Bad cases invariably make bad law and the legislative response to the so-called super-trawler is a case in point.
There has been little explanation from Labor about why existing provisions of the Environment Protection and Biodiversity Conservation Act requiring ministerial approval of action in marine areas which “will have or is likely to have a significant impact on the environment" were insufficient to deal with this case.
Yet environment campaigners were determined to prevent any fishing at all by the super-trawler despite the fact it was not seeking to take more than Seafish Tasmania’s allocated quota of small pelagic fish and the independent regulator Australian Fisheries Management Authority finding its allocation was backed by scientific research.
As a result, after intense lobbying, caucus unrest and intervention by former prime minister Kevin Rudd,
This discretion is conditioned only upon an agreement with the fisheries minister that “there is uncertainty about the environmental, social or economic impacts of the identified fishing activity and that further assessment is required". What objective degree of uncertainty is required is not specified and potentially it is only a matter for the subjective determination of the fisheries and environment minister. Potentially, claims of uncertainty only could be sufficient.
Over the past two days the government has hastily amended its own bill to limit the new power to “commercial" fishing and remove reference to “social and economic" impacts amid concern about the breadth of this power. But the fundamental concern remains on the point of legal principle that the amendments provide a broad discretionary ministerial power for which there will be limited opportunities for review.
The Australian Financial Review