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Joint Standing Committee on Treaties - 16/03/2015 - Treaties tabled on 10 February 2015

BARTLETT, Ms Fiona, Director, Migratory Species Section, Protected Species and Communities Branch, Wildlife, Heritage and Marine Division, Department of Environment

MONTGOMERY, Ms Narelle, Assistant Director, Migratory Species Section, Protected Species and Communities Branch, Wildlife, Heritage and Marine Division, Department of Environment

OXLEY, Mr Stephen, First Assistant Secretary, Wildlife, Heritage and Marine Division, Department of Environment


Convention o n the Conservation of Migratory Species of Wild Animals

CHAIR: The committee will now take evidence on amendments to the Convention on the Conservation of Migratory Species of Wild Animals Appendices I and II. I welcome representatives from the Department of the Environment and the Department of Foreign Affairs and Trade. Although the committee does not require you to give evidence under oath, I should advise you that this hearing is a legal proceeding of the parliament and warrants the same respect as hearings of the House and the Senate. The giving of false or misleading evidence is a serious matter and may be regarded as contempt of parliament.

At the conclusion of your evidence would you please ensure that Hansard has had the opportunity of clarifying matters with you and if you nominate to take any questions on notice could you please ensure that your written response to questions reaches the committee secretariat within seven working days of your receipt of the transcript of today's proceedings. Do any of you have an opening statement?

Mr Oxley : If I may seek your guidance, in doing so, I have a prepared opening statement but I also have some material that goes specifically to the four questions that you asked for further advice on as chair of the committee. I wondered whether, rather than making an opening statement that essentially summarises the national interest analysis, it might be better for me to make some introductory remarks in relation to the four matters that you have raised.

CHAIR: Maybe just a really quick overview and then the four matters. We are not rushing through.

Mr Oxley : Firstly, thank you for the opportunity to provide an introductory statement in relation to the amendments to the Convention on the Conservation of Migratory Species of Wild Animals. The convention seeks to conserve terrestrial, avian and marine species that migrate across or outside national jurisdictional boundaries. Parties to the convention must protect migratory species listed on its appendices that live within or pass through their jurisdictions. As outlined in the national interest analysis, the convention includes two appendices. Appendix 1 lists migratory species which are in danger of extinction throughout all or a significant proportion of their range and, once a species is listed on appendix 1, parties are obliged to endeavour to conserve and restore habitats, remove barriers to migration, control factors that are endangering the species and prohibit the taking of the species.

Appendix 2 lists migratory species which are not endangered but have an unfavourable conservation status and require international agreements for their management, as well as species with a conservation status that would benefit from international cooperation. Again, once species are listed on appendix 2, parties are obliged to endeavour to conclude agreements where these would benefit the species. A good example of such an agreement is the memorandum of understanding on sharks under the convention on migratory species.

Set against those treaty obligations, the Environment Protection and Biodiversity Conservation Act, which I will hereafter referred to as the EPBC Act, imposes a domestic requirement that species listed in either appendix must be added to the list of migratory species under the act. The act also makes it an offence to kill, injure, take or move listed migratory species in Commonwealth waters and the act does not distinguish between species listed on appendix 1 and appendix 2 of the convention on migratory species. Accordingly, we have domestic measures which go beyond that required by the convention for appendix 2 listed species in that, once a species is included in appendix 2, the obligation under the convention is that range states endeavour to enter into agreements that are supportive of conservation of the species; whereas, in contrast, listing on appendix 2 enlivens the prohibition under the EPBC Act of killing, injuring, taking or moving the species. So we have obligations which extend under our national legislation beyond our treaty obligations.

On 9 November, the 11th conference of parties to the convention agreed to add 31 species to the appendices. This included the addition to appendices 1 and 2 of 15 species that occur in the Australian jurisdiction, and these are set out in the national interest analysis. Before breaching an Australian government—

CHAIR: We do not need to go through the whole situation. I thought we might have been able to do a truncated version.

