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Environment and Communications References Committee
Australia's faunal extinction crisis

STEPHENS, Professor Tim, Private capacity


CHAIR: Welcome. I understand that information on parliamentary privilege and the protection of witnesses and evidence has been provided to you. Do you have anything to add about the capacity in which you appear?

Prof. Stephens : I'm a professor of international law at the University of Sydney Law School. I'm appearing on my own behalf and drawing on my expertise and my role in my academic capacity.

CHAIR: I now invite you to make a short opening statement. At the conclusion of your remarks the committee will ask you some questions.

Prof. Stephens : Thank you all for the opportunity to appear before this inquiry into Australia's faunal extinction crisis. I teach and research at the University of Sydney Law School. One area of my research interest concerns the conservation of marine species. I made a written submission to this committee's inquiry in the 45th parliament addressing shortcomings in Australia's legislative and institutional framework for protecting species in Commonwealth marine areas. In this opening statement I'd like to highlight several aspects of that submission.

As the committee's interim report noted, Australia has a 'damning track record of faunal extinction' and Australia's 'decreasing biodiversity is stark.' These trends are well documented in relation to Australia's terrestrial species, but much less attention has been paid to the declining health of many of Australia's marine ecosystems. Indeed, relatively little is known about Australia's oceans compared to its terrestrial environment. There has been a significant loss of biodiversity from Australia's marine environment, and this trend continues to worsen. I draw the committee's attention to the 2016 state of the environment report, which noted:

Australia's marine environment is the world's third largest marine jurisdiction …

and is home to a wide array of marine species, many of which are endemic. The report found that the outlook for Australia's marine environment is clearly mixed, given a number of pressures including climate change and ocean acidification. Moreover, the report noted efforts by government to respond to threats to marine species:

… continue to be poorly coordinated across sectors and jurisdictions.

Before I highlight a few aspects of my submission, I note at the outset that we are fortunate to have quite a sophisticated Commonwealth marine bioregional planning process. It's still not complete; nonetheless, this process has helped in many respects to address a number of conservation challenges in Australia's marine environment and has greatly improved our understanding of the biophysical characteristics and marine biodiversity of Australia's enormous maritime estate.

The first matter I'd like to highlight in these oral remarks is the gaps and limitations in the listing of threatened marine species and marine ecological communities. I'm sure you've become increasingly familiar with the EPBC Act, which is quite a mammoth piece of legislation. My wife is a tax lawyer, and I sometimes think that she has an easier job than people working in the environmental space, given the sheer complexity of the legislation. As you know, there's a significant degree of overlap between threatened species, marine species and migratory species listed under the act, and this can inevitably lead to confusion as to the conservation status of individual species. The EPBC Act extends protections over a number of marine species in Commonwealth marine areas under section 248, where it is considered necessary to ensure the long-term conservation of the species. It establishes a permit system and offences in relation to the taking of species such as sea snakes, seals, crocodiles, dugongs, marine turtles, seahorses, sea dragons, seabirds and so on. There's also specific protection for cetaceans in Australia's whale sanctuary. Marine species may also be listed as threatened species under the act. I would note, however, that it is likely that these lists provide very incomplete marine species coverage. They're unlikely to be representative of the various marine species at risk in Australia.

The 2016 state of environment report noted that no marine species have been removed from the threatened species list since 2011, while eight species have been added. Since 2011, two sea snakes, two seabirds, two sharks, one swordfish and one other fish have been listed, and two fishes have been reclassified as critically endangered. In addition, the giant kelp forests across south-eastern Australia were the first marine community to be listed as a threatened ecological community. A second community was added in 2015, the Posidonia australis seagrass meadows of the Manning-Hawkesbury ecoregion. I note that there have been a number of unsuccessful efforts to add marine species to the threatened species list, with the Threatened Species Scientific Committee finding several species ineligible for listing despite being in significant decline. Species refused listing include the flesh-footed shearwater, the endeavour dogfish, the Patagonian toothfish and the giant Australian cuttlefish. I think a persistent weakness of the threatened species listing process in Australia is a significant delay often encountered between nomination and listing—for example, while the IUCN considers the Australian sea lion to be endangered, the Threatened Species Scientific Committee has not yet concluded its assessment advice on whether the status of this species should be changed from vulnerable. I think there are significant opportunities for improving the representativeness and the responsiveness of marine species listing under the EPBC Act.

