profitability of a highly desired resource fosters illegal harvesting (Tailby & Gant 2002). Some theft is recreational but the spread of the black market suggests that a sizeable quantity is poached using commercial-style equipment and with commercial intentions (Palmer 2004). There is also the infiltration of organised crime into the abalone market which is described as 'blatant' in its perseverance and affecting each stage of the trade (Vic ENRC 2002). Fisheries officers from six of the eight jurisdictions surveyed for the AIC study on illegal fishing nominated abalone as the most vulnerable to organised theft (Putt & Anderson 2007).

Other, similarly vulnerable fish are sharks for their fins and seahorses which are destined for overseas markets (ie primarily Chinese-speaking countries). Illegally-taken species for the domestic market include abalone, rock lobster and various species of native fish. Illegal exploitation of sharks for their fins, seahorses and rock lobster is particularly pronounced (the former is also targeted by foreign fishers) and some level of organised criminal activity exists here too (Putt & Anderson 2007). Also evident is poaching for the restaurant and café trade, which additionally affects reef fish, razor fish, dhufish, eel, yabbies and squid. Jurisdiction-specific issues with particular species are referred to in fish status reports, such as those surrounding blue swimmer and mud crabs (Qld DPI&F 2008a, 2000j), sawfish and marron (Fletcher & Santoro 2007) and southern rock lobster, blacklip abalone, garfish and King George whiting (SA PIRSA 2006). Some of this catch is sold to restaurants by a sub-group of loosely-organised recreational fishers, often ethnically- or culturally-based family groups who partake in illegal fishing to supplement the household income (Putt & Anderson 2007).

Illegal, unregulated and unreported fishing by foreign nationals

Northern waters

Most of the IUU fishing by foreign fishers in Australia's northern waters is done by Indonesian fishers, although vessels from Papua New Guinea and Taiwan have also been detected in the AFZ. As mentioned earlier, Australia entered into an arrangement with Indonesia in 1974 allowing 'traditional' Indonesian fishers to fish in an area of the AFZ known as the MOU Box and the waters enclosed within the reefs. An amendment in 1989 clarified the term traditional to exclude the use of motorised vessels and specified fishing equipment. IUU fishing by Indonesian fishers is characterised by non-traditional fishing ventures conducted in designated areas, or fishing outside designated areas.

In the period 2000 to 2006, the number of illegal fishing boats apprehended by Australian enforcement officers in the northern stretches of the AFZ rose from 78 to 368 (AFMA 2006, 2000). In 2005–06 alone, an average 12 foreign fishing vessels were intercepted each week (AFMA 2006). In 2007–08 and 2008–09, apprehension numbers dropped to 156 and 27 respectively (AFMA 2009, 2008b). These have been described as a 'significant' decline on previous years and interpreted as a direct outcome of the enforcement actions applied (AFMA 2009, 2008b, 2007a). In the same time, a total of 750 fishers were charged for offences against the Fisheries Management Act 1991 (Cth), Torres Strait Islander Fisheries Act 1984 (Cth), or Criminal Code Act 1995 (Cth).

Primary targets for these fishing ventures were (and continue to be) shark fin, trepang and reef fish fisheries. Factors thought to encourage the persistent incursion of Indonesian foreign fishers comprise:

  • intense fishing activity in Indonesian waters with a consequent depletion in traditionally relied upon fish stocks;
  • high international prices for target species; and
  • better returns for fishers whose economic prospects from other forms of employment or indeed legal fishing would be considerably less (Fox, Therik & Sen 2002; Sumaila, Alder & Keith 2004).

AFZ regions at particular threat of illegal fishing include the area around Ashmore Reef and the groundfish fisheries of the Timor and Arafura Seas (Aust DAFF 2005).

The sustained increase in illegal fishing in Australia's northern waters prompted the Australian Government to outlay an additional $389m (from the 2006–07 Federal Budget) to operate a whole-of-government deterrence scheme, involving the Department of Agriculture, Fisheries and Forestry, the Department of Defence, the Department of Immigration and Citizenship, ACBPS, AFP and the Commonwealth Department of Public Prosecutions. Much of this funding was directed at:

  • increasing and co-ordinating aerial and vessel surveillance to improve detection of illegal fishing vessels;
  • streamlining the process of apprehension, detention and prosecution of offenders; and
  • confiscation and destruction (for a guilty finding) of property (specifically fishing vessels).

