Baird, Rachel --- "Coastal State Fisheries Management: A Review Of Australian Enforcement Action In The Heard And McDonald Islands Australian Fishing Zone" [2004] DeakinLawRw 4; (2004) 9(1) Deakin Law Review 91

COASTAL STATE FISHERIES MANAGEMENT: A REVIEW OF AUSTRALIAN ENFORCEMENT ACTION IN THE HEARD AND MCDONALD ISLANDS AUSTRALIAN FISHING ZONE

RACHEL BAIRD[*]

I. INTRODUCTION

In 1953 the Heard and McDonald Islands Act, which formalised the transfer of sovereignty over the two named sub-Antarctic islands from the United Kingdom,[1] was passed by the Australian Government. For the ensuing 40 years, Australian management of the Islands was uneventful. The first sub-Antarctic scientific station was established at Atlas Cove, on Heard Island, in December 1947 following the initial indication by Britain of a willingness to transfer rights to the Islands.[2] In 1987 the Islands, together with their 12 mile territorial sea, were proclaimed a wilderness reserve with a number of activities including fishing and mining prohibited.[3] The same area was included on the World Heritage List in 1997.[4] In 1979 a 200 nautical mile Australian Fishing Zone (AFZ) was proclaimed around all Australian territories.[5] In 1994 new terminology was embraced and the Exclusive Economic Zone was declared.[6]

It was not until the mid 1990s that Australian authorities turned their attention to the enforcement and management of potential fisheries in the Heard and McDonald Islands AFZ.[7] An Exploratory Fishery Interim Management Policy was formulated in 1997 in response to commercial interest in the maritime area. This portion of the AFZ is now managed pursuant to the Heard and McDonald Islands Fishery Management Plan 2002. Whilst the interim policy authorised two Australian companies to fish the Australian waters, many more were keenly interested in participating in what was regarded a highly

lucrative developing fishery. In October 1997 the first foreign fishing vessel was arrested for fishing within the Heard and McDonald Islands AFZ without authorisation. A total of eight fishing vessels have been arrested at the time of writing.

Whilst this figure seems very low, (an average of one arrest per year) particularly in comparison to the hundreds of arrests of foreign fishing vessels in Australia’s northern waters,[8] one should bear in mind that the average value of the catch on board the vessels arrested in Australia’s southern most fishing zone, is in excess of $AU1 million.[9] The 191 tonnes of Toothfish on board the Maya V apprehended was recently sold to public tender for more than AU$ 2 million.[10] Surveillance of the waters, the enforcement of management plans and deterrence of illegal fisherpersons is therefore a priority for the Australian Fisheries Management Authority, the Federal Agency tasked with managing Commonwealth fisheries.[11]

This paper discusses Australian surveillance and enforcement policy for the Heard and McDonald Islands AFZ, reviews the arrests and subsequent prosecutions of crew members under domestic law, and finally discusses options for enhancing the future management of the fishery.

It is first necessary, however, to overview the threat posed by illegal, unreported or unregulated fishing (IUU fishing) in the Southern Ocean and examine the target species. The Australian response through the formal enforcement policy is then reviewed together with an analysis of the discernible shift in IUU fishing practices. Following that appears an outline of the arrests to date and a review of the application of domestic fisheries legislation. This article then concludes with an examination for future policy development in the management of the Heard and McDonald Islands fishery.

MAP 1 – HEARD AND MCDONALD ISLANDS AUSTRALIAN FISHING ZONE

II. TARGET SPECIES

The target fish species in the Heard and McDonald Islands AFZ is the Patagonian Toothfish. There are two species of Toothfish living in the Southern Ocean. Both are similar in appearance and habit, however the Antarctic Toothfish (Dissostichus mawsoni) is found closer to the Antarctic continent where sea ice forms and has not been subject to harvesting in the quantities as the Patagonian Toothfish.[12]

The Patagonian Toothfish is a demersal, or sea-floor dwelling, species. However at some stages of life it is pelagic (meaning living at or near the ocean surface).[13] It is a large fish reaching up to 2.2 metres

in length and up to 100 kilograms in weight.[14] They can be found in waters from 300 to 2,500 metres deep however dwelling at the ocean depths does not protect them as long line systems have been developed to target bigger fish at 2,500 metres.[15] The species is vulnerable to the impacts of overfishing for two reasons. First, it matures very slowly and takes 10-12 years to reach spawning age. This increases the risk of juveniles being caught before reproduction has occurred. Secondly, the remote and inhospitable location of the fishery means there have been difficulties in obtaining reliable scientific data about the dispersal of stock and population groupings, which in turn hampers stock management.[16] Unregulated and unreported fishing compounds this second difficulty for managers can only guess at the size of the unreported catch.

The Toothfish is a valued commodity in both the Japanese and American markets. It is traded under a variety of names. On the Asian market it is known as the Mero. It is sold as Chilean Seas Bass or simply Sea Bass in the USA. In southern Chile, fishermen refer to it as Merlusa nigra (black hake).[17] The range of names can act against efforts to track the illegal trade in Toothfish.[18] Prices can vary from US$5,000-7,000 per tonne[19] making it an attractive catch for coastal and high seas fishing States alike.

The larger, more valuable stocks are found within the sub-Antarctic exclusive economic zones of South Africa, France, Australia and New Zealand.[20] Significantly, the Toothfish has been identified as a straddling fish stock.[21] The Toothfish is known to exist in good quantities on the Kerguelen Plateau which is a continental shelf upon which the Kerguelen Isles and Heard and McDonald Islands are situated. Commercially valuable populations straddle areas of high seas adjacent to both the French Exclusive Economic Zone around the Kerguelen Isles and the Australian Fishing Zone declared offshore to the Heard and McDonald Islands.