The second matter I wish to highlight is inadequacies in the recognition of key threatening processes and the development of threat abatement plans in response. The EPBC Act requires the environment minister to establish a list of threatening processes that are key threatening processes. More than 20 key threatening processes are now listed, a number of which are specific to marine environments—for example, incidental catches of sea turtles and of seabirds. Climate change is one of the 20 key threatening processes, but there's no express recognition of a related phenomenon, that of ocean acidification. This, in my view, is a glaring omission requiring urgent attention. Moreover, not all key threatening processes have been matched with approved threat abatement plans to guide and coordinate responses.

Under the act, the environment minister must adopt a threat abatement plan if she believes that having and implementing such a plan is a feasible, effective and efficient way to abate the process. The Threatened Species Scientific Committee provides advice on this decision. While there are some threat abatement plans for certain threatening processes affecting marine species—for instance, in respect of marine debris—more serious threatening processes such as climate change and ocean acidification have not been the subject of abatement plans and instead have been left to other responses. The Threatened Species Scientific Committee's justification for not recommending a threat abatement plan for climate change, which it issued in 2001, is that it is a global problem requiring a global response. In my view, this reasoning is dated, not convincing and not in line with the conclusion of Chief Justice Brian Preston in the recent Rocky Hill coalmine decision, that a rapid and deep decrease in greenhouse emissions is urgently needed in Australia and globally. In my view, the Threatened Species Scientific Committee and the minister should revisit this issue, along with the related threat of ocean acidification, and devise advice on threatening processes and accompanying threat abatement plans consistent with the latest scientific advice from the Intergovernmental Panel on Climate Change.

In conclusion, I have addressed only several of a number of shortcomings in the current regime for marine species protection in Australia. Nonetheless, these indicate that the current legislative framework and institutional arrangements are not entirely fit for purpose for addressing pressing threats to Australia's marine biodiversity in the 21st century. Australia's Oceans Policy, adopted more than 20 years ago, in 1998, called for integrated and ecosystem based oceans planning and development to maintain ecological processes, preserve marine biological diversity and maintain viable populations of all native marine animals. The marine bioregional planning process has significantly enhanced our knowledge of Australia's marine regions and the pressures they face and identified priorities for management. However, in contrast, the current approach for listing threatened species and ecological communities, and accompanying processes for the developing recovery plans, key threatening processes and threat abatement plans, is not keeping pace with rapid environmental change.

CHAIR: Thanks very much, Professor Stephens. What I hear you say is that the EPBC Act has limitations but that, even where it does allow for things to be occurring, such as determining key threatening processes and then developing their abatement plans, the powers that are within that in the legislation aren't being used.

Prof. Stephens : I think that's a correct assessment. I'd agree with that. I think that there are more powers under the act that could be enlivened and used in a proactive way. You may have taken evidence on this from other witnesses, but the approach to threatened species protection is often quite selective because of the way the nomination process works; it's a public nomination process and it's not necessarily systematic or comprehensive.

In the marine space, we're very fortunate in that we have these marine bioregional plans, which I think have added significantly and helpfully to our knowledge of the marine environment and what we need to do to protect it. But certainly, when it comes to threatened species, definitely more could be done.

CHAIR: In evidence that you've given, you spoke of things like the delay between the nomination and the listing, and you gave the example of the sea lion. How long was the delay between the nomination and the listing in the case of the sea lion?

Prof. Stephens : I think that's been under consideration for a number of years; I don't know precisely the number of years.

CHAIR: So we still don't have a listing?

Prof. Stephens : Correct.

CHAIR: Where threat abatement plans aren't being prepared, why do you think that's the case?

Prof. Stephens : In the Australian context, it could be said that there has been some politicisation or perhaps too much discretion in the process. It really is up to the minister to make a decision as to whether or not to adopt a threat abatement plan. I think there's a strong argument for making the system more objective and less discretionary and ensuring that good advice is promptly given and acted upon.

