The limits of merits review and the EPBC Act: Grey nurse sharks, fisheries and the AAT

Abstract

The grey nurse shark is listed as a critically-endangered species under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). One of the primary risks to the continued survival of the species is commercial fishing activity. Part 13A of the EPBC Act prohibits the export of product from a fishery if its operations will be detrimental to the survival of a taxon to which the operation relates. In 2007, the New South Wales Nature Conservation Council (NCC) brought a case in the Commonwealth Administrative Appeals Tribunal (AAT) challenging a decision of the Minister made under Pt 13A that allowed a commercial fishery in New South Wales to continue to export product. The NCC argued that the fishery's continued operation would be detrimental to the survival of the shark. The case was only the second time a decision in relation to fisheries assessment under Pt 13A had been challenged, and the first concerning a State-managed fishery. This article analyses the AAT's judgment and argues that it is flawed in many respects. It then uses the case to assess the role of merits review under the EPBC Act, highlighting that, although the AAT is not an ideal forum for review of environmental decisions, it is nevertheless important. Finally, the Grey Nurse Sharks Case is used to assess the effectiveness of Commonwealth regulation of State and Territory-managed fisheries under Pt 13A. Show more