This fact makes management of the Toothfish stock more difficult because the principle of the freedom of the high seas[22] means high seas fishing is not subject to regulation. Hence, fishing activities in areas of high seas can have an adverse impact on the portion of a straddling stock located within an adjacent exclusive economic zone.[23]

In 1995, Australia and South Africa advised the CCAMLR Commission of their respective intentions to commence a new fishery within their respective maritime zones.[24] A total allowable catch for sub area 58.5.2 (the Heard and McDonald Islands) was established at a precautionary limit of 297 tonnes.[25] At the 2003 CCAMLR meeting, the Commission endorsed advice from the Scientific Committee by adopting a catch limit of 2,873 tonnes for area 58.5.2.[26]

III. THE ARRIVAL OF THE FOREIGN FISHING FLEET IN THE HEARD AND MCDONALD ISLANDS’ AFZ

The IUU fishing fleet has been targeting Patagonian Toothfish within the Southern Ocean since the early 1990s. Starting in waters adjacent to South Georgia Island[27] the fleet has swathed path through the Southern Ocean, tracking east from South Georgia Island, to Bouvet Island (Norway), the Prince Edward Islands and Marion Island (South Africa); the Crozet and Kerguelen island (France) and the Heard and McDonald Islands. Map 2 indicates the location of these islands.

MAP 2- CCAMLR CONVENTION AREA WITH LOCATION OF SUB-ANTARCTIC ISLANDS

The Australian fishing vessels authorised to fish within the AFZ reported the presence of illegal vessels operating in the area from 1996. At this point it is appropriate to note that whilst the phrase ‘illegal fishers’ is often used, it is in fact an abbreviation of the term ‘illegal, unreported and unregulated fishing’ which has been adopted by the international community to refer to development of an unsustainable approach or style of fishing.[28]

In 1997 estimates placed as many as 70 illegal fishing vessels operating in the vicinity of the Heard and McDonald Islands.[29] The first foreign fishing vessel was arrested by Australia in October 1997.

Globally, illegal fishing has become a highly profitable enterprise. The Patagonian Toothfish is a valuable fish and with poachers taking up to four times the legal quota, it has been noted that the illegal trade has ‘probably become more profitable than running drugs or smuggling people.’[30] A single voyage can return over a million dollars worth of Toothfish, a fact which has prompted leading industry and NGO spokespersons to observe that perhaps the ‘easiest way to make a million bucks at the moment is to put together a boat and go fishing for a season in the Southern Ocean.’[31]

The influx of corporate funds into the illegal fishing industry has increased the size of the illegal fishing fleet and has created additional enforcement difficulties for coastal States. For example, illegal vessels tend to operate in groups, sharing information and resources. The Lena was one of a group of eight vessels operating around the Heard, McDonald and Kerguelen Islands prior to her arrest in February 2002.[32] The fishing vessels are usually equipped with modern communication and radar equipment which can be utilised to monitor the position of fisheries patrols and to communicate with other foreign fishing vessels and corporate headquarters.[33]

The use of false SOS signals has also been reported by Australian authorities. When pursuing the Lena, the Australian fisheries patrol vessel was forced to break off the hot pursuit to attend a nearby SOS call. The call was later proven to be false when no vessel in distress could be located.[34] The infiltration of a criminal element into illegal fishing has led to calls by the fishing industry for the placement of armed personnel on board civilian patrol vessels.[35] The Director of Austral Fisheries recently made the comment that:

There needs to be force involved. It’s not going to be, ‘Welcome aboard and let me take you on a scenic cruise back to Fremantle’. [36]

IV. AUSTRALIA’S SURVEILLANCE AND ENFORCEMENT POLICY

A. Responding to an escalating threat

The Australian Southern Ocean Surveillance Program was established in 1998 and is implemented by the Australian Fisheries Management Authority. Although it remains limited to the use of civilian patrol vessels, the cost of fisheries enforcement in the Heard and McDonald Islands’ fishing zone is significant. The Australian Government committed AU$15.8 million over four years from the 1998/1999 fishing year to June 2003.[37] In May 2003, an additional AU$10.8 million was allocated in the 2003/2004 budget to enhance the capability of patrols.[38] A single patrol is estimated to cost approximately AU$2 million.[39]

As the majority of arrests have involved an element of the Australian Defence Force, the budgeted expenditure has often been exceeded. During the trial of two crew members of the Salvora, the first foreign fishing vessel arrested by Australia, the prosecutor informed the Court that:

Two large vessels HMAS Anzac and Westralia were required to travel a significant distance and handle some rough sea conditions to arrive at about 4000 kilometres south-west of Fremantle where the Salvora was boarded. The cost of running the two ships is significant and the HMAS Anzac carried a helicopter which was used in the boarding. In addition, two RAAF aircraft undertook forward surveillance at a significant cost.[40]

Notwithstanding the direction that Australian Defence Force personnel and hardware were only to be used as a last resort if civilian enforcement agencies were unable to secure an arrest,[41] elements of the ADF have been employed in seven of the eight arrests to date. The government decision is reflected in the 1997 Australian Strategic Defence Policy which states that:

[O]ffshore territories require no special consideration in Australian defence policy,

except for the need to be able to assist other agencies from time to time with surveillance

and enforcement operations in the EEZs surrounding those territories.[42]

Under the surveillance program, a schedule of monitoring is set in advance and can be altered to meet changing circumstances. The aims of the Surveillance Program are to deter illegal fishing operations by maintaining a presence in the Heard and McDonald Island Australian Fishing Zone, warn off possible illegal fishermen/vessels operating on the high seas adjacent to the Heard and McDonald Islands Australian Fishing Zone; initiate hot pursuit with recourse to the Australian Defence Force for assistance where needed, collect illegal fishing gear if found inside the Australian Fishing Zone and gather intelligence on possible offenders.[43]

On 25 July 2002, the Minister for Fisheries Senator Ian McDonald announced plans to- ‘Get tougher on Toothfish poachers’.[44] Exact details of the enhanced program were not available for public release but the Government announced that patrols would be increased within the Heard and McDonald Islands Fishing Zone.[45] Other measures outlined included cooperating with relevant nations including France, South Africa, the United Kingdom and New Zealand with possible joint surveillance agreements, developing cooperative arrangements with relevant trading countries and working with these countries to restrict market access for illegal catches of Toothfish,[46] and using strong diplomatic efforts to pressure for better controls over illegal fishing.