Mr Oxley : Sure. Perhaps, then, I will turn to the four matters that were particularly raised by the committee, through you, Chair, and make a couple of introductory remarks there. The first matter on which we were asked to provide comment was the reason for the Australian government's change in approach to listings in the appendices of the convention on migratory species. Here I want to go back to 2008 and the inclusion of the mako shark in appendix 2 of the convention, which highlighted the unintended consequences as I have already outlined of the EPBC Act in terms of how it addresses appendix 2 listed species. A reservation to these listings was not considered within the 90-day time frame and, consequently, the only option left open to the government at that time was to amend the EPBC Act to exempt recreational fishing of these species from the offence provisions attached to the migratory species list. That process took almost two years to achieve, during which time anyone who inadvertently caught one of those species was liable to prosecution. As such, when it became clear that a similar situation may be arising in relation to the species added to CMS appendix 2 last year, a reservation was considered to be a legitimate tool to ensure that Australia's domestic management arrangements could continue to apply. Without the reservation, recreational fishers who accidentally caught any of these five shark species we are talking about—three thresher shark species and two hammerhead shark species—even when fishing in accordance with their permits and consistent with state or Commonwealth law could be fined up to $170,000 and face two years in jail. A number of other countries have submitted reservations to CMS listings in the past. For example, Cuba has entered a reservation in relation to a species of turtle included on appendices 1 and 2; the European Union has a reservation in relation to the inclusion of the basking shark on appendix 1; and France has a reservation under appendix 1 for the listing of green turtles.

The second matter that the committee sought some comment on was whether the reservation would relieve Australia of the obligation to promote, cooperate in and support research relating to migratory species. In short, the answer is no. Entering a reservation to the five species does not negate Australia's support for migratory species either within our waters or internationally. The Australian government intends to fully support work to facilitate information exchange and cooperative research work on these species internationally. All the recent shark and ray species additions to the convention on migratory species will be considered for inclusion under the CMS memorandum of understanding on the conservation of migratory sharks. That consideration will occur at the meeting under that MOU later this year and Australia will be actively supporting the inclusion of these five shark species under that memorandum of understanding. Domestically, the Department of the Environment is actively involved in a range of shark conservation initiatives, principally focused on the eight threatened shark species listed under the EPBC Act. We are currently working on two white shark projects, one sawfish and river shark project and one project on an at-risk shark and ray species in south-eastern Australian waters.

The third point on which the committee sought some advice was whether Australia will report to the CMS conference of parties on the measures undertaken to protect the species to which the reservations apply. There are two aspects to this. Firstly, all parties to the CMS are obliged to provide a report on relevant species every three years. These reports focus only on appendix 1 species and, as such, even if Australia had not taken out the reservation against the five shark species, we would not be reporting on actions undertaken in relation to these species, but there are reporting obligations under the sharks MOU which arise every three years, and we are required to report on the actions and activities we have undertaken under that memorandum of understanding. So we are working on the assumption that those five species will be added to the sharks MOU; then there will be a vehicle for ongoing reporting by Australia.

The last point—and sorry it has taken a little while to get here—is whether the species are subject to equivalent protection in coastal waters to that afforded in Commonwealth waters. The answer there, again, is yes. Recreationally, both hammerhead and thresher sharks are subject to strict bag limits in state and territory waters and in Commonwealth waters. In New South Wales, for example, hammerhead sharks are listed as protected species and are, therefore, no-take for both commercial and recreational fishers. Other shark species in New South Wales have a catch and possession limit of one shark per angler per trip. This is the same in Victorian waters. In Queensland, there is also a limit of one shark with additional size restrictions. In Tasmania, recreational fishers are limited to five sharks per boat, with a possession limit of two. Hammerhead sharks are included in appendix 2 of the sister convention to the CMS, the Convention on International Trade in Endangered Species of Wild Fauna and Flora, or CITES, which regulates trade in the species. A non-detriment finding is in place for hammerhead sharks caught in Australian waters. That non-detriment finding is a requirement under the CMS, which allows trade in species listed on appendix 2.