The latter was deemed to be an especially effective deterrence tool, at least for the smaller operations where the cost of replacing the vessel would in all likelihood prohibit or impede fishers from returning. Fox, Therik and Sen's (2002) study of illegal fishing by traditional Indonesian fishers showed that confiscation and destruction of vessels did not impact too greatly on large-fleet operations, as vessels could be replaced at low cost and economic loss was recouped after two or three fishing trips. For smaller operators, the cost was much more substantial, as economic viability is concentrated in the one vessel. Instead of opting out of fishing, it seemed probable that fishers would, out of necessity, return to illegal fishing, either to continue generating an income better than what they can make back in their village or, if indebted to a financier, as captain or crew on another vessel (Fox, Therik & Sen 2002).

Southern ocean

If illegal foreign fishing vessel sightings are a gauge by which to measure the incidence of IUU fishing, then those occurring in the Southern Ocean are much less common than the situation in northern waters. The resources needed to reach and transverse the notoriously dangerous Southern Ocean probably accounts for the lower incidence, but the size and conditions of these waters also means that surveillance and chances of detection are much more restricted.

The object of most IUU fishing ventures in the Southern Ocean is the Patagonian toothfish, but an additional concern for Australia is preventing illegal harvesting of mackerel in the mackerel icefish fisheries that surround Heard and McDonald Islands (AFMA 2007b). Regular surveillance of these fisheries is conducted by Australian authorities but it is the exploitation of the Patagonian toothfish that the literature primarily covers.

Listed as endangered in the 2008 International Union for Conservation of Nature Red List, the Patagonian toothfish's vulnerability to over-fishing relates to the high market prices the species commands, exacerbated by its slow replacement rate and growth, and late maturity. The most recent, published data on illegal Patagonian toothfish catches comes from the mid-1990s to early 2000s, which estimates that in the years considered, a minimum of 30 percent of landed Patagonian toothfish were taken through IUU fishing (Levy, Prado & Tietze 1999; Miller 2004). In some years (and from specified regions), it was as high as 73 percent (eg 1996–97; Miller 2004) and 80 percent (1999; Agnew 2000). For the most recent year available (2002), the catch was estimated at 45 percent (CCAMLR Scientific Report cited in Sumaila, Alder & Keith 2004).

Recognition that toothfish stocks, and those of other Antarctic marine organisms, were at risk of serious depletion came much earlier with the establishment in 1982 of CCAMLR. The purpose of the Convention is the joint conservation of the highly fragile Antarctic ecosystem and maintenance of sustainable fisheries. CCAMLR states, of which Australia is one, are responsible for managing EEZs within the CCAMLR zone but are obliged to observe fishing regulations as established by CCAMLR regarding catch species, catch limits and permissible fishing equipment. More recent requirements include the mandatory use of vessel monitoring systems in vessels entering the CCAMLR zone and the implementation of the catch document scheme, whereby documents must be issued at the point of capture and when fish are landed to enable tracking of landing and trade flows.

Cooperative surveillance is another approach used by some CCAMLR states to deter IUU fishing. Australia and France have entered into a bilateral agreement, as transcribed in the 2004 Australia-France Surveillance Treaty and 2006 Australia-France Cooperative Fisheries Enforcement Treaty, to enable cooperative surveillance and enforcement in their respective EEZs in the Southern Ocean (Aust DEWHA 2007a). A similar arrangement is being established with South Africa with the signing in March 2007 of a Letter of Intent for future cooperation between the two countries on surveillance and enforcement (Aust DEWHA 2007b). These dual presences in the Southern Ocean are thought to have effected a decline in IUU fishing and recent AFMA reports indicated few or no foreign fishing vessel sightings (AFMA 2008b, 2007a). Nonetheless, sustained patrolling is expensive and can only cover those regions under the jurisdiction of the state or the CCAMLR zone (Sumaila, Alder & Keith 2004). Once outside this zone and on the high seas, the chances of detection are much lower.