The July 2002 program was followed by a February 2003 announcement of Cabinet agreement to an ‘intensive campaign to protect our fisheries around Heard Island and McDonald Island’.[47] In May 2003 the Government announced that the civilian charter vessel program would be replaced by armed enforcement patrols. Customs officers will provide support to Australian Fisheries Management authority officers with no immediate plans to introduce an Australian Defence Force element into patrols.[48]

The first armed civil fisheries patrol in the Heard and McDonald Islands Fishing zone was conducted between April and May 2003. Australian customs officers were armed with 9mm Glock pistols, handcuffs, capsicum spray and batons. M16 rifles were also available if required.[49] In an environment where foreign fishing vessels have repeatedly displayed an intention to run rather than succumb to arrest,[50] this armoury seems lightweight. Pistols, handcuffs and sprays are effective at close quarters, once the fleeing vessel has actually been forced to stop and been safely boarded. The patrol leader was interviewed on the vessel’s return to the Australian mainland and was quoted as stating that:

[I]f a foreign fishing vessel had been intercepted, suitable weather conditions would

have been needed to board.[51]

In the Southern Ocean, ‘suitable’ weather conditions are not common and the chances of a successful boarding slight. Indeed the Maya V was apprehended in January 2004 with the assistance of a Naval boarding party from the HMAS Warramunga. The sailors were ‘fast-roped’ on board the Maya V from the ship’s helicopter.[52]

B. A new type of fisherperson- plunder and flee

In December 2003 the government announced an additional AU$80-100 million commitment to fund armed patrols of the Heard and McDonalds Islands AFZ.[53] An ice-strengthened vessel, leased by Australian Customs, will patrol the AFZ, primarily in the Southern Ocean. The vessel will be equipped with a deck-mounted .50 calibre machine gun, a Customs boarding party, armed with handguns, a civilian steaming party and Australian Fisheries Officers.[54]

No doubt the difficulties encountered in arresting illegal vessel in recent years has prompted this most recent governmental response. In addition to the budgeted funding, the recent hot pursuits conducted by Australian authorities have incurred considerable costs. It has been estimated that approximately AU$1.23 million was incurred over and above normal patrol costs in apprehending the South Tomi in 2001.[55] The South Tomi was detained after a 15 day pursuit which traversed 3,300 nautical miles across the Southern Indian Ocean. Australian Defence Force personnel boarded the vessel south of Cape Town with the assistance of the South African military.[56] The Southern Supporter, the civilian patrol vessel pursing the South Tomi, had been unable to force the vessel to stop. The government officers and civilian crew on board the Southern Supporter were unarmed and there was no helicopter boarding capacity.[57]

Whilst not confirmed, it has been reported that Australian expects to be billed for the assistance provided by South African and the United Kingdom during the pursuit of the Viarsa.[58] The Viarsa was pursued by the Southern Supporter for 21 days in August 2003, through treacherous and ice packed seas. [59] When ordered to accompany the Southern Supporter to port the Viarsa sailed west towards Cape Horn. Hampered by rough seas and poor weather, armed Customs officers on board the Southern Supporter were unable to affect an arrest.[60]

In late December 2001, the Lena evaded a civilian patrol vessel for 14 days before finally escaping with her alleged illegally caught hold of Toothfish.[61] She was later arrested in February 2002 with the aid of a helicopter boarding party from HMAS Canberra.[62] Table 1 below provides details of the three hot pursuits conducted by Australian authorities.

TABLE 1 – RECENT HOT PURSUITS BY AUSTRALIAN PATROL VESSELS IN THE SOUTHERN OCEAN[63]

It is perhaps understandable then that each individual arrest has been widely publicised by Australian authorities and hailed as a potent warning to other would be illegal fishers. In announcing the most recent arrest, that of the Maya V in January 2004, the Minister for Fisheries, Forestry and Conservation stated:

This joint Defence-AFMA apprehension marks another blow to illegal fishers and proves once again that Australia has the capacity to act decisively in all sorts of locations and conditions to protect our fisheries resources and territorial waters.

The Table below summarises the arrests to date, listing the name of the vessel, flag State and date of arrest.

TABLE 2 –AUSTRALIAN ARRESTS OF FOREIGN FISHING VESSELS WITHIN THE HEARD AND MCDONALD ISLANDS FISHING ZONE

This Table has been compiled from Ministerial Press Releases, principally from the Department of Fisheries, Forestry and Agriculture, the Australian Fisheries Management Authority and the Customs Department.

V. AUSTRALIAN FISHERIES LEGISLATION IN PRACTICE

Generally speaking, law enforcement officers have been increasingly successful in applying the Fisheries Management Act 1991 to maximum effect. The Act has been amended as difficulties have been encountered providing AFMA officers with authority to seize arrested vessels and prosecutors with more flexibility in formulating charges. The relevant sections of the Fisheries Management Act are outlined in Table 4 below. In the context of an examination of the law, this paper refers to the circumstances of individual prosecutions, and the orders made in relation to the arrested vessels (and catches) to illustrate how procedures, post arrest, have been finessed as new obstacles have arisen.

