Wednesday, 19 September 2012
Environment Protection and Biodiversity Conservation Amendment (Declared Commercial Fishing Activities) Bill 2012; In Committee
I seek leave to move Greens amendments on sheet 7282 and 7280 together.
These amendments relate to the sunset clause I talked about earlier in my second reading contribution, removing the sunset clause and restoring the social and economic impacts and consideration of those to the bill, and also banning a vessel over 2,000 tonnes and reversing the onus of proof, all of which I articulated in my second reading contribution.
We oppose the amendments.
The CHAIRMAN: Senator Siewert, I just make some clarification. We will need to put amendments (1) to (4) on sheet 7280 and then amendments (1) and (2) on sheet 7282 while (3) will have to be taken as a separate item, if you are comfortable with that.
Fine, thank you, Mr Chairman. I move items (1) to (4) on sheet 7280 and items (1) to (2) on sheet 7282:
(1) Schedule 1, item 1, page 3 (line 7), before Chapter 5B, insert:
Chapter 5AA—Oversize Fishing Vessels
Part 15AA—Oversize Fishing Vessels
Division 1 Prohibition
390SAA Civil penalty—fishing activity using an oversize fishing vessel
A person must not engage in fishing activity using an oversize fishing vessel in a Commonwealth marine area.
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
Note: If a body corporate is found to have contravened this section, an executive officer of the body may be found to have contravened section 494.
390SAB Offence—fishing activity using an oversize fishing vessel
(1) A person commits an offence if:
(a) the person takes an action; and
(b) the action is taken in a Commonwealth marine area; and
(c) the action is a fishing activity using an oversize fishing vessel.
Penalty: Imprisonment for 7 years or 420 penalty units, or both.
Note 1: If a body corporate is found to have committed an offence against this section, an executive officer of the body may be found to have committed an offence against section 495.
Note 2: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.
(2) Strict liability applies to paragraph (1)(b).
Note: For strict liability, see section 6.1 of the Criminal Code.
390SAC What is a fishing activity using an oversize fishing vessel ?
(1) A fishing activity using an oversize fishing vessel is a fishing activity using a vessel capable of processing and storing more than 2,000 tonnes of biomass.
(2) A fishing activity means an activity that constitutes fishing.
(2) Schedule 1, item 1, page 8 (lines 4 to 11), omit paragraph 390SF(3)(b), substitute:
(b) remains in force until a revocation of the declaration comes into force.
(3) Schedule 1, item 1, page 8 (lines 12 to 15), omit subsection 390SF(4).
(4) Schedule 1, item 11, page 12 (line 10), before item 11, insert:
10A Section 528
fishing activity using an oversize fishing vessel has the meaning given by subsection 390SAC(1).
(1) Schedule 1, item 1, page 5 (line 17), after "environmental", insert ", social or economic".
(2) Schedule 1, item 1, page 7 (line 22), after "environmental", insert ", social or economic".
Just to go back to where we were last night, I asked Senator Ludwig a series of questions in relation to the confidence of the Minister for Sustainability, Environment, Water, Population and Communities, Mr Burke, and the investigations that he might have taken to satisfy his uncertainty in relation to the science. I just wonder whether Minister Ludwig has had a chance to get any information on those matters overnight since he did take those on notice last night.
I understand that. I was reacting perhaps to your statement that you have confidence in Minister Burke. We might differ on that, as you might understand. I was really interested to know whether we do have any information as to who he actually consulted with—I did name a number of entities last night—in what he did himself to satisfy his uncertainty. As you would be aware, there is some question around that.
Minister, I acknowledge that we are debating an EPBC Act amending bill but there is an obvious role for you as the minister for fisheries in this particular matter regarding your certainty around the science. Who did you actually consult with during your discussions on this particular matter and do you actually have certainty in the science?
Clearly, I would take advice from the Department of Agriculture, Fisheries and Forestry in relation to the target species, plus the Australian Fisheries Management Authority, which is the independent regulatory authority, and of course, in respect of environment considerations, Minister Burke and his office.
Thank you, Minister, for that. My question is: did you take any advice from any outside agencies: for example, the Fisheries Research and Development Corporation, which does come under your portfolio responsibility in relation to this; the Institute for Marine and Antarctic Studies, which is a globally respected voice on this particular matter; and also, of course, the CSIRO, who do have a whole-of-ecosystem modelling program that looks at broader interactions in relation to this, specifically their Atlantis program, and who I understand have also peer reviewed a lot of the science on this?
On the total of that, I will take it on notice because I do not want to mislead the Senate. There were a number of advices I received, so I will be safe in respect of that rather than trying to list them now.
Can I ask the minister to respond to the question—acknowledging that it was amongst a number of others I asked—in relation to his confidence in the science around the quota and the setting of the quota for the fishery.
That is why I avoided it in that sense, that I think it is a question of fact, not a question of confidence. I am not a scientist, clearly. I take advice. I take advice from DAFF. I take advice from AFMA. And where I do have a role then that would be factually based decision making, evidence based decision making, on the available information that is provided to me. I would always take advice from the department of agriculture and/or AFMA, depending on the relevant circumstance of the matter.
Minister, does the advice that you have received from the department and from AFMA, which is an agency that comes within your portfolio responsibility, express confidence in the science around the setting of the quota for the fishery?