IUU fishers thus take advantage of the dispersed distribution of the Patagonian toothfish and concentrate considerable fishing attention in areas where they are much less likely to get caught. Another much used tactic is working vessels registered to FOC countries (Agnew & Barnes 2004; Gianni & Simpson 2005). Under UNCLOS, flag states to which a vessel is registered are responsible for all high seas fishing activity those vessels engage in. Some FOC countries, however, are known or suspected to not always abide by these responsibilities (Agnew & Barnes 2004) and fishing vessels flying FOC are, in effect, given free rein to fish as and where they wish. Up to 15 percent of the large-scale fishing fleet in 2005 were flying FOC (Gianni & Simpson 2005) and such vessels are notorious for entering the waters of the Southern Ocean for Patagonian toothfish (Agnew & Barnes 2004). Indeed, some IUU fishing operations in the Southern Ocean were found to regularly change their flags— to reduce the chance of identification, keep operation costs down and evade fishing regulations—but others were apparently registering their vessels not with FOC countries but with CCAMLR member countries (Gianni & Simpson 2005). CCAMLR reports from 1997 (cited in Baird 2004) and 2002 (cited in Agnew & Barnes 2004) refer to at least half of IUU fishing vessels flying flags of CCAMLR states, notably Uruguay and Russia.

Reporting and detection

Compliance and enforcement roles are the responsibility of fisheries officers attached to AFMA (for Commonwealth fisheries) or relevant state/territory agencies. The Northern Territory and Tasmania are the exceptions where enforcement is assumed by police services (Putt & Anderson 2007). Enforcement activities in the Northern Territory are conducted by the Marine and Fisheries Enforcement Unit of the Northern Territory Police, Fire and Emergency Services. This unit is responsible for enforcing all territory and Commonwealth legislation covering the fishing industry. In Tasmania, rock lobster, abalone and scalefish fishing are monitored by various squads attached to the Tasmania Police Marine and Rescue Division. In the Australian Capital Territory, fisheries laws are enforced by conservation officers. A summary of enforcement powers across the jurisdictions is given in Putt and Anderson (2007).

AFMA manages Commonwealth fisheries, maintains the associated fisheries licence database and public register of permits and undertakes on-the-spot inspections and targeted operations to check for compliance and detect illegal fishing activity. Fishing vessels operating in Commonwealth fisheries are obliged to use Vessel Monitoring Systems (VMS) which enable back-to-base tracking of vessel position, course and speed in each of the fishing concessions (AFMA 2007c). Using spatial rules designated in fisheries management plans, data derived from VMS provides information on quota compliance and evidence of incursions into closed fisheries. To prevent taking of protected species and excess quota consignments, vessels are to make prior-to-landing reports of species catch and planned port destination (if working in one of three designated fisheries) and complete catch disposal records on species and weight, within 50 metres of point of landing. Auditing of the fish market is managed through a National Docketing System where all transactions of purchase and sale must be recorded.

As mentioned previously, AFMA works in coalition with Coastwatch (in northern waters), ACBPS and the ADF to detect illegal foreign fishing. Aircraft and vessel surveillance covers the northern waters and vessel surveillance in the southern waters. When a foreign fishing vessel is sighted and under the provisions of the Fisheries Management Act 1991 (Cth), the vessel can be overhauled and boarded, the captain and crew questioned, the catch inspected and, if illegal behaviour discovered, the vessel can be escorted into the closest harbour. Pursuits are officially permitted and costs of pursuits are retrievable under the Act (ss 106J¬–S). The most notorious pursuit so far involved the Uruguayan-flagged Viarsa 1 which attempted to outrun an ACBPS/Fisheries patrol boat before being arrested south of Cape Town (Australian Antarctic Division 2008).

Fisheries officers (and police in Tasmania and the Northern Territory) responsible for state waters and inland fisheries employ a mix of day and night, land and sea patrols, covert operations and regular compliance checks. Air surveillance is used in jurisdictions with long coastlines such as Western Australia. Special operations target species at particular risk (eg abalone, rock lobster), illegal practices and regions. The public are also encouraged to report any suspicion of illegal fishing activity, recreational or commercial, to fisheries department-operated hotlines.

Sanctioning

In their study of crime in the Australian fishing industry, Putt and Anderson (2007) questioned stakeholders regarding their views as to how seriously fishing offences are treated in Australia. The consensus was that prosecution proved difficult even for the most serious infringements and in jurisdictions such as Queensland, resulted in only a fraction of cases ever getting to trial (Putt & Anderson 2007). The type of offence also determined how the matter was dealt with. Stakeholders in New South Wales claimed that recreational fishing offences did not receive proper sanctioning attention unless a link between the offence and a commercial objective or outcome could be established.