The Fisheries Management Act was significantly amended in 1999 when intentional offences were introduced to compliment the existing strict liability provisions. [64] Another significant amendment related to the making of a forfeiture order in relation to seized vessels, fishing gear and equipment. Section 106A of the Fisheries Management Act now states any fishing vessel used in an offence under sections 95(2), 99, 100, 100A 101 or 101A is condemned as forfeited to the Commonwealth.[65]

Notice must be given of the seizure of items under section 106C. Unless the owner or person in possession or control of the item before seizure provides written notice of a claim against the forfeiture, within 30 days of receipt of such notice, the item is “condemned as forfeited” under section 106E.

The amendment of section 106C was in response to the successful application by the mortgagee of the Aliza Glacial for the recovery and sale of the vessel. The owner had defaulted on loan repayments shortly after the vessel’s arrest within the Heard and McDonald Islands AFZ in late 1997. Bergensbanken, the Norwegian mortgagee, instituted proceedings in the Australian Federal Court under the Admiralty Act 1988 (Commonwealth), to recover the vessel. The Federal Court ordered the sale of the Alizia Glacial notwithstanding the seizure of the vessel by Australian authorities, under section 84 of the Fisheries Management Act.[66]

Prior to the 1999 amending Act, no actual right of forfeiture accrued to the Commonwealth until such time as a conviction under specified sections of the Fisheries Management Act was recorded against a crew member of the arrested vessel. The wording of section 106 before the 199 amendments stated:

Upon a conviction of a person under sections 95, 99 or 100 the court may order the forfeiture of all or any of the following:

The Australian Government’s interest in the vessel was therefore no more than a potential interest, and consequently subject to the property rights of a mortgagee. Given that both of the crew members charged with offences - Captain Andreassen and Fishing Master Miranda- had left Australia and there was little likelihood of either defendant returning to face the charges, Justice Ryan stated he was not inclined to delay the order sought by the mortgagee for the sale of the vessel.[67]

Under section 106C of the Fisheries Management Act, AFMA officers can issue a notice to the vessel owner that the vessel, catch and gear are condemned as forfeited. Orders have been made in relation to the arrest of the South Tomi, Lena, Volga, Viarsa and Maya V. The owners of the South Tomi instituted proceedings in the Federal Court to challenge the forfeiture order however the application was withdrawn and the notice under section 106C became binding. The owners of the Volga, Olbers Co. Ltd commenced proceedings in the Federal Court on 21 May 2002 challenging the validity of the forfeiture under the Fisheries Management Act. The main plank of their argument was that before section 106 could operate to effect a forfeiture of the vessel, the gear and catch on board, it was necessary that there be a conviction for one or more of the offences upon which such forfeiture was said to based. Nearly two years later, Justice French dismissed the application, referring to the opportunity for the owners of forfeited vessels to contest the forfeiture under section 106F:

Absent the institution of such proceedings within thirty days of a notice of seizure under s 106C the asserted forfeiture will be put beyond question by operation of s 106E. That process requires no conviction to have been recorded. I reject the contention that s 106A depends for its application upon a conviction for one or more of the offences mentioned in it.[68]

The applicants have since appealed the decision of Justice French and the matter was listed for directions hearings (to settle the index to appeal papers) before the District Registrar in the Western Australian Registry of the Federal Court on 25 May 2004. A hearing date for the appeal is yet to be set. Whilst the appeal casts a degree of uncertainty over the fate of the Volga, the significance of the decision is evident. Legal loopholes are being closed to illegal fishing operators and the intended benefits of the 1999 amendments are being realised.

The Master of the South Tomi, the fourth foreign fishing vessel arrested on suspicion of illegal fishing within the Australian Fishing Zone, was charged under section 108(c) of the Fisheries Management Act for failing to comply with the repeated order to alter his vessel’s heading for Fremantle, Australia.[69] During the trial, the defence team produced an audio tape of an Australian fisheries officer directing the Master to “go to port.” As the Fisheries Management Act requires that section 84 directions name the actual port, enough doubt was cast on the certainty of the order and the Master was acquitted on this charge.[70]

This successful challenge demonstrates the long reach of anonymous corporations which have entered the lucrative illegal fishing industry in recent years.[71] Those members of the crew who are charged invariably have access to quality legal advice, paid for by the vessel’s owners. This is evidenced by the defences run in Australian courts[72] and the documents found on board the South Tomi.[73]

Another instance of the corporatisation of the illegal fishing industry is the application to the International Tribunal for the Law of the Sea (ITLOS) by Russia, the flag State of the Volga. The application was made for prompt release of the vessel under article 292 of the LOSC.[74] During the course of the hearings, counsel for Australia produced evidence that the address used to register the vessel under a Russian flag was false.[75] Even more compelling evidence that the owners of the illegal fishing vessels have significant corporate resources at their disposal is the fact that the New Zealand law firm briefed to appear on behalf of Russia before ITLOS in December 2002 is the same firm which has run the Australian Federal Court action since 21 May 2002.[76] This suggests international and domestic legal challenges were centrally coordinated and planned by an entity standing behind the vessel and its operators. It gives further weight to the argument that IUU fishing has become a highly organised corporate business.

Further amendments to the Fisheries Management Act have been recently introduced via the Fisheries Legislation Amendment (Compliance and Deterrence Measures and other Matters) Act. The amendments to allow the recovery of the cost of any pursuit and apprehension of illegal fishing vessels. The maximum fine is also increased from AU$550,000, to AU$825,000 (applicable only to vessel longer than 25 metres). The reference to the recovery of the cost of apprehension comes after the costly 21 day hot pursuit of the Viarsa in August 2003. The vessel was ultimately arrested with the assistance of both South African and British vessels. Australia is, reportedly, expecting to meet the costs incurred by South Africa and the United Kingdom in coming to her assistance.[77] The decision to increase the maximum fine is also encouraging. In circumstances where the illegal activity can net the offenders in excess of AU$1 million, fines can be regarded as simply a cost of doing business. Whilst the Australian Courts have been conservative in awarding fines to date, the increased maximum fine is intended, by the Government at least, to provide an increased deterrence to would be illegal fishers.