It found that the current level of take within Australian waters is not detrimental to the survival of the species, of hammerhead sharks. I should also note that hammerhead sharks are currently being assessed by the Threatened Species Scientific Committee for inclusion under the EPBC Act as a threatened species and we are expecting that the Threatened Species Scientific Committee will consider its recommendations to the minister on that proposed listing in September. That is it, Chair.

CHAIR: Thank you so much. Just to put it all in plain English, and so that we are on the same page, so we are seeking five reservations for species? What are the five reservations?

Mr Oxley : The five reservations relate to three species of thresher sharks and the bigeye, common and pelagic, and two species of hammerhead sharks, scalloped and great.

CHAIR: And the reason we are seeking these reservations is a recreational fisherman might accidentally catch one of these sharks and if we do not have these reservations in place, potentially, we would be liable for prosecution?

Mr Oxley : That is the end result, if they were to be listed a recreational fisher was to have that interaction. But the other significant dimension here is that the domestic legislative requirements go further than our international treaty obligations.

CHAIR: So our domestic law is actually stronger than the international law in this case—

Mr Oxley : Correct.

CHAIR: and it leaves open the old mate who is out fishing on the weekend and accidentally catches one of these, and he could prosecuted?

Mr Oxley : That is correct.

Senator WHISH-WILSON: It does not make sense. If our domestic laws are stronger, why not just sign up to it?

Mr Oxley : The domestic laws are stronger and they go beyond the requirements under the convention on migratory species and that requirement is for appendix 2 listed species; essentially that state parties, the range states for the species, work cooperatively towards the conservation taking actions that are beneficial to those species. That is able to be achieved, and the best example of that in relation to sharks is the memorandum of understanding. The position that the government has taken, on the advice of the department, is that the domestic legislative obligations do go beyond our treaty obligations with unintended consequences for, in this case, particularly the recreational fishing sector. This is a difficulty that the government wishes to address through these reservations. I should also make the observation that back in 2008 or nine, whichever year it was, as part of the Hawke review of the Environment Protection and Biodiversity Conservation Act, that review recommended that this 'anomaly', for want of a better word, should be addressed through amendments to the EPBC Act and that proposition was accepted by the government of the day in its response to the Hawke review.

CHAIR: Similar reservations, but not for the same species, have been undertaken by the EU, Cuba, France—are there other countries that have similar reservations?

Mr Oxley : Yes, there are other countries and—

CHAIR: Do you know them?

Mr Oxley : Yes, I can give you that information now, if you like. The ones that I am directly aware of are Norway, which has reservations in relation to all species of cetaceans and sharks—though my understanding is that the reservation with respect to appendix 2 sharks and cetaceans was removed at COP 10. Bolivia has a reservation in relation to the listing of an American camelid species under appendix 1, Vicugna vicugna—I do not know what it looks like. Denmark has reservations in place in relation to species of whale in terms of them being taken in the Faroe Islands or Greenland. There is available, on the CMS website, a list of all reservations and we could arrange for that to be provided to the committee if that would be helpful.

CHAIR: Excellent.

Mr KELVIN THOMSON: First is that the national interests analysis says, 'The five species subject to the reservation are currently subject to suitable domestic management measures consistent with conservation efforts required per species listed in appendix 2.' So what monitoring processes are in place to ensure that those domestic management measures are being effectively applied and complied with?

Mr Oxley : The are two dimensions to this. There is the commercial fisheries dimension in relation to commercial fisheries that have a trade component, and that is something like 120 fisheries, Commonwealth, state and territory. Those fisheries go through an assessment process on a cyclical basis, generally in the range of three to five years, depending of the level of risk with those fisheries. That assessment looks at the sustainability of the fishery in terms of target species, by-product species and then the wider environmental impacts on migratory and threatened species. So, we have review cycle which is a public process. The fisheries management agency provides a public submission to the department and it goes out for public comment. The department does an assessment of that and then, on the basis of the assessment, recommendations are made to either the minister or the minister's delegate, as to whether the fishery should be approved under the EPBC Act. That approval for state fisheries covers part 13, so that is all the elements in relation to species interactions. Part 13A is in relation to the trade in domestic Australian wildlife inclusive of marine species. For Commonwealth fisheries on top of that there is also a strategic assessment under part 10 of the EPBC Act. It is through that process that the fisheries management agencies bring forward an annual reporting cycle on these things.