I think we are getting into a difficult area in that sense that I cannot speak for AFMA. I can certainly take it on notice. I have got no doubt AFMA do a very good job and I would imagine they would be confident in the science that they provide to me, and the same with DAFF. My assessment of that is a personal assessment as to the information that is provided to me.
I will take it on notice. There is a range of information that has been provided to me over the time. I will certainly go back and have a look. Nothing stands out particularly.
Surely, Minister, given that this whole debate is about confidence—Minister Burke has said that he is uncertain, particularly in relation to marine mammal interactions, as part of his decision-making process, which is, after all, why we are here—and part of your decision making under this new act is in fact about confidence and certainty around particularly the science and the quota, and if there is uncertainty then that is the trigger for this process, you have some idea whether you or your department are confident in the science around this fishery?
I think you missed the point again—or, perhaps, not again but in this instance at least. The bill has not passed and until and unless the bill passes I do not have a role. When the bill does pass, I do have a role––that is, a decision in unison with Minister Burke. When we are in that position I will assess the available information put to me, should it be put to me, but I do not want to pre-empt that. I will have a look at it and consider it then, basing that decision on information that is put to me at that particular time and on the evidence that is put to me. Again, what you are actually asking is for me to prejudge, and I will not do that.
Minister, you would be aware that there has been some media speculation around the calculations set in the quota, particularly by a Dr Wadsley, from Western Australia. Can you tell the committee whether you have any advice in response to that criticism?
If I recall correctly, there are a range of individuals and scientists who have had views in this area in the last month. I will go back and have a look at those and see whether there is any advice provided to me which is helpful in answering your question.
There are a couple of areas that I would like to explore in relation to the aspects of this bill. Minister, could you please explain to me how on Monday of last week you were fulsome in your defence, if I might say, of the Abel Tasman and of the people who, as a result of the encouragement by your predecessor as fisheries minister, Mr Burke, brought this big fishing vessel to Tasmania? On Monday, 10 September, in the Senate in answer to a question from Senator Whish-Wilson you were fulsome in your praise of the big fishing vessel. Quite rightly, you indicated that this had been looked at for some time—in fact, I think you mentioned that it had been since 2004, without the date. The scientists and those people whom you appointed to assess the reports of the scientists came to the conclusion that this was a productive, efficient and environmentally friendly way of fishing. Minister, if you are looking for your answer from Monday, I can give it to you if you do not have it in front of you and do not recall what you said. But, clearly, you were right on the message.
My first question is what happened on the night of Monday, 10 September, in an issue of proper fisheries management—I am not interested in the politics of it, Minister. I do not care if Kevin Rudd was about to roll Julia Gillard as Prime Minister. I am not interested in those sorts of things. I would hope that ministers in the government of my country would be making decisions on the basis of science and on the basis of what is good for the fishery. Clearly, on Monday, 10 September you were confident—in fact I think your words were that you 'need to give confidence that the food impacts of the small pelagic fishery on predators and on small pelagic fishery species themselves, including through localised depletion, are unlikely'—that is, any adverse impact. I am not a scientist but may I say, with respect, that that has always been my understanding. So I want to know, if you could please tell the Senate, what it was, as a responsible minister in charge of Australia's fisheries and the sustainability of Australia's fisheries, that happened on Monday night that caused you to change your mind completely.
I would also like to know, Minister, if you would be so good, which of the AFMA commission that you have appointed you do not have confidence in or respect for. The chairman is the Hon. Michael Egan, a former Labor treasurer of New South Wales, as I recall. There is Dr James Findlay, the CEO, a man whose scientific credentials are impeccable. If you ever wanted anyone in the world, I can confidently say, to give you good advice on fisheries and fisheries management it would be Dr Findlay. You have appointed a deputy chairman, Mr Richard Stevens, who I am delighted to say has been on the predecessor of the AFMA commission since I was minister. I know firsthand that Mr Stevens is an exceptional administrator when it comes to the science of fisheries management. There is Mr Ian Cartwright, who I know has been involved in fisheries management for years. You and I, Minister, have been involved in fisheries management in different periods of time in the flick of an eye in our history. Mr Cartwright has been there for years: a qualified, exceptional fisheries management person. You clearly agree with me, Minister—that is why you appointed him.
I do not know Dr Glaister, Ms Jennifer Goddard, Ms Elizabeth Montano or Ms Denise North. Perhaps I have met them, but I do not know a lot about them. But, again, Minister, I am confident that, if you appointed them on advice from your department, on advice from the fisheries industry and from those people who know, they would be good people. The final member of the commission is Professor Keith Sainsbury, who I do know. Again, whilst you and I are involved in a blip in history, Professor Sainsbury has been around for a long time. And he is good! That is why you, Minister, appointed him to the commission. I would really like to know why you, Minister, having appointed these nine exceptionally well-qualified experts as commission members—I know half of them, and I know they are good fisheries management people—have decided that their advice is wrong. It is not as if they woke up one morning and said, 'Let's have a look at this small pelagic fishery.'