CHAIR: So removing that discretion. In your submission, you talked about the pressures of commercial fishing impacting upon whether a species was listed and then what happened. Could you elaborate some more on some of those pressures and, hence, the politicisation of the process?

Prof. Stephens : Yes. When it comes to commercial fishing, it's a very complex system under the act. There are multiple points of assessment, and this occurs both under the EPBC Act and under the Fisheries Management Act, so AFMA's intimately engaged in this process. The Hawke review looked into this issue back in 2009 in its report and identified various ways in which the process could be improved. I guess the key conclusion from the Hawke review on this is that the EPBC Act should take priority in the process and shouldn't play second fiddle to the Fisheries Management Act, and I think that's widely accepted.

In my submission I do identify some areas where—even as to species which are of significant concern, such as southern bluefin tuna, for instance—there has been pressure, I think, brought to bear to ensure that that species continues to be fished at potentially unsustainable levels, despite clear scientific evidence that it's in trouble. The southern bluefin tuna is something of a special case in that it is a highly migratory species that's managed under an international convention, the Convention for the Conservation of Southern Bluefin Tuna. So Australia can't simply manage this species by itself. It has to cooperate with a number of other countries and jurisdictions. But this is one of a number of cases where there could be improved protection.

CHAIR: And yet existing law allows for those exemptions to occur.

Prof. Stephens : Correct.

CHAIR: In fact, you say in your submission that attempts to challenge the ministerial decisions in relation to the species in the courts have been unsuccessful. Can you expand on why that has been the case?

Prof. Stephens : I don't have the decisions right in front of me, I'm afraid, so I'm searching my memory to work out the reasons for that, but there has been no error found in the various decisions of the minister relating to those decisions under the Fisheries Management Act or the EPBC Act.

CHAIR: So there are loopholes in the act that allow those decisions to be made?

Prof. Stephens : Correct.

Senator Marielle SMITH: I just want to follow up on the southern bluefin tuna issue. I was under the understanding that there's some evidence to show that stocks of that tuna are rebuilding and growing again. Do you have a view on that or is there any evidence you can provide?

Prof. Stephens : I couldn't provide an informed view on that, no. So far as I'm aware, the IUCN still considers southern bluefin tuna to be in a pretty bad state. It may not be in as parlous a state as it was several years ago when, you may recall, Australia and New Zealand commenced proceedings against Japan in relation to Japan's experimental fishing program for southern bluefin tuna. It may have rebounded since then, but I simply can't help you. I'm sure I could provide a supplementary submission, if that would assist.

CHAIR: You used another example of ad hoc exemptions from assessment through to approval—of the environment minister exempting a controlled action based on a national interest test when deciding to set baited drum lines to cull sharks in Western Australia. Are you able to expand any more on that or to provide other examples where exemptions are undermining conservation efforts?

Prof. Stephens : That's the only example I'm aware of and that was an example where there was, I think, acute pressure to address a perceived risk to human safety. That exemption was pursued on that basis, but I'm not aware of other examples where that has occurred.

CHAIR: How much impact do these exemptions and loopholes have? What are the threats that our marine species are under and then how significant are these exemptions in exacerbating those threats?

Prof. Stephens : They're probably relatively less concerning than the broader changes to marine ecosystems as a result of very large pressures. When one looks at climate change and ocean acidification, which I highlighted in my opening statement, these are very large systemic pressures that are radically transforming Australia's marine environment and would probably dwarf in significance the relatively small actions taken, like seeking to deal with the threat of shark populations in some areas. I would suggest that those broader issues—while they have gained some significant acknowledgement in the bioregional planning system—are still not adequately internalised in the way we identify a threatened species and respond to the need and the obligation to protect them.

CHAIR: On those bigger threats—climate change and ocean acidification—how should our national environment laws be responding to those with regards to the Australian marine environment?

Prof. Stephens : Let me give you a concrete example. There is no reason why under the act a threat abatement plan couldn't spell out with a high degree of specificity what is needed to address climate change and ocean acidification. I draw the committee's attention to the very helpful position statement on climate change released by the Great Barrier Reef Marine Park Authority in June. That position statement overtly identifies that climate change is the greatest threat to the Great Barrier Reef. The position statement goes on to recognise the findings of the IPCC. It then highlights the urgent need to reduce Australian and global greenhouse gas emissions. That's a very helpful document.