The record of fines imposed pursuant to the prosecution and conviction of individual crew members is listed in Table 3 below. It can be seen that the person charges have tended to be those in command of the vessel on apprehension. Thus the Fishing Master and Captain are named in column 2 of Table 3. The rational for this approach has been that the crew on board many foreign fishing vessels are usually poorly educated and unaware of the vessel’s location. However, as can be seen in the cases of the Viarsa and Maya V, the net has recently been cast much wider and a greater number of crew members have been charged and convicted for the offence of fishing within the AFZ without authority.[78] Another development which reflects the nature of illegal fishing is the good behaviour bond placed on the convicted crew members of the Maya V. On 1 April 2004 a Perth Magistrate placed 32 crew members on a five year $4,000 good behaviour bond. Should they reappear before an Australian Court on similar charges, they will as individuals, be subject to additional penalties for the first offence and then face prosecution and sentencing for the second offences. [79]

TABLE 3- RECORD OF FINES IMPOSED FOR CONVICTIONS OF FOREIGN FISHERPERSONS ARRESTED IN THE HEARD AND MCDONALD AFZ UNDER FISHERIES MANAGEMENT ACT 1991[80]

TABLE 4 -OFFENCES UNDER THE FISHERIES MANAGEMENT ACT 1991 (COMMONWEALTH) IN RELATION TO FOREIGN FISHING VESSELS

* Inserted into principal Act by the Fisheries Legislation Amendment Act (No.1) 1999 which commenced on 3 November 1999. These offences were not available in relation to the arrests of the Aliza Glacial, Salvora and Big Star as they were arrested prior to November 1999.

** Although no charges have been laid under this section (inserted in 1999) there has been evidence of support boats assisting foreign fishing boats fishing illegally within the Australian Fishing Zone. This point was considered in M/V Saiga (1999) (No2) Saint Vincent and the Grenadines v Guinea (1999) ITLOS Case No 2 Judgement dated 1 July 1999, paragraphs 56-59. The Tribunal noted that arguments could be advanced to support bunkering of a fishing vessel as an activity within Article 73, LOSC.

*** Officer means a s 83 officer including an Australian Fisheries Management Authority employee; member of Australian Federal Police or State police; or member of Australian Defence Force.

VI. STRATEGIES FOR ENHANCED MANAGEMENT IN THE FUTURE

A. Cooperative surveillance and enforcement

An alternative to high cost unilateral military surveillance and enforcement would be to commit to joint surveillance and enforcement with other coastal States under the framework of a regional treaty. The framework for bilateral or multilateral cooperation is already in place. The UN Fish Stocks Agreement specifically provides for the boarding and inspection of the flag vessels of member States, by authorised officers of other member States.[81] However, responsibility for the investigation of alleged offences and the imposition of penalties remains with flag States. The CCAMLR System of Observation and Inspection also provides for the boarding and inspection of member’s vessels within the CCAMLR Convention Area. This system is instituted on a national basis with inspectors appointed by contracting parties and subject to the jurisdiction of the appointing State.[82] Reports submitted at the Commission’s annual meetings however, indicate that number of inspections under the system has been very low in comparison to the number of designated Inspectors.[83]

Following the success of the cooperative efforts of the South African and Australian Defence Forces in apprehending the South Tomi, the then Australian Minister for Fisheries observed:

It indicates the sort of national and international action required if we are going to prevent, deter and eliminate the scourge of illegal, unreported and unregulated fishing.[84]

The benefits of international cooperation were once again made evident with the successful arrest of the Viarsa in August 2003. The Australian Government acknowledged:

The assistance of these cooperating international vessels has been invaluable. Without them the operation would never have been as successful as it has been.[85]

Whilst there have been instances of cooperative enforcement, the need for increased cooperative surveillance to detect (and deter) IUU fishing vessels is evident. For example, the Viarsa was active in the Southern Ocean before her arrest in August 2003. She reportedly unloaded 230 tonnes of Toothfish in Mauritius in June 2003. This information was reported by COLTO, the Coalition of Legal Toothfish Operators established in March 2003. Apparently, some monitoring of the movement of known IUU fishing vessels does occur at the industry level. A formal system at the government Departmental level is required.

At the very least, a formal system of information exchange between States with sovereign interests in the Southern Ocean should be implemented. The evidence suggests illegal fishing vessels operating in the Southern Ocean do so in groups, alerting each other about the presence of Australian or French government patrol vessels in the area.[86] The Australian fishing industry has supported joint surveillance with other States as “the only feasible alternative” to deter the illegal fishing boats.[87]

Strong informal working relationships have been forged at officer level between enforcement agencies in Australia, New Zealand, South Africa and France.[88] In March 2001, Australian Fisheries Management Officers visited South African Fishing Authorities to deliver presentations on Australian enforcement in the Heard and McDonald Islands fishing zone and pursue opportunities for joint intelligence sharing.[89] In April 2001 the Australian authorities were able to call on their South African counterparts and request assistance in apprehending the South Tomi as it fled across the south Indian Ocean.[90]

Whilst cooperation between the Southern Ocean coastal States remains informal there are some avenues that could be pursued to establish a framework for systematic information sharing and cooperative surveillance. Shortly after the arrest of the South Tomi in 2001, the Australian Government stated:

The successful outcome of this operation marked some significant firsts and has laid the groundwork for enhanced international cooperation in dealing with the problems of illegal fishing activity in both the remote waters of the Southern Ocean and other parts of the high seas. It is particularly significant to Australia given the distances involved and the environmental importance of the waters of the Southern Ocean.[91]

The international community has recently agreed to establish an Organisation for Economic Cooperation and Development Ministerial Taskforce to “tackle the problem of illegal fishing”.[92] Participating States include Australia, New Zealand, Namibia, Chile and the UK. Other identified opportunities for improved regional cooperation include are discussed below.

