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Sharks – they are a group of over 1,000 different species and they have beat the odds and survived the last 400 million years! However, over the last century sharks have become endangered and are increasingly under pressure. An estimated 100 million sharks are killed every year around the world, a number that far exceeds what many shark populations need to recover. Researchers have found that only 4.9% of sharks can be killed each year to maintain population stability, however between 6.4% and 7.9% of sharks of all species are killed annually.

In Australian waters, the primary threats to shark populations are commercial and recreational fisheries who accidentally and/or illegally capture and kill sharks, and shark control activities such as beach meshing and drum lining.

 

IS AUSTRALIA DOING ANYTHING TO HELP THE SHARKS?

Australia is a party to two international conventions significant to sharks as they both aim to protect endangered species through international cooperation. Several species of shark found in Australian waters are listed under the conventions, including the Great White, Whale, Oceanic Whitetip, Porbeagle, Scalloped Hammerhead, Great Hammerhead, and Smooth Hammerhead sharks.

Australia implements its international obligations through provisions in the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’). Under the EPBC Act it is an offence to kill, injure, or move a member of a species listed in the international conventions without a relevant approval or exemption.

Sharks are also ‘protected’ under Western Australian laws.

Despite these laws, in response to public safety concerns, shark control programs have been established by various Australian state governments.

From late January 2014 through to 30 April 2014 the WA Government undertook a trial program which proposed to catch and destroy any individual Great White, Tiger or Bull sharks greater than 3m in length. All three species of shark targeted under the program have been responsible for human deaths in Australia in the last 100 years, however they are also all protected under Federal or WA law. 64 sharks were destroyed or died on the drum lines. Although the program was ended on 30 April 2014 and the re-introduction of a similar program was rejected by the WA Environmental Protection Authority, the State has continued placing drum lines in WA waters as an ‘emergency response’ to shark attacks.

As recently as 1 June 2016, following a shark attack that killed WA surfer Ben Gerring, the WA Department of Fisheries laid a drum line and caught and killed a Great White Shark, a measure that is not supported by the WA public.

 

HOW ARE SHARK CONTROL PROGRAMS GETTING AROUND THE LAW?

Programs such as WA 2014 drum line program and its current ‘emergency response’ approach are possible because there are holes, ‘exemptions’, under the relevant Federal and State laws that supposedly protect sharks.

The 2014 drum line program was subject to an exemption granted to the WA Government.  The exemption permits the Federal Minister for Environment to grant an exemption if the Minister is satisfied that it is in the ‘national interest’ to do so. ‘In determining the national interest, the Minister may consider Australia’s defence or security or a national emergency,’ and this does not limit the matters the Minister may consider.’  The exemption section is therefore quite vague and then Minister for the Environment, Greg Hunt, was quick to conclude that public safety and protecting WA’s ocean based tourism industry were grounds enough for granting the exemption.

WA shark protection laws are just as easily avoidable. The WA Act, for example, provides that the Minister for Fisheries may exempt a person from the Act for one or more enumerated purposes, including for research, environmental protection, public safety, commercial purposes, or community education.  These purposes are so broad that they hardly constitute limits on the Minister’s discretion to make an exemption.

While a balance needs to be reached between protecting sharks and protecting citizens, and it is true that there have been 11 fatal shark attacks in WA since 2000, this amount is infinitesimal compared to the hundreds of millions of sharks killed by humans every year. As Australian Federal and State shark ‘protection’ laws stand today, sharks in Australian waters are offered extremely poor refuge from the increasing pressure they face.

 

 

About the authors:
This article has been co-authored by Claudia Giovannini and Jacqueline Brown at Lynn & Brown Lawyers. Claudia is currently studying law at UWA. Jacqui is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in family law, mediation and estate planning. Jacqui is also a Nationally Accredited Mediator and a Notary Public.

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