In relation to recreational fisheries, they are managed by the states and territories. The states and territories, as I have already outlined, have significant controls or limitations in place in relation to the take of many of the shark species within their waters and also into Commonwealth waters because they regulate recreational fishing across all jurisdictions. I cannot give you specific information in relation to the monitoring programs that states and territories have in place, but I would be happy to seek some further information and bring that back to the committee.

Mr KELVIN THOMSON: Thank you. The second one is that several NGOs—the Humane Society International, the Australian Marine Conservation Society and TRAFFIC—have said that they do not support the reservations in the case of the five species. You have commented on this issue already, but they have said that they preferred the approach that was taken in 2009 within an amendment to the EPBC Act so that the species are listed as migratory but get an exemption from the strict liability of offensive killing, taking, or injuring a member of the listed species in a Commonwealth area. I think it ought to be put on the public record that there are organisations that think that amending the act, which was the course taken previously, is superior to the reservation.

The third thing is that, in relation to the National Interest Analysis, the attachment on consultation says that the department undertook extensive consultation. In the submissions that they have given to us the Humane Society International, the Australian Marine Conservation Society and TRAFFIC queried whether that stakeholder consultation was extensive, and they said that there was only the one stakeholder meeting arranged. My question is: was there follow-up of the initial stakeholder meeting or just that meeting?

Ms Montgomery : I can answer that for you, if you like. Our consultation started in June 2014 when all of the nominations were posted on the CMS website. In that first range of consultations we had a very short time frame because the scientific council of the CMS, or the convention, was looking at those nomination documents about three weeks after they had been posted online. So initially that consultation with all of our stakeholders asked for any sort of red flag issues that they were aware of, so anything that we needed to raise with respect to that at the Scientific Council Meeting.

Following the Scientific Council Meeting, when we were aware of which proposals would be going forward, we contacted all of our stakeholders again. We held a teleconference with all of our non-government conservation organisations as well as the commercial and recreational fishing stakeholders and had meetings with other Commonwealth departments to go through the proposals in more detail. Following the teleconference with non-government conservation organisations, we offered to arrange another one a number of weeks later, but all of the conservation groups she said that they were interested in that said that they could not make it within that time frame because of competing priorities with other convention work that they were doing, and that they would submit their comments in writing, which they did. So we were able to take their concerns on board.

Senator WHISH-WILSON: In relation to that, on page 82, which was the attachment on consultation to the national interest analysis category 1, in point 9 you say:

Broad support was received from a number of environmental NGOs with regard to the proposed amendments.

Could you list which environmental NGOs gave you broad support for your amendments?

Ms Montgomery : Yes. We got broad support from TRAFFIC, Humane Society International and IFAW or the International Fund for Animal Welfare. They are the ones that provided specific comments.

Senator WHISH-WILSON: I am not sure what you meant by broad support; obviously—pardon the pun—it is a broad statement. We have letters here from Humane Society International and from TRAFFIC. From what is in those letters, I would not say that there is anything near broad support for the amendment.

Ms Montgomery : It was broad support for including the species on the appendices. It was not about the reservation.

Senator WHISH-WILSON: It was not about the reservation?

Ms Montgomery : No, it was about whether or not the species should be included on the appendices to the conventional.

Mr Oxley : I think what might be helpful here is to just provide a little more clarity around the process relating to the taking of the reservation. I think what—

Senator WHISH-WILSON: I might do some reading on that later, if that is okay, Mr Oxley. Now that you have clarified that, that is fine. I thought it included reservation. The Humane Society states in their letter that they consider the lodging of these reservations demonstrates Australia's lack of willingness to engage in international conservation efforts and that it will undermine our leadership in this area. I mean, how can we go back to other countries and criticise them when we have clearly carved out some species for our recreational fishermen here? What do you say to that in terms of the good work that we have done in other areas?