As you mentioned very generously in your answer to the question on 10 September, you would know that since 2004 these people and all of the best fisheries scientists and managers have been looking at the small pelagic fishery. They and you came to the conclusion, Minister, as did your predecessor, that getting a big trawler to get the same quantity of fish out of the same quota—no more fish being caught; exactly the same quota—was a good way to go. Your predecessor, Mr Burke, as fisheries minister, encouraged Tasmanian fishermen to do exactly what was being done. Minister, ask your advisers all you like, but the record is there of what Mr Burke said and how he did encourage these people to do exactly what they did.
Mr Burke, in that instance, was correct. He knows as much about fisheries management as you or I do but he clearly took advice from the experts that he had appointed, not experts that have any political persuasion at all but experts in the business of fisheries management and that is why Mr Burke appointed them. Mr Burke took their advice, as well he should, and you took their advice. I refer you again to your answer to Senator Whish-Wilson's question on Monday, 10 September, where you took the advice, you appropriately referred the questioner to the science and you defended the action that your predecessor, Mr Burke, had taken as the fisheries minister.
Suddenly, on the night, I assume, of Monday, 10 September something happened. I know that one of your Western Australian colleagues of the left faction had indicated they were going to move a private member's bill, which the Greens naturally would have supported because they want to shut down any resource industry in Australia and it does not matter what it is.
Yes, all of them. So it would have got support from Mr Bandt in the other house and a couple of your left-wing colleagues if the Prime Minister had not had the fortitude to pull them into line. But it would not have mattered as that in itself was a blimp. Then suddenly Mr Kevin Rudd indicates publicly that he is going to support the private member's bill—oops, Mr Rudd is going to support Ms Parke's private member's bill and that brings a whole new complexity to the issue. Can you just see Mr Rudd and Ms Parke moving the motion sitting on one side of the green chamber over there and all of their colleagues sitting on the other side! That was never going to happen, was it, Minister? That was never going to happen. A Prime Minister who had some intestinal fortitude and who was a leader would have told her backbench members, Ms Parke and Mr Rudd, to toe the line, rely on the science and do what was right and do what Minister Burke had encouraged to happen when he was fisheries minister—and this would have gone through.
I have to say, Minister, that several months ago people rang me and said, 'We're seeking support.' I said, 'Well, don't come to me. I rely on the scientists. They have clearly said it's right. What's more, I know that the Labor Party is right behind you in your venture. So thanks for calling me but you need not waste your time or mine as it will go through. We know the Greens will be opposed to it.' The Labor Party, for once in their life, I suspect—although not once, as you have been right a couple of times—were firm on this.
I said to the people who rang me: 'Just have a look at what Mr Burke said as fisheries minister. He encouraged you to do it. There's no way in the world the Labor Party would backflip on this. They've backflipped on the carbon tax and on the mining tax—you name it—but they won't backflip on this, because science is on your side. You have a senior minister, Mr Burke, encouraging you to come there, so don't worry about it. You'll be right.' And they were right, and I was delighted, Minister, to hear your answer just last Monday, when you defended them appropriately on advice from the scientists and from the commission that your predecessor appointed.
So, Minister, my question in this committee stage of the bill is: what actually happened on Monday night? Forget the politics—I do not want to go into internal Labor Party factional deals—but what happened in a scientific fisheries management way on Monday night that caused you, on Tuesday morning, to have a completely different view to the view you expressed in this chamber on Monday at 2.20 pm? That is my first question: what happened? The second question is: which of those eminent scientists and fisheries managers that you or your predecessor as minister for fisheries appointed to the AFMA commission do you now not have confidence in? Which of those people are so incapable or ignorant that you no longer take the advice they have given you? They are two fairly simple questions.
Unfortunately, my time has run out. I do have another question. I will be much briefer on that, but I will just forewarn you on that so your advisers might be able to assist by getting some information. I want to briefly question you about the role of the ombudsman in this issue, but I will leave that to my next question if I may. But my first two questions are: what changed on Monday night and which members of that commission do you not have confidence in?
A challenge by Mr Rudd to Ms Gillard is nothing out of the ordinary; I accept that. But, Minister, you say nothing happened on Monday night. So please tell me what it was that occurred to make you do a complete 180-degree turn on an issue. Please tell it. There are some Australians listening to this. I see we are on broadcast today. I am sure they would want to know what changed your mind between 2.20 on Monday afternoon and when you held your press conference at 11 o'clock the next day. Something must have happened. As I say, I am not interested in the fact that Kevin Rudd was going to challenge Ms Gillard for the Prime Ministership. I am not interested in that. I want to know how you can look yourself in the mirror every morning and say—
Minister, you must have woken up on Tuesday morning, looked yourself in the face and said: 'I was right yesterday. I took the advice of all the scientists. I took the advice of these very highly qualified people I appointed. I was right.' But suddenly, for what you are trying to pass off as good fisheries management, you had a change of mind. I repeat: forget the challenge of Mr Rudd to Ms Gillard. But, Minister, you as a minister of the Crown and of our nation must be able to explain what happened overnight. You say in your answer to my question that you have full confidence in the board of the commission. Why don't you take their advice? With respect to you, Minister, and with respect to me as a former fisheries minister, we do not know much. We try, but we are not the experts.
