Blood in the water – the legal gymnastics behind the WA shark cull

By Beatrice Paull
Shark swimming in ocean

By Beatrice Paull.

Activist groups and legal sharks around the country are considering legal action following the announcement of the West Australian Government’s stupefying shark baiting and killing policy.

Close to 20,000 protesters have rallied both around Australia and internationally in response to the shark-kill plan. Despite this public outcry, WA Premier “Cullin” Barnett and Federal Environment Minister Greg Hunt continue to press on with the cull.

“The protests, campaigns and online actions we are seeing send a very clear message to state and federal MPs that this knee-jerk, reactionary policy making is not supported,” says Senator Rachel Siewert, the Australian Greens marine spokesperson. “The Greens are examining a range of actions in response to the cull at a state and federal level. Legal action is being considered.”

A statistical increase of One

Minister Hunt justifies these extreme measures by contending that sharks pose an “imminent threat to life” in Western Australia.

The Barnett Government’s panic was prompted by seven fatal shark attacks in the past three years. Each death is a tragedy and every sympathy must be extended to the victims’ friends and family. However, the increase in deaths is not the “significant statistical increase in shark strikes” that the Minister makes it out to be.  The historical average of shark-related fatalities in Australia is 1 person per year. In the last three years, that has increased to 2.3 people per year in Western Australia.

…Recent attacks do not just justify a cull which lacks evidentiary backing [and] threatens a vulnerable species

Fear-mongers decry this 133 per cent increase in deaths. But in what other field of disease or science is a statistical increase of one person a cause for panic?

“Shark attacks are still incredibly rare,” emphasises Senator Siewert. ‘It is important to remember that significantly more people are lost to rips or accidents during activities like rock fishing. Recent attacks do not just justify a cull which lacks evidentiary backing [and] threatens a vulnerable species”.

That bloody legislation and its loopholes

To allow the cull to go ahead, in mid-January Mr Hunt declared that the WA Government’s shark baiting program would be exempt from Part 3 of the federal Environment Protection and Biodiversity Conservation Act (1999) (“the Act”).

The great white shark is targeted in the cull, despite it being a listed threatened species and receiving legal protection under the EPBC Act.

The exemption means that the WA Government need not seek approval and assessment of their actions on the threatened species before proceeding.

The Minister applied the little-used section 158 of the Act to justify the shark cull, declaring that it is in the “national interest”.  Section 158 allows the Minister to exemption an action from the Act if he is satisfied that it is in the national interest to do so.

What the “national interest” actually is has not been defined in the Act, leading to potential legal ambiguity. The courts do not generally define “national interest” according to morals, or even by a public opinion poll, which, in this particular case, is disappointing because a poll by UMR Australia found that 82 per cent of Australians oppose the killings.

This exemption for the purpose of killing great white sharks is a departure from the history of exemptions to the EPBC Act. Since the Act was passed, there have only been 12 exemptions. Most have been clear instances of non-contentious “national emergency”, such as clearing vegetation and building fire breaks in 2009 in response to the Black Saturday bushfires. Another exemption was granted in order to capture species such as the blue-tailed skink that are on the verge of extinction and put them in a captive breeding program to restore their numbers. There appears to be a significant shift between ignoring the Act in order to effectively breed an endangered animal and ignoring the Act in order to reduce the population of an endangered animal as quickly and bloodily as possible.

…the decision fails the common sense test. Declaring the shark cull as necessary in the national interest sets a low standard for what is required to satisfy this test

“National interest is a broad term”, says Tom Warne-Smith, a Policy and Law Reform lawyer at the Victorian Environment Defender’s Office. “You have to look at the Minister’s decision in light of the scope, object and purpose of the Act and then decide if it’s within the power of the Minister to make this decision”.

Reasonable minds can differ on whether there is or is not enough error in the decision to merit a judicial review and challenge the decision on the grounds of unreasonableness. Judicial review aside, it is clear that the decision fails the common sense test. Declaring the shark cull as necessary in the national interest sets a low standard for what is required to satisfy this test.

Another challenge is time.  The Barnett government only has approval for the “shark control program” until 30 April 2014. The risk is that by the time a legal challenge progresses to the Federal Court, the killing will almost be over.

Getting in the way of science

Few people knew of the extent of the Environment Minister’s powers to make important decisions, like this one, at his discretion.

“Whilst there are limits, the discretion is broad and as is the case with so much of the EPBC Act, political considerations tend to get in the way of the science,” laments Warne-Smith.

Mr Hunt, who lacks any formal scientific qualifications, says that he has reviewed the recovery plan for the great white shark and determined that the cull will not disproportionately affect the species’ survival.

“Minister Hunt is failing in his responsibilities to protect the great white shark and other marine life,” insists Senator Siewert, who is pushing the Minister to revoke the exemption. In the meantime, at the time of writing, the Greens estimate that over 36 sharks have been caught in the nets of this unpopular WA shark cull.

Beatrice Paull is a law student at Monash University and an intern at the Environment Defender’s Office, Victoria.