When cases did get to court, the rate of successful prosecution was, in fact, high. Estimates of successful prosecution rates drawn from the aforementioned stakeholder consultations ranged from 57 to 80 percent in South Australia, 90 percent in the Northern Territory and 90 percent and above in New South Wales and Victoria (rates in other jurisdictions were not reported; Putt & Anderson 2007). Only one estimate could be derived from a review of annual fish status reports from fisheries/primary industry agencies; there was a 93 percent success rate for prosecutions in New South Wales in 2007–08 (NSW DPI 2008).

Illegal domestic fishing

Compiling information from agency publications on the sanctioning of domestic fishers is complicated by the variable nature of data on the number of offences detected, what those offences were and how they were dealt with. Table 23 breaks down the types of sanctions given for fishing offences detected in Commonwealth fisheries (in 2006–08), Queensland fisheries (2007) and Western Australian fisheries (2006–08). Infringement notices, or variants thereof, are the most common sanction received, followed by cautions. Prosecutions, however, were not uncommon. Prosecutions in Queensland and Western Australia usually followed detection of offences in fisheries or fishing regions that were home to highly-prized species, in areas of high fishing activity or for particular offences (eg taking, possessing or selling regulated fish, taking species regulated by size and gender, contravening closed waters notices). Most of the illegal activity discovered and dealt with in Western Australia in 2006–07 was perpetrated by recreational fishers but prosecutions usually targeted commercial fishers (Fletcher & Santoro 2007). The exceptions were for incidents of recreational fishing of rock lobster and marron, where there was greater temptation for illegal activity.

 

Table 23: Penalty options used for fishing offences detected in Commonwealth, Queensland and Western Australian fisheries
FisheriesPenalties Offences

Commonwealth fisheries (2006–08)

22 prosecutions

Take protected species (including shark finning), exceed quota and bycatch limits, fishing without authorisation, record keeping offences, VMS breach etc.

98 infringement notices

41 written cautions

Three verbal cautions

53 no further action

Nine no charge laid (CDPP)

Five statute of limitations expired

Queensland fisheries (2008)

  • Queensland Tropical Rock Lobster Fishery

Six infringement notices

Taking specimens regulated by size, number and gender

  • Spanner Crab Fish

One prosecution

Offences regarding apparatus and record keeping

Eight infringement notices

Five cautions

  • Rocky Reef Fin Fishery

88 infringement notices

Offences of taking specimens regulated by size and number, unauthorised commercial fishing, contravene closed waters

30 cautions

  • River and Inshore Bream Trail Fishery

One prosecution

Take or possess regulated species

  • Mud Crab Fishery

16 prosecutions

Take species regulated by size, gender and number, take fish in a prohibited way, apparatus offences etc

252 infringement notices

51 cautions

  • Marine Aquarium Fishery

Three infringement notices

Take species regulated by size etc

Two cautions

  • Gulf of Carpentaria Line Fishery

Six infringement notices

Take specimen regulated by size, contravene closed waters

Three cautions

  • Gulf of Carpentaria Inshore Fin Fishery

Four prosecutions

Contravene closed waters, apparatus offences, undertake act only holder of authority can do

Four infringement notices

Four cautions

  • East Coast Fin Fish Trail Fishery

None

  • Eel Fishery

None

  • East Coast Spanish Mackerel Fishery

One prosecution

Take specimen regulated by size, undertake act only holder of authority can do, record keeping offences etc

Eight infringement notices

Three cautions

  • East Coast Inshore Fin Fishery

19 prosecutions

Take or sell regulated fish; contravene closed waters; apparatus offences; take fish in prohibited way; undertake act only holder of authority can do etc

164 infringement notices

67 cautions

  • East Coast Beche-de-Mer Fishery

Two infringement notices

Boat offences, contravene condition of authority

One caution

  • Blue Swimmer Crab Fishery

One prosecution

Take specimen regulated by size and gender, apparatus offences, record keeping offences etc

18 infringement notices

Nine cautions

Western Australia (2006–07)

  • West Coast Bioregion

106 prosecutions

Primarily offences related to taking of rock lobsters

247 notices

835 warnings

  • Gascoyne Bioregion

17 prosecutions

Not stated

53 notices

109 warnings

  • North Coast Bioregion

16 prosecutions

Not stated

43 notices

25 warnings

  • South Coast Bioregion

16 prosecutions

High risk of illegal taking of abalone, cockles and marine fin fish

33 notices

55 warnings

  • Northern Inland Bioregion

One prosecution

Not stated

Two notices

One warning

  • Southern Inland Bioregion

35 prosecutions

High-risk illegal recreational marron fishing

20 notices

36 warnings

Source: AFMA 2008b, 2007a; Fletcher & Santoro 2008, 2007; Qld DPI&F 2008a, 2008b, 2008c, 2008d, 2008e, 2008f, 2008g, 2008h, 2008i, 2008j, 2008k, 2008l, 2008m,

Eighteen of the 22 prosecutions conducted in 2006–08 for offences committed in Commonwealth fisheries were successful. Fines were the most common sanction, ranging from $1,000 to $165,000. Larger fines were reserved for commercial fishers found to possess excess quota amounts of a specific species (in this case, gummy shark).