You have appointed the best qualified scientists in the world, I would go so far as to say, to your commission, to give you advice. They gave you advice. On Monday you accepted it. Suddenly on Tuesday you did not. So please, Minister, do not treat me as fool—well, treat me as a fool; I accept that, but please do not treat the rest of your colleagues as fools. Please do not treat this chamber like that. There has to be a reason you ignored the advice of your expert.
I also read Mr Egan's letter to the ombudsman, and that disturbs me. This is the same ombudsman, I understand, who wrote questions at estimates for the Greens political party. I think it is the same ombudsman. Certainly Mr Egan thought that in his letter to the ombudsman. I think Mr Egan, former Labor Treasurer of New South Wales, was indicating that the ombudsman had sort of shown his colours. I do not know what the ombudsman's politics are, but, clearly, writing questions for the Greens at estimates gives an indication of where his political allegiances might lie.
The allegation that Mr Egan raised in his letter to the ombudsman is a very serious one. I would like, Minister, for you to tell us whether you and your government still have confidence in an ombudsman who would make a decision—as I understand Mr Egan's letter says—without even bothering to lift up the phone and ask the people who are being accused whether they have a view on it. He was not going to necessarily take their advice, but you would think that, if you go to an ombudsman and say 'Ian Macdonald is corrupt', natural justice would mean that the first thing the ombudsman would do is ring Ian Macdonald and say—sorry, I am using a bad analogy here; there is an Ian Macdonald who was a politician who is alleged to have been corrupt. He is a nice fellow. I used to know the other Ian Macdonald. He was also a fisheries minister. Perhaps my analogy, talking about an Ian Macdonald who is corrupt, is wrong, because that is the allegation. He was a Labor minister, you might remember; yet another Labor minister who is in trouble with corruption allegations.
Let me use a different scenario. If someone complains to the ombudsman that Ian Macdonald is drawing his salary but not coming to parliament, the first thing the ombudsman would do is ring me and say, 'Senator, I have had a complaint that you are taking your pay but you do not come to parliament.' There are one or two members on the other side—a member from up my way in North Queensland—who rarely go to parliament. The first thing the ombudsman would do is ring up and say: 'Senator Macdonald, it has been alleged that you do not attend parliament. Could you give me your side of the story? I am not going to say I believe you. But what do you say?' But the ombudsman in this instance apparently did not bother to even pick up the phone; he just took the complaint of the Greens political party at face value and, with his record in writing questions, you could understand that.
But my question is twofold. You have answered my previous one; you said nothing happened Monday night. I am sorry, but nobody believes you about that. I know your leader, Ms Gillard, is prone to telling lies. One day she promised there would be no carbon tax and a week later she introduced it. I know that is a bit of a thing in the Labor Party, but surely you cannot expect us to believe that on Monday night nothing happened to make you change your mind. I am challenging your answer and asking you to, please, give us a truthful answer. know your leader does not understand truthfulness and does not require ministers to be honest, but please, Minister: I have known you for a while. You are an old Boonah schoolboy, so you must be good. Please give us the truth. What happened Monday night that caused you to change your mind?
The other question is: does the government still have confidence in the Ombudsman who dealt with this issue in such a cavalier way that lacks any semblance of natural justice?
Minister, I would like to ask you about one specific thing. I know you appear to have some amnesia over the issues around the celebrated Monday night but I am sure you will have no difficulty with this question. This is a fundamental question about how well we manage our fisheries. It was very interesting to listen to Senator Macdonald; I think he diminished himself a little bit by saying he knows no more than other fisheries ministers. I can recall when he was the fisheries minister, and he was very good. We were not always on the same side of the debate, but he won most of them because he simply knew so much about it. I can recall him saying, 'Look, Nigel, this is how it operates,' and giving me a lecture—whilst it was quite unnecessary—on the fact that we had moved forward from the dinosaur age of input controls.
For those who do not understand the difference between input and output controls, it is the fundamental difference in two fisheries practices. Input controls probably were still the flavour of the month 30 to 35 years ago, and that was how we did it. We basically managed fisheries through inefficiency. We said, 'We think you're catching too many fish, so you're only allowed to use half your nets.' If we thought that was a bit difficult, we said, 'Make the holes in your nets bigger.' If you looked like you were pulling the boats too fast, we'd lower your horsepower. If you had a very smart skipper, we'd make sure he only had an IQ of five. There were a spectrum of efficiencies you could put on a boat and they were called input controls. We controlled the size of the boat and the net, we might say you could only fish for two days of the year and all those sorts of things.
But after a while we thought about that, and there are linkages in that system that people can get around. 'We'll make a certain horsepower motor, but we can do things to gearboxes to make the propeller turn faster and make the boat go harder.' So, to make sure all of those were out, we went back and said, 'What's our motivation?' Our motivation is to control the number of fish that are caught, so why don't we just do that? We will just say you can only catch this number of fish. So modelling happened, people developed, we all grew and the world knew then that output control fisheries were the way to go. At about the same time—25 years ago—people started output control fisheries, and slowly we have gone from input control fisheries in Australia to primarily output. Certainly the Commonwealth fisheries have a policy of going to output control. It is the best way to manage a fishery. It basically does not matter if you want to throw rotten socks in the water and kill fish. It does not matter how you go about doing it as long as you do it in a way that only kills or takes this many fish, and primarily for human consumption. They say, 'Go and do that.'