B. Bilateral treaty on cooperation between Australia and France

Over the past several years ongoing negotiations between Australia and France have sought to settle the terms of a joint surveillance treaty to cover their respective maritime zones in the Southern Ocean Both the Kerguelen Isles and the Heard and McDonald Islands are situated on the Kerguelen Plateau. On 24 November 2003, officials from both Governments signed the Treaty.[93] Under the terms of the Treaty the parties have agreed to exchange information on the location, movement and licensing of fishing vessels.[94] There is also provision for requesting the assistance of the other party when engaged in a hot pursuit.[95] Whilst the Treaty is restricted to cooperative surveillance at this stage, it does contemplate the negotiation of further agreements on law enforcement operations.[96]

C. Draft text for cooperative action with South Africa

Reference has been made to discussions on a draft text between Australian and South Africa with a view to formalising cooperative action against illegal fishing within the Southern Ocean.[97] No formal arrangements have been implemented and both Governments rely upon the strong informal working relationships forged at the Departmental level.[98]

D. Coalition of East Antarctic States

Members of the Australian Parliament have on occasions referred to a coalition of East Antarctic States (Australia, New Zealand, France, Norway and South Africa) however no formal arrangements have been settled.[99] The 1998 Australian Fisheries Management Authority report referred to a meeting of East Antarctic Coastal States in South Africa that year to address the ‘considerable and increasing problem of illegal fishing for the Patagonian Toothfish in Antarctic waters.’[100] The specific aim of the meeting was to discuss the types of measures that might collectively be taken.[101]

Although substantive outcomes were predicted from the 1998 meeting,[102] the Coalition remains informal. In the broader context of establishing an international strategy for combating IUU fishermen, the Australian Government announced it would seek to enhance international agreements and increase diplomatic pressure.[103]

E. Diplomatic Action

In late 1998, Australia and France sent a joint demarche to Mauritius to address the role of port states in assisting to eliminate illegal fishing for the Toothfish.[104] This visit was prompted by the docking of the Salvora, a pirate fishing vessel, pursued by Greenpeace from Australian waters adjacent to the Heard and McDonald Islands. Australian officials requested that the Salvora not be allowed into port to unload her catch of Toothfish without a full investigation of her fishing activities.[105] Officials in Mauritius agreed to intervene if the Salvora arrived at the port of Saint Loius.[106]

In 1997, CCAMLR decided to invite both Namibia and Mauritius to attend the 1998 CCAMLR Commission meeting as observers.[107] As both States are known port States with little regulation of the Toothfish entering its borders, it was a vital step in closing doors to the illegal trade. This followed joint diplomatic pressure by France, Australia, New Zealand and South Africa on Mauritius and Namibia to close their ports to the landing and processing of illegal catches of Toothfish.[108]

Australia has also provided training to authorities in Mauritius and Namibia in reaching compliance with the Toothfish Catch Documentation Scheme implemented by CCAMLR in 1999.[109] Australia continues to send officers to monitor the landings of Toothfish at Port Louis, Mauritius, by licensed Australian fishing vessels and will do so until satisfied Mauritius has the capability to implement comprehensive monitoring and document validation.[110]

In 2002 both Australia and South Africa made representations to Mozambique authorities urging them to prevent the unloading of Toothfish from two Uruguayan flagged vessels, the Dorita and the Arvisa 1.[111] It seems that despite diplomatic approaches to the flag State to take action in relation to false identities employed by the two vessels, Uruguay declined to withdraw the validated Catch Documents and the catch entered the international markets.[112]

Australian authorities then sought the assistance of known market States urging them to hold imported shipments from either vessel until the matter was investigated. Over 200 tonnes of Toothfish product was traced to Japan, China, Hong Kong and the USA. Despite the provision of detailed reports by Australia, all importing States, save the USA, declined to hold the shipments.[113] The USA seized and declared as illegal a 32 tonne shipment traced to the Arvisa 1 and scheduled for import into America.[114]

The Dorita had previously been the subject of diplomatic discussions between Australia, South Africa and Mauritius. In 1999 the vessel was refused entry to South African ports on the basis that Catch Documents produced were inadequate in supporting claims of a legal high seas catch. The Dorita then set sail for Mauritius and following representations by Australian officials, Mauritius requested Catch Documents consistent with the CCAMLR Catch Document Scheme. The documents produced by the vessel’s Master were deemed suitable by Mauritian officials.[115]

Pleasingly, in January 2004, the Mauritian Prime Minister announced a commitment to close his State’s port of Saint Louis to illegal fishers. This announcement followed a visit from the Australian Minister for Fisheries.[116] It remains to be seen what whether this promise translates to reality.

F. CCAMLR Vessel Database and other sources of information

The initiative established by the CCAMLR Commission of establishing a list of Contracting and Non-Contracting Parties engaged in IUU fishing within the Convention Area will potentially assist members in targeting illegal fishing vessels.[117] In 2001 the Commission was requested to consider compiling a list of flag of convenience vessels as well as adding additional information on the vessel owners, companies and subsidiaries.[118]

Although still in its infancy, with many issues such as the criteria for listing a vessl to be agreed amongst CCAMLR Commission members, the CCAMLR Vessel Database has already been acknowledged by member States as a valuable tool in performing monitoring and surveillance of the Southern ocean exclusive economic zones and the wider Convention Area.[119]

COLTO also maintains a database of known and suspected illegal fishing vessels.[120] More recently COLTO was established to voice the concerns of the legal fishing industry. Representatives attended the CCAMLR 2003 meeting and tabled a Report entitled: “Rogues Gallery, the new face of IUU fishing for Toothfish”. It has been reported that the tabling of the Report invoked quite a reaction from the delegates of some of the member States named as participants in the IUU fishing industry. The reaction was such that COLTO withdrew its Report.[121]