Mr Oxley : My response to that is that I do not believe that Australia's commitment to the conservation of migratory species is in any way diminished by the entering of the reservations. In fact, in the margins of the conference of parties in talking to many of the delegations, my understanding is that we did talk about our concerns in relation to the proposed listing on appendix 2 of these species and those parties to the convention well understood our rationale including, in relation to thresher sharks, that there was no evidence available that indicated that thresher sharks had a conservation status that was at risk in Australian waters.

Senator WHISH-WILSON: On the flip side of that, for the other countries that have had their own reservations, are you confident in their domestic management of those species that they have wanted carved out of this treaty?

Mr Oxley : I am not in a position to express confidence or otherwise in relation to the reservations that have been taken by other countries in relation to species which—

Senator WHISH-WILSON: On that basis, Mr Oxley, how could—

Mr WHITELEY: We might let him finish. Let's get some context.

Senator WHISH-WILSON: He has answered the question; that is all I wanted to know.

Mr WHITELEY: I would like to know the context, if that is all right.

Mr Oxley : In relation to species, some of them are not even within our range. In relation to the answer to the earlier question—

Senator WHISH-WILSON: No, I want to pull you up. Before you get back to that other answer, I would like you to answer this—it is important. We do not know why they want species carved out. We do not know about their domestic management. My point is about signing an international treaty and having obligations. They would probably have a very similar view to you—your domestic management and what you have said here today. It is not their position to comment on that; they do not understand that. Do we not sign these treaties and obligations so that we have an international shared responsibility? Is that not the point? You cannot comment on their domestic management; they will not comment on yours. Is the Humane Society saying that this undermines the legitimacy of us commenting on issues that they have in their fisheries?

Mr Oxley : The treaty has provisions in it which allow countries to take out reservations. In this circumstance, Australia has taken out a reservation essentially for two reasons. One reason is that, in relation to thresher sharks particularly—different to hammerhead sharks—there is no evidence that the species are at risk within Australia's waters. Although there is evidence internationally that the species are at risk, we are managing them well domestically.

Senator WHISH-WILSON: Are they not migratory? Is that not the point of having them in this treaty? They migrate between Australian waters and other waters?

Mr Oxley : They migrate. Where they migrate from and to will vary according to species. There may be discrete subpopulations, depending on which species one is talking about. The key point is that, in relation to thresher sharks, the evidence is that they are not endangered or at risk within Australian waters. The second rationale for the reservation was that the domestic obligations that Australia has in place under the EPBC Act exceed our obligations under the convention. While we have therefore taken the path of a reservation here, we are nonetheless very actively engaged in the CMS memorandum on sharks and are working to have these five species included under that MOU, which will be for the conservation of those species. So while a reservation has been taken out because of the potential impact from a recreational take perspective, Australia remains committed to the conservation of the species under the sharks MOU.

Senator WHISH-WILSON: I still do not understand. I am prepared to accept what you said earlier—and what you just said then about our standards of fisheries management being very high and exceeding the treaty. But I do not understand why, on that basis, you would not sign the treaty. You still have not convinced me that the two are not mutually beneficial. If our standards are higher than what has been put in this treaty, why not sign the treaty?

Mr Oxley : Our legislation imposes obligations, or puts in place restrictions, that go beyond what is contemplated under the convention on migratory species. One can argue that that is a good thing, as I understand you are doing, Senator, and that Australia should simply accept that as a proposition. But the counterargument to that is that, in these particular circumstances, because of in particular the recreational fishing interest in these species and the fact that the species are managed carefully through the use of bag limits and what-have-you under state legislation, the protections in place—

Senator WHISH-WILSON: I understand. We have been through this a couple of times, Mr Oxley. I do not dispute it. But why not leave the bag limits and stuff as they are and still sign it? I do not understand why we would not sign it. If every country said, 'We are going to carve out these species because we manage them better than the obligations under this treaty', we would not have a treaty.

Mr WHITELEY: It makes no sense, Peter.

Senator WHISH-WILSON: If every country is going to carve out species because they are saying, 'We manage these things better than the obligations under this treaty', what is the point of having one?