It's worthwhile putting on the record the world-leading role that the Great Barrier Reef Marine Park Authority has played in marine conservation in Australia. It's often highlighted globally. When one goes to an international conference, the Great Barrier Reef Marine Park Authority is often held up as the gold standard for effective marine spatial planning and integrated marine protection. Turning to the remit of this inquiry, looking at the faunal extension crisis, there's no reason in my view why threat abatement plans or key threatening processes shouldn't deal more overtly and expressly with these large changes underway.

CHAIR: From what you're saying, if it is indeed an order of magnitude bigger threat, we need them to do that.

Prof. Stephens : Absolutely.

CHAIR: Reflecting upon how highly regarded the Great Barrier Reef Marine Park Authority is as an independent authority, do you think other marine areas should also have similar independent authorities?

Prof. Stephens : That's a good question, one which I hadn't really turned my mind to. The Great Barrier Reef is obviously a very significant marine bioregion—an extremely important large ecosystem with hundreds of thousands of species. We don't have the equivalent of that in any of those other Australian bioregions. There are six or seven major bioregions in Australia's marine environment. We don't have an independent authority speaking for those. Perhaps an argument could be made for them.

Senator URQUHART: Can you go through those seven bioregions? What are they?

Prof. Stephens : I'll do my best. Let's start in the north-west of Australia. They are the North-west Marine Region; up north, the North Marine Region; to the north-east, the Coral Sea marine region; the temperate east region to the south of that; where we are currently, the South-east Marine Region, which extends from the south of New South Wales—a bit further south from us—all the way down to Macquarie Island; and then moving west, the South-west Marine Region. We have marine bioregional plans for four of those marine regions, but the bioregional planning system is not complete.

Senator URQUHART: So there are four plans for seven of those regions.

Prof. Stephens : Correct.

Senator URQUHART: Can you tell me which four.

Prof. Stephens : Yes, I can. They are the south-west, north-west, north and temperate east.

Senator URQUHART: Thank you. In your submission you have a section on marine protected areas. You've outlined the delays in that and then the reduction in marine protected areas. You've then gone on to say:

This substantial delay and then ultimate weakening in the protection of marine critical habitats will mean that over time more work will need to be done at an individual species level.

How do we do that if we're dealing with a shrinking environment that's being protected?

Prof. Stephens : I think you've identified a significant problem there. The reality is that the previous government announced a very comprehensive suite of marine protected areas and followed that up with comprehensive plans. As I understand it, they were then rescinded, and then there was a long process of consultation to try to come up with new plans, which did result in far less protection both in spatial extents and the extent of protections within various areas. There would be merit in revisiting those and seeking to strengthen the plans for each of those marine protected areas.

Senator URQUHART: When you say strengthened, do you actually mean increased? Is that what you mean?

Prof. Stephens : I don't think there's any need to change the overall spatial extent, but when you pull out a map of these marine protected areas you can often see that they're of a patchwork character, that areas where there's less human activity tend to attract greater protection than areas where there's more activity, particularly from fishing operations. So, yes, there has definitely been a weakening of those. There are strong arguments for revisiting those and strengthening them.

Senator URQUHART: Do you see that that should be done through the act? How should that be done? What's the process for that?

Prof. Stephens : It should be done through the act. It should complement and it really should listen to the bioregional planning process. The bioregional plans are, I think, highly significant and helpful documents. This morning I spent a fair bit of time going through the south-west bioregional plan, which runs to 216 pages and contains a wealth of really robust, rigorous scientific information. That should inform the planning process.

Senator URQUHART: Thank you.

CHAIR: So we've got a process with the marine environment where we're doing those bioregional plans, at least for some of our marine environments. But then there's a gap as to decisions being made on the basis of that scientific evidence.

Prof. Stephens : Correct. I was listening to some of the exchange with the previous witness in relation to the Commonwealth constitutional responsibilities. This really is an area where the Commonwealth has sole constitutional responsibility. From three nautical miles onwards, out to the extent of Australia's exclusive economic zone and the continental shelf, it's the Commonwealth marine area. The Commonwealth has primary, sole responsibility to protect these areas, so there are great opportunities for the Commonwealth to take a greater leadership role in ensuring that they are effectively protected.