Greenpeace has also been instrumental in raising public awareness of the illegal fishing industry[122] and in successfully lobbying governments and CCAMLR meetings. Greenpeace maintains a Rogues Gallery on its website providing unofficial listings of illegal fishing vessels, their owners and fishing history. Similarly the Antarctic and Southern Ocean Coalition and ISOFISH have contributed to raising the media profile of illegal fishers.[123] The work of ISOFISH also contributes to closing the information advantage the illegal fishermen have over Government authorities. Several ISOFISH publications have exposed not only the highly organised nature of the illegal fishing industry but also some of the regular vessels and organisations funding the fishing operations.[124]

Both Australia and France have benefited from the presence of research, industry and NGO vessels in the respective Southern Ocean. In July 2002 the Southern Champion, an Australian fishing vessel licensed to fish in the Heard and McDonald Island’s fishing zone, encountered the Arvisa 1 within the Kerguelen fishing zone. As the Arvisa 1 was in close proximity to abandoned fishing gear, the Southern Champion gave chase and alerted a nearby French patrol vessel.[125] The Arvisa 1 was arrested; however by this time she had been renamed the Eternal.[126]

VII. CONCLUSION

Nearly seven years have passed since the first arrest of an illegal fishing vessel in the Heard and McDonald Islands AFZ. In that time the principle Act has been amended to enhance the powers of enforcement officers and increase maximum fines. As the cunning of the illegal Toothfish operators has increased the government has endeavoured to respond accordingly. Vessels may be legally forfeited (and sunk) without the need for a conviction of crew members under the Fisheries Management Act. Likewise, the catch on board can be forfeited and sold to public tender. The prosecution net has been cast wider to lay charges against entire crews rather than the senior members. Repeat offenders are being identified.

A dedicated public awareness campaign is being conducted with arrests, prosecutions and conventions being widely broadcast. In addition the government has publicly supported international cooperative initiatives such as the OECD Taskforce on IUU fishing, CCAMLR vessel data base and the bilateral cooperative surveillance treaty with France.

Whilst the tide has not yet been turned against the illegal fishing vessels and their corporate backers, the profits made in plundering our AFZ are being reduced through the application of legal fees and fines. Further more, vessels are no longer promptly returned to their owners for re-crewing and swift return to the Southern Ocean. The successful defence of forfeiture under section 106A of the Fisheries Management Act provides the owners of illegal fishing vessel slim chances of ever seeing their vessels operating on the high seas again.

This is a dynamic area of domestic and international law in which the Australian government has responded in a deliberate and determined manner, adhering at all time to the rule of law. The success of Australia in prosecuting increasingly greater numbers of the illegal vessel’s crew, forfeiting and sinking vessels and seizing catches and selling them by public tender are a positive contribution to the ongoing battle with what has become the scourge of illegal fishing.

[*] Lecturer, School of Law, Deakin University.

[1] See Map 1 for location.

[2] Quentin .Hanich, ‘Enforcement and Compliance Challenges to the Management of the Heard and McDonald Island Fisheries’. Research Report No. 17 (2000) Antarctic Cooperative Research Centre.

[3] Heard and McDonald Islands Environment Protection and Management Ordinance 1987. Section 14 prohibits fishing.

[4] <http://www.whc.unesco.org/heritage.htm>

[5] Commonwealth of Australia Government Gazette No.S189, 26 September 1979.

[6] The Maritime Legislation Amendment Act 1994 amended the Seas and Submerged Lands Act 1973, See sections 10A and 3 of the amended Act.

[7] The Fisheries Management Act 1991 continues to use the terminology of Australian Fishing Zone with reference to Commonwealth Fisheries in preference to the term Exclusive Economic Zone. The same choice of terminology has been adopted for this paper.

[8] 144 vessels were apprehended in 2002. See the Australian Fisheries Management Authority Annual Report 2002-2003, XI. In 2003, 138 vessels were arrested in the northern AFZ. See, Media Release, Minister for Fisheries, Forestry and Conservation, ‘First illegal fishers caught for 2004’ 7 January 2004, DAFF04/001M.

[9] This figure is obtained from averaging out the estimated value of the catch on board the eight arrested vessels. It should be noted that the first two arrested vessels in 1997 had small quantities of fish on board valued between $178,000 and 250,000 so they have not been used for averaging purposes.

[10] Joint Statement, Minister for fisheries, Forestry and Conservation and Minister for Justice and Customs, ‘Toothfish tender nets over $2M’, 23 April 2004 DAFF04/60MJ.

[11] AFMA Annual Report 2002-2003, above n.8. The Australian Government Department of Agriculture, Fisheries and Forestry has coordinated a high level policy group for the purpose of improving foreign compliance with Australian management measures.

[12] Australian Antarctic Data Centre, ‘Toothfish: 10 Facts’ (undated). See also D J Agnew, ‘The Illegal and Unregulated Fishery for Toothfish in the Southern Ocean and the CCAMLR Catch Documentation Scheme’ (2000) 24 Marine Policy 316, 361.

[13] AFMA Fact Sheet, ‘Commonwealth Fisheries, Heard and McDonald Islands – Principal Commercial Fish Species’ undated.

[14] Ibid.

[15] ISOFISH, The Involvement of Mauritius in the trade in Patagonian Toothfish from illegal and unregulated long line fishing in the Southern Ocean and what might be done about it, Occasional Report No1. (August 1998, 3rd edition) Part 4.2.

[16] ‘Principal Commercial Fish Species’ above n 13. See also discussion about the meta-population in the Indian Ocean, above n 8.

[17] ASOC Press Release, ‘Patagonian Toothfish- Going to hell in a fishing basket’ 29 October 1999.

[18] ISOFISH Occasional Report No.1 above n 15.

[19] AAP Press Release (001 PAC) ‘Valuable Fish Species being plundered in the Southern Ocean’ 18 May 1997.

[20] Ibid.