Prosecution and sentencing data collated by Putt and Anderson (2007) provides the best available indication of the sorts of sentences handed down for fisheries offences but it is still limited in illustrating the prevalence and nature of illegal fishing. The data, which came from Victoria, Queensland and the Northern Territory, and for Commonwealth fisheries, referred to prosecutions that took place between 1999 and 2004. Data from the Northern Territory included offences dating back to 1987. A total of 1,365 charges for fishing offences were recorded in Victoria between 1999 and 2004, associated with 357 offenders and 431 unique events. In the Northern Territory, there were a total of 60 charges against 29 offenders for 42 unique events (Putt & Anderson 2007).

Ninety-nine percent (n=2,412) of charges prosecuted in Queensland resulted in a fine and 66 percent of charges (n=40) in the Northern Territory in a fine or restitution order (Putt & Anderson 2007). The remaining charges in the Northern Territory were dealt with by a community corrections order or other order (4%), a custodial sentence (1%), or else they were withdrawn or dismissed (29%). While the fine amount handed down in Queensland could not be linked to the actual charge (and hence maximum penalty associated with the offence), the overall trend was that fines were relatively small (mean=$1,132). Around half of charges (51%) resulted in a fine of up to $500, a fifth (21%) with a fine between $501–1,000 and a quarter (24%) between $1,001–5,000. Only two percent of charges resulted in a fine greater than $10,000.2008n

Prosecuting foreign fishers

The highest category penalty available in the Fisheries Management Act 1991 (Cth) is a fine. This complies with s 73(3) of UNCLOS whereby coastal states cannot impose a custodial sentence on foreign nationals found fishing illegally in the former's EEZ. Penalties for operating a foreign boat for fishing in the AFZ are tiered between offences of strict liability and mens rea, and following an amendment to the Act in 2004, the latter incurs a maximum penalty of $825,000 for vessels greater than 24 metres in length and $550,000 for vessels less than 24 metres in length (Fisheries Management Act 1991 s 100A). A further amendment made available the provision for the Australian Government to recover and/or include costs associated with pursuit and apprehension of foreign fishing vessels greater than 24 metres in length in any bonding amount set down.

In the five year period between 2003–04 and 2007–08, over 1,700 foreign fishers have been charged under the Fisheries Management Act 1991, Torres Strait Fisheries Act 1984 or Criminal Code Act 1995 (AFMA 2008b, 2007a, 2006, 2005, 2004). During the most recent four years, 1,001 foreign fishers received convictions. Almost all these prosecutions involved Indonesian fishers apprehended for illegal fishing in the northern reaches of the AFZ. The largest fine handed down so far is $130,000 (in 2004–05) to the master of a vessel in possession of 100 kilograms of dried fish, 300 kilograms of fish on ice, 100 kilograms of dried shark fin and an unspecified quantity of fresh shark fin (AFMA 2005). Other fines ranged from $200 to $120,000.

Significantly fewer arrests have occurred in the sub-Antarctic region of the AFZ—nine between 1997 and 2008. Characteristically of many vessels involved in IUU fishing, five were registered with FOC countries but four flew flags of CCAMLR states. Their estimated catch value was, in most cases, in excess of $1m (Griggs & Lugten 2007). Ensuing prosecutions have proved more difficult in producing a finding of guilt, in part because of the circumstances of the arrest (for example, the Viarsa 1) but also because of the complex layering of responsible companies and so-called 'beneficial owners' behind these fishing operations (Griggs & Lugten 2007). Five of the nine arrests resulted in a guilty finding, a fine for the master or captain of between $30,000 and $136,000 and the forfeiture of vessel, catch and gear (Table 24).

Table 24: Penalties for foreign fishing
Name of vessel Date of arrest Estimated value of catch Outcome

Salvora

16 October 1997

$178,571

$50,000 fine each to captain and fishing master

Vessel, catch and gear forfeited (estimated value $1,077,478)

Aliza Glacial

17 October 1997

$250,000

Captain and Fishing Master failed to appear.

