Minister for Environment and Heritage v Warne [2007] FCA 599

FEDERAL COURT OF AUSTRALIA

Minister for Environment and Heritage v Warne [2007] FCA 599

ENVIRONMENT PROTECTION – commercial fishing within boundaries of a reserve – civil penalty proceedings – joint submissions on penalty – appropriate penalty Environmental Protection and Biodiversity Conservation Act 1999 (Cth) s 354(1), s 481(3) NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 MINISTER FOR ENVIRONMENT AND HERITAGE v CRAIG WARNE WAD 117 OF 2006

SIOPIS J

27 APRIL 2007

PERTH IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 117 OF 2006

BETWEEN: MINISTER FOR ENVIRONMENT AND HERITAGE

Applicant

AND: CRAIG WARNE

Respondent

JUDGE: SIOPIS J

DATE OF ORDER: 27 APRIL 2007

WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. The respondent pay to the Commonwealth of Australia a pecuniary penalty pursuant to s 481 in the amount of twenty‑five thousand dollars ($25,000). 2. The respondent pay to the Commonwealth of Australia costs as agreed in the amount of twenty‑seven thousand five hundred dollars ($27,500), whereby: 2.1 twenty‑five thousand dollars ($25,000) is to be paid within twenty‑eight (28) days of the date of these orders; and 2.2 two thousand five hundred dollars ($2,500) is to be paid within a further twenty‑eight (28) days therefrom. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 117 OF 2006

BETWEEN: MINISTER FOR ENVIRONMENT AND HERITAGE

Applicant

AND: CRAIG WARNE

Respondent

JUDGE: SIOPIS J

DATE: 27 APRIL 2007

PLACE: PERTH

REASONS FOR JUDGMENT 1 On 27 January 2005 and 28 January 2005 the vessel, AFV Surefire, carried out commercial fishing activities in the vicinity of the Mermaid Reef National Marine Nature Reserve (the Mermaid Reef Reserve), which is located approximately 300 km due west of Broome. On four occasions during that period, the vessel entered, and engaged in trawl fishing activities within, the Mermaid Reef Reserve. In the course of those incursions, the vessel took scampi, a species of fish classified as a native species within the terms of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the Act). At the time that the Surefire entered the boundaries of the Mermaid Reef Reserve, the respondent was the skipper of the vessel and the person in control of its activities. There was no management plan in operation for the reserve, which permitted the fishing activities engaged in by the respondent. 2 The applicant alleges that by reason of the fishing activities carried out within the boundaries of the Mermaid Reef Reserve, the respondent contravened s 354(1)(a) and (1)(f) of the Act, and claims that a civil penalty should be imposed upon the respondent under s 481 of the Act. The respondent has filed a defence which admits the allegations made by the applicant in the statement of claim. Further, the parties have a filed an agreed statement of facts and have made joint submissions in support of the Court making orders in terms of a minute of consent orders signed by both parties. The minute proposes that the Court make the following orders: 1. The respondent pay to the Commonwealth of Australia a pecuniary penalty pursuant to s 481 in the amount of twenty‑five thousand dollars ($25,000). 2. The respondent pay to the Commonwealth of Australia costs as agreed in the amount of twenty‑seven thousand five hundred dollars ($27,500), whereby: 2.1 twenty‑five thousand dollars ($25,000) is to be paid within twenty‑eight (28) days of the date of these orders; and 2.2 two thousand five hundred dollars ($2,500) is to be paid within a further twenty‑eight (28) days therefrom. 3 The question is whether the Court should make those orders. Statutory background 4 Section 354(1) of the Act provides as follows: (1) A person must not do one of the following acts in a Commonwealth reserve except in accordance with a management plan in operation for the reserve: (a) kill, injure, take, trade, keep or move a member of a native species; or (b) damage heritage; or (c) carry on an excavation; or (d) erect a building or other structure; or (e) carry out works; or (f) take an action for commercial purposes. Civil penalty: (a) for an individual‑500 penalty units; (b) for a body corporate‑5,000 penalty units.