So we have had a bit of a change. We had a huge amount of confidence that that was the very best way to manage our fishery, but we seem to have sent a bit of a signal. The only issue about this boat that is different from the other boats that exist in the fishery is its size—in fact, its freezer capacity. It is not towing bigger gear. We have established it is not killing more fish than the other ones. It is not doing anything different in that regard apart from it being bigger because it has a huge freezer capacity to process stuff at sea. In effect, what we have said is that we are going to prohibit this vessel from being here because it is more efficient. That is an input control. That is the first input control I have seen introduced into Commonwealth fisheries management in the 35-odd years that I have been involved and had an interest in Australian fisheries.
Minister, I wonder if you could indicate whether this new decision to provide an inefficiency in a fishery to ensure that that vessel is unable to fish in Australian waters is a new direction for Australian fisheries management.
As I understand the question, we have moved to output control of the legal fisheries—mind you, not in all fisheries. There is still the northern prawn fishery. In fact, I will say that you agree with me that they should move as soon as possible to output control for the northern prawn fishery. I am sure you will help me achieve that this year.
Thank you for your confirmation that the policy of the Australian Fisheries Management Authority is to have all our Commonwealth fisheries in output control. Does this mean that, given we have now moved to an input control in this regard to this particular fishery, that you are now considering a multiple approach of both input controls and output controls across our Commonwealth fisheries?
Again, I am sure you will assist with me in moving to output control for the northern prawn fishery and I have asked Mr Ian Borthwick to review the legislation. I will wait for the results of that. There has been no change to fishing policy.
Minister, I would just like to ask about the use of the word 'uncertainty' which is on page 7 of the bill under Subdivision C—Final Declaration. It has been discussed a lot in the chamber in the last few weeks. Senator Brandis and Senator Abetz discussed that 'uncertainty' is a very broad term that has no legal meaning and should not find its way into a bill. I wanted to ask you whether the definition of that word related to the statistical definition of 'uncertainty'. My understanding of 'uncertainty' is that it is technically something that cannot be quantified as against probability being applied to a value, which is what we use to measure risks. If something is uncertain and it cannot be quantified at this point in time, is it a relevant word to use for such activities or such issues as local depletion? They have not been scientifically quantified, particularly in the way that the concerns have been allayed by local fishermen and discussed by conservation groups. Is it possible for us to calculate? Do we have the data to calculate things such as bycatch from an operation such as this supertrawler, particularly with a seal-exclusion device that has not been tested on this vessel?
In terms of the word 'uncertainty' which has been focused on in this bill: is it an appropriate word on its statistical definition, because it relates directly to something that is not able to be calculated versus risk which is very specifically able to be calculated by assigning of probability and an expected value? We can talk about managing risks to the fishery. But what if something is certain, statistically speaking? It cannot be calculated, or has not been calculated, which is the case with local depletion, for example. We have discussed the lack of scientific work in areas such as movement of the small pelagic fish species and our lack of understanding of impacts in local areas. Is it an appropriate word from a statistical point of view?
I just want to go to a couple of further questions that I have for Minister Ludwig. Minister, what is the situation with the final approvals for the vessel? Can you give me another indication of what the normal time frames for those are? I understand they are usually a relatively simple process. What are the delays around the final approvals for the vessel?
It is a matter for AFMA to make those decisions. As I am advised, AFMA has received a nomination fee of the Abel Tasman to fish in the small pelagic fishery. In order for the Abel Tasman to be nominated against a fishing concession it must be registered by the Australian Maritime Safety Authority as an Australian flagged vessel. This process was completed on 5 September 2012 when the Australian Maritime Safety Authority registered the FV Abel Tasman as an Australian flagged vessel under the Shipping Registration Act. It is currently, as I understand it, waiting final advice from the Australian Fisheries Management Authority about its request to use the FV Abel Tasman in the small pelagic fishery. I will take that on notice in case that has been updated between yesterday and today.
What is the normal time frame for this allocation process to occur? My understanding is that there was an expectation from Seafish to be able to go fishing the Friday before last, yet 'paperwork' issues are still holding up the process. What is the basis for what appears to be a variation from the normal process for allocating the quota once the registration matters are dealt with?
Clearly it is something that AFMA deals with as the independent regulator. I will ask them whether they can say if there is or is not a normal period for this to occur in and take it on notice.
Minister, Senator Macdonald asked a question of you in respect of the ombudsman's activities in relation to what is allegedly a private investigation that is occurring around the activities within the south-east MAC and the fact that Mr Egan, the chair of AFMA, had complained that the ombudsman, who I think Senator Macdonald alleged has a history in providing questions to the Greens at estimates, had not contacted AFMA to get their views in relation to that allegedly private investigation. My understanding is that no contact has been made with the company either, in relation to this allegedly private investigation. Does the minister have any advice on that?
I can get an update. But I always encourage people to recognise that the office of the ombudsman and the Australian Fisheries Management Authority are both independent bodies and act independently of one another and government. I respect this independence. Any comments you might want to make or questions, you should direct them to the ombudsman. I cannot speak on their behalf. In terms of AFMA, the same. They are an independent regulatory authority and if you have any questions in relation to their operation I am sure you can have avail yourself of that opportunity of getting a response from them. You can do that by questions on notice or through estimates, or you could write to them or email and ask for a response. But I do not think it is a matter that I should comment on or deal with.