CHAIR: So you haven't got the problems of Commonwealth-state interactions and who is responsible. Do the critical habitat mechanisms of the EPBC Act apply to marine areas?

Prof. Stephens : As far as I'm aware, they do, yes. I'm not sure whether any have been identified. I'm afraid I can't assist you on that.

CHAIR: Would you be able to take that on notice? Certainly the limitations of the critical habitat mechanism in the act are that it only applies to Commonwealth owned, let's say, land. If we're talking about the marine environment, I don't know whether it extends to Commonwealth managed marine environments. But, obviously, given that you have got Commonwealth jurisdiction over it, it wouldn't be a limitation with regard to the marine environment.

Prof. Stephens : I'll take that on notice and provide a response. Likewise, Senator Smith, I'll answer your question in relation to SBT.

Senator Marielle SMITH: Thank you.

CHAIR: Are there any further questions?

Senator URQUHART: I have an observation rather than anything else. You've obviously studied so much of the ocean. If you were given the opportunity to advise how you think this should be approached and fixed, what would that advice be, if your wishes could come true?

Prof. Stephens : A lot of my recent work has been focused on the insidious threat of ocean acidification, which I don't think gets anywhere near as much press as it should. This really is a phenomenon that should be keeping people awake at night as much as, and perhaps even more than, climate change. It threatens the very basis of the marine food chain. It's going to affect us all.

CHAIR: We're talking about the same cause.

Prof. Stephens : It's the same cause, but it's—

CHAIR: Yes, increasing carbon dioxide levels in the oceans.

Prof. Stephens : It is terrifying. If I had one wish, it would be for governments to take that seriously, to integrate that into their decision-making about emissions reduction targets and to do all they can to reduce emissions rapidly and completely, because there's no way in which we are going to have a healthy and sustainable marine environment unless we do.

Senator URQUHART: Just in terms of that then, why doesn't it keep us awake at night? Is it because it's out there and we're not seeing it as much as we are land based environmental issues? Is that it's hidden part of the reason? Is that why?

Prof. Stephens : I think that explains a lot about the inadequacy, often, of protections of marine species and spaces. We are a terrestrial species; we don't spend all that much time in the oceans—or under the oceans, for that matter—absolutely.

CHAIR: Just in the final few minutes, can you talk us through what the impacts of that increasing ocean acidification are?

Prof. Stephens : Ocean acidification is actually a relatively straightforward chemical process. The CO2 is absorbed in the sea water. It forms carbonic acid. The key thing it does is reduce the availability of calcium carbonate, which is a core building block for a whole heap of organisms such as corals, but also things like krill in the Southern Ocean. So what we're doing is reducing these building blocks and also eroding some organisms such as corals.

There's been a lot of research done on this, and I would highlight some of the important research done in the Southern Ocean in relation to what might happen in and around Antarctica. But really the concern is that you are destroying the foundations of the marine food chain and food web—the ecosystem. That has massive implications—not just environmental implications but economic implications as well. You are going to start to see impacts, even at a physiological level, for a number of fish species. That is going to reduce catch levels and will have an impact on fishing industries in Australia and globally—in particular, shellfish and so on.

CHAIR: Could you finish up by giving us a few examples of species that are likely to be affected, and what sorts of impacts are being felt and are likely to be felt as we do something about reducing our carbon pollution.

Prof. Stephens : Let's stay with krill for the moment. Krill has been a focus of concern. There has been a fair bit of work done by the Australian scientific community looking at krill in the Southern Ocean. Krill is a foundation species—a number of species, including whales, feed on it. There has been laboratory work done on krill and there has also been work done in situ looking at the impact. A lot of the science is suggesting a very troubling forecast for what might happen to the sustainability of that marine species. And there are many other species that are similarly threatened by this process.

CHAIR: That will then flow through to other species, including many of the threatened marine species that we are considering today.

Prof. Stephens : Indeed.

CHAIR: And whales as well; if you are impacting on their major food source, it is going to have an impact. Thanks very much, Professor Stephens, for your evidence to the committee today. It has been very useful.

Prof. Stephens : Thank you.