Mr WHITELEY: It is a minimal grace—

Mr Oxley : Under the treaty we have two appendices. The first appendix relates to species that are endangered and that everybody agrees need to be protected now.

Senator WHISH-WILSON: That is right, yes. Except—

Mr Oxley : Then there is appendix 2, where there is some concern for the conservation status of species and that concern has led countries collectively to take a view, through listing in appendix 2, that the species would benefit from cooperative action between signatory parties to the convention.

Senator WHISH-WILSON: In what way benefit?

Mr Oxley : It can be through exchange of information and research. Those would be two examples.

Senator WHISH-WILSON: The proviso being that it is necessary to do that because the species is at risk? How would you describe it if it is not?

CHAIR: What is the actual definition in the treaty for appendix 2?

Mr Oxley : It has an 'unfavourable conservation status'.

Senator WHISH-WILSON: It is important to get that on record. So that has been decided amongst the treaty partners?

Mr Oxley : Yes.

Senator WHISH-WILSON: But we beg to differ on this particular thresher shark?

Mr Oxley : Then, for example, in relation to migratory species of sharks, there is a memorandum of understanding under the convention, and parties are cooperating actively under that MOU in a range of areas of activity, which I cannot articulate now but would be happy to provide to the committee on notice should it wish to receive that information.

CHAIR: I do not know if we need it. Brett?

Mr WHITELEY: My simple question is: so the lodgement—or whatever the word is—of a reservation such as we are speaking about today is in no way in breach of the convention?

Mr Oxley : No. It is consistent with the convention.

Mr WHITELEY: Secondly, just to restate: the department is satisfied that the domestic management measures that are currently in place are sufficient to protect these species?

Mr Oxley : On the evidence we have in front of us, yes.

Mr WHITELEY: Is there any historical evidence to suggest that our domestic management measures have not been sufficient?

Mr Oxley : The history of fisheries management in Australia is one of continuous improvement, including—

Senator Whish-Wilson interjecting

Mr WHITELEY: I am asking whether or not domestic—

Senator WHISH-WILSON: The question is: how far do you want him to go back?

Mr WHITELEY: I am interested to learn.

Mr Oxley : Our domestic history is one of continuous improvement in the management of fisheries, and that has been driven directly by fisheries management agencies, but it has also been driven in large part by the creation of the Environment Protection and Biodiversity Conservation Act, which has in it significant provisions which have, over time, enabled the improvement of the management of Australia's fisheries in relation to interactions with protected species, as migratory and threatened species are both protected as matters of national environmental significance. Through the cycle of review and improvement of fisheries management, we have seen significant reductions in the take of threatened and migratory species, and in many instances it has been driven through innovation by the fishing industry itself.

Ms PARKE: I note the submissions from the AMCS and TRAFFIC. I apologise if I am repeating things that have been raised before, given that I have been out of the room for a while. They say that they believe these reservations will undermine conservation efforts for these species and they say Australia has tarnished its reputation as a leader in the conservation of sharks with this action and has in fact brought it into the realm of parties to international conventions that are parties of convenience, which take out reservations when the measures of the convention apply to them—something Australia in the past was critical of others for doing. I assume you do not agree with that.

Mr Oxley : No, and we have covered that territory already, but, in summary, the reason for the reservation is that the domestic obligations imposed under the EPBC Act exceed the obligations of appendix 2 under the CMS. The reality is that, even though Australia has taken out the reservation, we will continue to work for the conservation of these species under the memorandum of understanding on sharks under the CMS itself. Australia was an initiator and significant driver of that MOU and continues to be actively engaged, so we are confident that our actions under the CMS, notwithstanding the reservation having been taken, are and will continue to be good evidence of our commitment to the conservation of these species.