Does the government have any concerns at all that we now have two allegations of unfair treatment by the ombudsman, who you would expect the community should have some confidence will treat any inquiry fairly and give due process to any inquiry? We now have in the space of 24 hours two allegations that the ombudsman is not treating this process fairly in the view of the two people making the allegation. Particularly given that there is a history around the operations of the ombudsman, does the government have no concern to all that we are in a situation where for a second time we appear to be having questions asked around the way the ombudsman is operating, particularly given that this is supposed to be a private process and yet one of the protagonists in the whole process is given a letter, which I have to say in my view was misrepresented, but was given a letter the day before an anti-company rally was to be held in Hobart so that it could be used as part of that anti-company rally. Does the government have any concerns that this seems to be occurring for a second time?
One of the difficulties is that I do not accept that a lot of what you say is factual as being factual. Again, I will simply reiterate that if you want to question the ombudsman about their conduct you should avail yourself of that opportunity. I am not going to put myself between the ombudsman and you in relation to what I think are some questions that you have been asking where, factually, I cannot even say whether they are accurate or not.
I just want to move on to another question in relation to the act. Can the minister give the committee any advice as to whether a section 33 declaration under the EPBC Act might have been considered as a part of the consideration of the government's capacity to deal with the issues around the vessel?
That fits under part 10 so I am not sure how it would relate to the current legislation, if at all. I do not see it being related. Part 10 considerations are completely separate. Again, they are matters for Minister Burke to consider, but they do not relate to this piece of legislation. They are part of the chain of events that occur for decisions under part 10. If you read section 33 under part 10, it has its own legislative requirements.
I might just take this a little bit further. My understanding, and my advice, is that section 33 declarations are necessary to exclude individual fishing operations from the provisions of part 3, including the prohibition on taking an action that is likely to have a significant impact on the environment in the Commonwealth marine area. I suppose the question comes back to the statement that Minister Burke made that he had no powers to do anything and therefore this legislation was necessary. What assessment was made around that particular provision of the act?
Again, I think that they are two different matters. Minister Burke has powers under part 10 section 33. As I understand the way that part 10 operates, you can propose a strategic assessment but you do not have to make a decision under part 10. That is entirely a matter for Minister Burke. Then we have this piece of legislation, and they are completely unrelated. I can take it on notice, if that might assist, and see if Minister Burke wants to provide any additional information to that. But I do not see the relationship between this piece of legislation and part 10.
It might help if you could take that on notice. I would appreciate getting an understanding of that. I suppose the question that comes from that is: given that we have had a lot of discussion around the science, the scientific assessments and the level of confidence that you, during the debate on this matter, have expressed at points in time, and that a number of other people have expressed, was it the fact that the science did provide that level of confidence that we are basically now in a situation where we are making a legislative process to deal with one particular event rather than a broader suite of measures—particularly demonstrated, given that we have had so many amendments to the legislation to narrow its focus as part of the debate this week, and last week in the other house?
There is one final matter that I do need to deal with in relation to this because it has become part of the debate. It is around the setting of the quota. The Greens were quite delighted that a new paper came out from IMAS last week, and I indicated that I would go back and have a look at that. One of the key things is that the science and the discussion around the science is very important and, unfortunately, as I have indicated in my previous contributions on this piece of legislation, there have been some very disappointing attempts to smear the scientists who are involved in this process. I understand there has been quite a reluctance by some of our institutions to allow those scientists to defend themselves. I have to say that that is quite disappointing because the naysaying comment effectively stands and there is very little opportunity for these people to actually make a comment.
The Greens and some media publications were declaring victory because at IMAS there had been some recalculations of the DEPM, the egg survey that is used as one of the elements of establishing the quota in the fishery. The fact that the scientists at IMAS had rerun the calculations using a number of different methods has brought, so it has been suggested, a result that means the quota should be very different. Dr Wadsley made the claim in the first place that the quota setting was wrong because, as he refers to it, he could not reproduce the calculations, he could not reproduce the numbers that were set by IMAS. One of the problems was that he was using the wrong method. In fact, he was not actually using a recognised method in the first place. He was using an Excel spreadsheet, and that is nothing like any of the recognised methods for doing the calculations that are required to establish the biomass. But unfortunately, instead of ringing up the scientists who had done the calculations to understand what the inputs were and what the decision-making process was around the selection of the method of calculation, Dr Wadsley, as Senator Whish-Wilson said yesterday, put it on a blog. So rather than science by peer review, which is what happened with the science that was done out of the Institute for Marine and Antarctic Studies, we now have a process where we have science via blog and that is the peer review process—by blog. Quite frankly, I do not think that has any credibility at all, and I do not think that Dr Wadsley's analysis has any credibility at all.