Bond worth $1.47m forfeited after vessel not returned. Vessel worth $8m

Big Star

21 February 1998

$1.5m

$100,000 fine, reduced on appeal to $24,000. Master Vessel, catch and gear forfeited. Bond worth $1.5m forfeited after vessel not returned

South Tomi

12 April 2001

$1.5–1.6m

$136,000 fine (Master)

Vessel, catch and gear forfeited

Lena

6 February 2002

$900,000

$50,000 fine (Captain); $25,000 (First Office and Officer)

Vessel, catch and gear forfeited

Volga

7 February 2002

$1.6m

Viarsa

27 August 2003

$1m

Failed to reach verdict (1st trial)

Finding of not guilty (2nd trial)

Awaiting civil trial

Maya 5

23 January 2004

$3m

$30,000 fine (Captain and Fishing Master); $1,000 fine (crew)

Vessel, catch and gear forfeited

Taruman

6 September 2005

Case still to be heard

Source: Adapted from Table 1, Griggs & Lutgen 2007

 

One contentious issue raised in the literature is Australia's practice of detaining foreign fishers, contrary to stipulations in the aforementioned s 73 of UNCLOS. For the most part, terms of custody occur in lieu of payment of a fine (ie a 'default imprisonment') but some fishers have received custodial sentences for breaches against the Criminal Code Act 1995 (Cth), primarily for resisting arrest. In 2006–07, for example, custodial sentences given to Indonesian fishers for 'criminal offences' ranged from 30 days to two years (AFMA 2007a).

Baird (2007) questions the legitimacy of both approaches, arguing that while they are technically sound under domestic laws, under international law they are moot. Australia, as a member of CCAMLR, has in the past applied to exclude IUU fishers apprehended for fishing in the CCAMLR zone from the provisions of article 73 of the UNCLOS (CCAMLR cited in Baird 2004) but overall accord was not reached.

Summary

With profitability comes strict, if labyrinthine, regulation and the Australian fishing industry is no exception. The regulation and management of Australia's fisheries is perhaps the most complex of any considered in this report and the list of penalties related to illegal fishing is extensive. Both recreational fishing and commercial ventures are monitored and powers extend to controlling domestic transgressions as well as those committed by foreign nationals visiting Australian fisheries.

The bulk of illegal fishing is perpetrated domestically, although how much is recreational and how much is commercial is not always so easy to discern. All fishers are obliged to respect laws regarding what they can catch, the amount they can catch and how they catch it. This involves attainment of licences and permits and a thorough understanding of rules on which species they can and cannot take, limits on size (and sometimes sex) of specimens fished and quota restrictions. While there must be strict observance of these laws, regardless of the nature of the venture, there is more scope for illegal recreational fishing to fall into the class of non-compliance by ignorance and for illegal commercial fishing to tend towards the habitual and deliberate. The scale of illegal domestic fishing, by recreational and commercial fishers alike, is reckoned to be 'small', primarily comprising relatively minor offences, although much more problematic in the commercial industry. Nonetheless, both categories of fishing tend to target endangered or protected (read prized) species and considerable management and enforcement efforts have been needed to curb relentless exploitation of certain species. More determined examples of illegal fishing are practised by foreign fishers fishing in Australian controlled waters. While profit is the object goal for these ventures, subsistence is an equally if not more important driver for fishers illegally fishing in Australia's northern waters, predicated by local economic conditions, poor employment prospects and barren fishing fields.

Putt and Anderson's (2007) study identified pockets of vulnerability for organised and/or persistent episodes of criminal activity. The study emphasised that the composition of the commercial industry, with a large number of smaller ventures (at greater risk of financial pressures) and the itinerant nature of much of the workforce, opened up opportunities for organised criminal activity. Similarly, as coveted fish stocks continue to decline, episodes of illegal fishing are expected to rise further.

Whether resources for fisheries officers are adequate enough to deal with illegal fishing is a topic yet to be thoroughly explored. Putt and Anderson (2007) suggest (based on stakeholder feedback) that improvements still need to be made with collaboration, information and intelligence-sharing, and the upgrading of skills to best deal with new pressures. A focus on the mechanisms of enforcement, for such a tightly controlled industry, might be the next research step in understanding how illegal fishing can be kept in check.