Ms PARKE: Looking at the submission from Humane Society International, they refer to a meeting in Quito, where all 21 shark and ray proposals considered were adopted by consensus, and no objections were lodged, despite the Australian government being an active participant at the meeting. After the meeting, however, HSI became aware of ongoing concern amongst the Australian recreational fishing community regarding the thresher and hammerhead shark listings. Is it the case that during the process itself the Australian government lodged no objection but it was only following representations from the fishing industry, or recreational fishers—

Mr Oxley : That would not be a reasonable characterisation of how Australia has engaged in that process, and nor is it reasonable for anybody to suggest that ongoing concern in the recreational fishing industry became apparent after the convention of parties. That concern was strongly apparent from the moment that the proposals first emerged for the species to be included—on appendix 2. During the conference of parties itself, Australia had quite extensive dialog with a number of countries, including the Europeans, who were the proposers of the listing of the thresher shark. We made it quite clear in all of our discussions that we had concerns at two levels in relation to the thresher sharks in particular, which were that there was no evidence of their being at risk in Australian waters, and, secondly, there is the matter of our domestic legislative obligations being in excess of the obligations of the treaty. We made a statement on the floor of the convention about our concerns in relation to thresher sharks, but it was not expressed as 'if this is listed we will be seeking to take out a reservation'. The consideration of how to deal with the listing occurred in the weeks after the convention took the decision.

Ms PARKE: Can I ask you for clarification about why you would enter a reservation because our domestic legislation is in excess of the treaty obligations? Wouldn't it be unnecessary to do anything further if we are already meeting our obligations?

Mr Oxley : It was judged necessary because the effect of the inclusion of these species under the EPBC Act would be that it is simply against the law to kill, injure, take or move any of these species, irrespective of their conservation status. There is a domestic legal requirement under the EPBC Act that goes beyond what the convention itself seeks to do for appendix 2 listed species. The effect of those laws would be that, in spite of there being no evidence that thresher sharks populations in Australian waters are at risk, it would leave recreational fishers directly legally liable—should they interact with those species, including by targeting them—in circumstances where for thresher sharks there are significant bag limits in place around all the jurisdictions of Australia, and where there are actual bans on the taking of hammerhead sharks recreationally under state domestic laws covering those species. In relation to commercial fisheries, they are assessed and have management plans under the EPBC Act. In signing off, the minister or the minister's delegate must be satisfied that the management arrangements in place ensure that all reasonable steps are taken to avoid interactions with species that are protected under the act.

Ms PARKE: The Treaties Committee had an issue, going back, I do not know exactly now whether it was 2008 or 2009, when the Australian government sought to remove, or did remove, sawfish from an appendix on the basis of a submission by one commercial operator who was a member of the Australian delegation at the CITES conference. That was a matter of deep concern to this committee and a matter of recommendations from this committee about how future delegations and stakeholder consultation would be progressed. So I guess I am asking you, are you aware of the former Treaties Committee's recommendation and has the process improved?

Mr Oxley : So we are talking here now about the Convention on International Trade in Endangered Species and, yes, a position was taken back whenever it was now, I cannot remember the year, to oppose the inclusion of species of sawfish on appendix 1 and to have it on appendix 2, which allows trade, subject to a non-detriment finding. I also understand that subsequent to that the species has been included on appendix 1. We have been in a continuous learning process in terms of how we get the sequencing of our treaty obligations right. We have a problem with the Convention on the Conservation of Migratory Species in terms of the ability of the Joint Standing Committee on Treaties to scrutinise actions under this treaty. The conferences of the parties always seem to be held in November of a year and then when these species are included on the appendices they come into force 90 days afterwards, so we seem to be continuously jammed in terms of being able to get advice in front of the Joint Standing Committee on Treaties in a way that enables JSCOT to have a proper consideration of the implications of Australia fulfilling its treaty obligations. But in this particular case, Minister Hunt sought to make sure that the committee is very well appraised of how things are developing and in August last year he wrote to the committee flagging that the species were likely to be discussed and recognising that there would be some timing challenges in terms of the treaty processes of the parliament. Then, in November last year, he wrote again to the committee giving an indication of the government's intended course of action in relation to the taking of a reservation. So in an environment where there is little flexibility for us, because of the timing and sequence of events, the minister certainly sought to make sure that the committee has been fully appraised of developments.

CHAIR: Thank you so much for giving evidence today. If we have any further questions, we will be in contact at a later date.