Not only that, but the person who is acknowledged as the expert on the DEPM process does not believe it has any credibility either. Nancy Lo, from the National Marine Fisheries Service in California, completely unsolicited—not asked by anybody—did a critique of Dr Wadsley's criticism. In other words, this is somebody who knows about this versus somebody who works as a geologist in the oil and gas sector and a mathematician. So, as I said when quoting the Chief Scientist, it is a bit like getting a dentist to give you advice on heart surgery. What did Nancy Lo say? She acknowledged that he had made 'some constructive comments' but said he had 'missed some major points'. The terminologies used by Dr Wadsley were too strong and some of them were not correct for the paper. As I said earlier, Dr Wadsley used Microsoft Excel to do the regression analysis. Most researchers use more sophisticated methods. While an undergraduate may know how to use these statistical packages, to understand the theory behind the estimation procedure requires a statistician or quantitative biologist with a higher academic degree. So, unsolicited, Dr Wadsley's criticism of the work done by IMAS has been rejected by Nancy Lo, who is the acknowledged expert in this particular matter regarding the calculations around the egg survey.
Of course, because Dr Wadsley was not a part of the process that decided the method of calculation, he understandably would not be aware of why a particular method was decided upon. So, within the assessment panel that looked at which method would be used—not within IMAS but within the resource assessment group—there was a decision made as to which method should be used. So IMAS used the method that was recommended to them by the resource assessment group. Not only that, but he is not privy to the base information. So he comes from outside, completely cold, and makes an analysis using a very simplistic method—one that does not have the sophistication of the models that are used more broadly in doing these calculations—but he does not even do the common courtesy of ringing the scientists to find out why he could not reproduce their results. He has since changed his story. It is not that he could not reproduce the results; it is now that they used the wrong method. So his credibility is sinking even further.
Interestingly, though—and, I think, showing him a lot more courtesy than many would—AFMA have invited Dr Wadsley to attend one of their meetings. I think that is a decent approach. As I said, many would not give him that courtesy, but they are giving him courtesy that he has not provided to any of them. In a press release yesterday, AFMA have invited Dr Wadsley to make a submission to the Small Pelagic Fishery Resource Assessment Group. They said, 'We also invite Dr Wadsley to contact Dr Tim Ward, the chair of that group, regarding his attention or participation in the future expert work of this group.'
It would be nice to see Dr Wadsley inform himself rather than just go public, make a criticism and allege that the quota is set at too low a level without understanding what happens behind it. I think that is a reasonable process to occur because that work of Dr Wadsley has been used in this debate against IMAS, and in particular against some people within IMAS. What has been forgotten in this process is that that work has been peer reviewed by SARDI in South Australia, and there is also a very, very sound body of work done by CSIRO. My understanding is that CSIRO has rerun all its calculations for the biomass in this fishery and that that work indicates the biomass is between 100,000 and 200,000 tonnes. The assessment of the resource assessment group and IMAS is that the biomass was at 140,000 tonnes, which was the basis for the setting of the quota.
The work by CSIRO was done using the Atlantis ecosystem model, something I referred to last night, and it has been rated the best in the world by the Food and Agriculture Organization of the United Nations—not by us; this was an external recognition. So, in respect of the certainty around the science for the quota, let us just put that to bed because there are a number of calculations, not just one, and the AFMA commission, as the minister has actually indicated on a number of occasions, does not just take the advice of the resource assessment group or the MAC, it takes advice from its own scientists and other sources. Here we have a very credible source, the CSIRO, that has made an assessment of this biomass as being between 100,000 and 200,000 tonnes.
So Dr Wadsley is now very much alone in his criticism. He was not aware of the inputs. He has taken one graph, tried to recalculate the calculations using Microsoft Excel rather than the modelling tools that are available to the industry and to the scientists, and could not reproduce it. He did not provide the common courtesy of going back and discussing it with the scientists who did the calculations to find out what was behind it and why; he just posted to a blog.
So, chair, I think that does deal with this issue. There has been much excitement. It is a 'gotcha' moment for the Greens and some of the people opposing the vessel but, as I have indicated, there are a number of other sources. I think it is appropriate that we do go back to the science to discuss this in order to have a good understanding. The important thing about the Atlantis model—and I am not sure whether Minister Ludwig is aware of it, because he has not said that he is aware of it, or Minister Burke—is that it actually modelled the whole biosystem. So the issue of interactions and impacts on marine mammals and other marine species are actually modelled as part of the CSIRO work. As I indicated, it is rated the best in the world by the Food and Agriculture Organization.
Let us put all that stuff aside. My understanding is that the reworked modelling from the CSIRO has not yet been released. I would be interested to know whether the minister has asked for it. I have, but I have not been able to get hold of it yet. I will be very interested to read it. I would recommend it to Minister Burke, because it might do something about his uncertainty.
I have one other final point on Dr Wadsley. I had a bit of a look at his qualifications and, as I said in my presentation, he is eminently well qualified in his fields, and I make no comment around that at all. But this is not the first time he has intervened in one of these environmental debates, so he actually has form.
He came out during the pulp mill debate in Tasmania to join an anti-pulp-mill panel, so here we have a second occasion where Dr Wadsley is opposing an investment in my home state of Tasmania and I just wonder whether or not there might be some philosophical perspective behind his comments, particularly given that he did not give the common courtesies that I mentioned before as part of his engagement with this particular issue. It is very disappointing that he did not do that but, as we now know, it is not the first time he has intervened in one of these types of issues. So I think it is important that I address where we were because the Greens seemed to be in a situation where they were really happy that the scientists that had done the research were now seemingly saying that their research was wrong. That is not what they were doing. They ran a number of calculations, they remained confident in the numbers that they put out and they remained confident in the reasons they put out, but there was not only that: their work was verified by other fisheries scientists in Australia and, importantly, it was reinforced by a completely separate model run by the CSIRO. That CSIRO work does not just deal with the biomass in this fishery; it actually deals with broader ecosystem issues and is regarded as the best in the world. It is something that we ought to be proud of, that we have an institution like CSIRO that can produce that sort of work.
I would like to make a statement and get a few things on the record in relation to what Senator Colbeck just discussed. There were no triumphant statements from the Greens about recent additions to the debate between Dr Wadsley and other unnamed people on blog sites. We simply highlighted that a report had been put on the AFMA website, incorrectly put up under the August media releases rather than under the September media releases, which did express a difference of opinion on estimation methods. We said that that, if converted using statistical methods, could show a difference in the total allowable catch for jack mackerel.
This debate between Dr Wadsley and other scientists—well, we suspect they are scientists based on the level of their understanding expressed on blog sites—has been going on for months. I mentioned a few days ago we have never pushed Dr Wadsley out there as a fisheries scientist nor have we highlighted his work in Hansard, in our media releases or at forums, although I did attend a recreational fisheries forum in Campbelltown where Dr Wadsley spoke.
I would like to take the opportunity to defend him here today in terms of his integrity, which I think Senator Colbeck has tried to tear down. I am not aware of his politics. He is a petroleum scientist. He works in the oil and gas industry. He would not be what I would classify as a green, in the sense that that is his career. I have done a fisheries modelling course myself at the University of Tasmania and I am aware of the differences in predictive power between Microsoft Excel and other packages which I have also used, although not as well as some of my colleagues, I must admit, and I actually think it is a very simplistic analysis. Microsoft Excel is used by Dr Wadsley in his risk consulting business for things such as the oil and gas industry.
Senator Colbeck mentioned earlier his participation in the pulp mill debate. He came out and did an analysis of the level of dioxin that was going to be put into Bass Strait and said that the official scientific reports, based on the work of a number of scientists, were incorrect. I cannot remember exactly what it was but it was a factor of billions, so one to the power of 10. In the end, after fighting a very similar campaign to have his analysis taken seriously, it was proven to be correct and we had a retraction in a statement about the potential level of dioxin in Bass Strait and in the fishery. That was thanks to his dogged determination—and I would not say it was about his philosophy on pulp mills but rather the science in this instance and especially the statistics. What he has focused on here is simply statistics. It is about the difference in estimation methods.
Scientific models are very complex and the amount of data that they use is enormous, particularly the ecosystem model. I was very fortunate to have a chat last night to the CSIRO scientist who is the champion of the ecosystem model in Hobart, and I am well aware of the complexities of models. I have myself used information from models that are some of the most complex mathematical models in the world in terms of trying to predict the linkages between financial variables, for example. There are literally potentially millions of variables involved in these models, so I know the difference between risk and uncertainty and how they function, and everybody does the best they can.
I want to highlight what this issue is to me in terms of scrutiny versus attacking the scientists. The Liberals have run a very consistent line both in the house and against me personally that by scrutinising science we are somehow attacking the scientists. This is from the editorial today in the Mercury, obviously one of the key newspapers in the south of Tasmania where a lot of these scientists are based. I will quote a small section of it. It is talking about scrutiny in terms of the science of the quota setting, localised depletion and the ombudsman's investigation:
This type of scrutiny is rare for an organisation like AFMA, which generally operates behind a veil and in its own domain. It is king, judge, jury and all powerful. Suddenly, its authority is being questioned and issues have been identified to suggest its processes and science need review. This is healthy democracy at work. It does not necessarily mean the scientists and public servants at AFMA are bad people or that they have consciously been deceitful or negligent or even failed in their duties.
It does, however, mean they must be accountable, transparent and above board. They must explain, in laymen's terms, their decisions. They must accept public scrutiny.
In terms of Dr Wadsley, who my statement refers to, I see this as an ongoing debate and I am very pleased that he has been brought into the tent and he is talking with AFMA. I mentioned the other day that I have made attempts to try and get him to talk directly with scientists at various organisations so that they can sort this out behind closed doors. I can guarantee to the house today that that is exactly what Dr Wadsley has wanted. I am very pleased that it has got to the stage where his analysis is being taken seriously. I saw a post on the same blog site that Senator Colbeck was referring to this morning where Dr Wadsley is still insistent that his analysis is correct. It is also worth pointing out that he did recently put out a research report which was peer reviewed and has been submitted for an article publication. So this is not just typing up rats and mice on a blog site; he has actually now published his work, his full statistical analysis of the whole chain of events that have led to this analysis.
My point I want to get on the record is that this is still ongoing and it is healthy that citizens in our community take an interest in this and that these things are scrutinised. I say sorry to the fishery scientists if they believe this has not been conducted the right way. It is unfortunate, as Senator Colbeck pointed out, that this was not done differently in the beginning, but at the end of the day Dr Wadsley feels very much attacked as well personally and very much under the pump. I am looking forward to seeing the end result of this work because I do believe that scrutiny is important and that should be taken into account.