[21] Convention for the Conservation of Antarctic Marine Living Resources (1982) 19 ILM 841. (CCAMLR) Entry into force 7 April 1982. CCAMLR-XIII (1992), paragraph 143.

[22] Law of the Sea Convention 1982, Articles 87 and 116.

[23] It is not within the scope of this paper to discuss straddling fish stock management under international law. There are many articles which examine this area of fisheries management, See, eg, Mark Christopherson, ‘Towards a rational harvest: The United Nations Agreement on Straddling Fish Stocks and Highly Migratory Species’ (1996) 5 Minnesota Journal of Global Trade 357; Lawrence Juda, ‘The United Nations Agreement on Straddling and Highly Migratory Fish Stocks: A Critique’ (1997) 28 Ocean Development and International Law 147 and Rosemary Rayfuse, ‘The United Nations Agreement on Straddling and Highly Migratory Fish Stocks- A Case of wishful Thinking?’ (1999) Australian Yearbook of international Law 253.

[24] CCAMLR –XIV (1995) Report of the Scientific Committee paragraphs 8.1, 8.7.

[25] CCAMLR XIV (1995) Conservation Measure 78/XIII amended to Conservation Measure 78/XIV.

[26] CCAMLR-XXII (2003) Preliminary Report, paragraph 10.52.

[27] CCAMLR-XII (1993) Report of Scientific Committee, paragraphs 3.34-3.38.

[28] Illegal, unreported or unregulated fishing (IUU fishing) has been defined in the International Plan of Action for IUU Fishing adopted by the 24th session of the FAO Committee on Fisheries. 2 March 2001. The CCAMLR Commission is credited as being the first regional fisheries management organisation to formally recognise and name the practice. CCAMLR-XVI (1997), paragraphs 8.7-8.13.

[29] ‘Fishing Piracy around Antarctica shadows Treaty Meeting’ AFP Christchurch, New Zealand. 12 May 1997.

[30] Bruce Montgomery, ‘A Fishy business’, The Weekend Australian, 26-27 October 2002, 28.

[31] Australian Broadcasting Commission, Four Corners, The Toothfish Pirates, Broadcast 30 September 2002.

[32] Ibid. The Master of the Lena was interviewed on the program and stated that he believed the Lena was sacrificed by the corporate headquarters of the foreign fishing fleet so that the Australian Navy would leave the region and the remaining vessels in the group could recommence fishing.

[33] Four Corners, above n 31. See also, personal communication with Mr John Davis, October 2001.

[34] Megan Saunders, ‘Toothfish pirate uses SOS to escape’, The Australian, 8 October 2002.

[35] See, eg, ‘Government urged to tighten Fisheries Defences’ The Age, 20 February 2002, 4 and ‘Sink Poaching Boats so they don’t Return: Fishing Boss’, The Australian, 19 February 2002, 5.

[36] Per David Carter, The Australian Broadcasting Commission, ‘The 7.30 Report’ Broadcast, 19 August 2003.

[37] Australian Fisheries, Forestry and Agriculture Fact Sheet: ‘Global Fisheries Issues affecting Australia’, undated.

[38] Joint Statement, Minister for Fisheries, Forestry and Conservation and Minister for Justice and Customs: ‘ $12 million budget boost to fight illegal fishing in Southern Ocean’, 13 May 2003. $10.8 million is directed to surveillance and $1.8 million to improve post arrest processes.

[39] Amanda Hodge, ‘Cold pursuit finally reels in Toothfish poachers’, The Australian, 29 August 2003, 3.

[40] The Queen v Santome and Paz, (Unreported, Western Australian District Court, 14 October 1998) 16.

[41] Australian Fisheries Management Authority Fact Sheet: The AFMA Southern Ocean Surveillance Program, undated

[42] Australia’s Strategic Policy 1997, 30.

[43] Australian Fisheries Management Authority, Fact Sheet, Operation Cosmo- Hot Pursuit and apprehension of suspected Illegal Fishing Vessel undated.

[44] Media Release, Minister for Forestry and Conservation, ‘Government to get tougher on Toothfish poachers’, 25 July 2002.

[45] The frequency of patrols and details as to when, where and who are not available to the public. For obvious security reasons, the Minister’s Office would not comment on whether ADF members would form part of the patrols.

[46] This measure is linked to the move by Australia to support the listing of the Toothfish under CITES at the Meeting of CCAMLR Convention Parties in November 2002. Successful listing would impose strict trade regulations on the import of Toothfish. Verification that the trade is legal would be required. Although the proposed listing was not supported by CCAMLR parties, Australia views a CITES listing as complimentary to the CCAMLR management measures. See, Federal Minister for the Environment and Heritage, ‘Australia seeks more protection for Toothfish’, 5 June 2002.

[47] Minister for Fisheries, Forestry and Conservation, ‘Australia steps up the battle on illegal fishing’, AFFA03/017M, 9 February 2003.

[48] Joint Press Release, ‘$12 million Budget boost’ above n 38.

[49] Charles Waterhouse, ‘No bites on armed fisheries patrol’, The Mercury, 13 May 2003.

[50] As supported by the three recent hot pursuits of vessels detected within the Heard and McDonald Islands fishing zone.

[51] Ibid.

[52] Joint Statement, Minister for Fisheries, Forestry and Conservation and Minister for Defence, ‘Navy catches suspected Illegal Fishing Vessel’ 24 January 2004, AFFA04/015MJ.

[53] Joint Statement, Minister for Fisheries, Forestry and Conservation and Minister for Justice and Customs, ‘Permanent armed patrols to toughen up border protection in Southern Ocean’ 17 December 2003, AFFA03/277MJ. See also Joint Statement, ‘Navy catches suspected illegal fishing vessel’, above n 52.

[54] Ibid.

[55] Commonwealth of Australia, Senate Hansard, Answer to Question on Notice No. 730, 10 December 2002, 7659.

[56] ‘Operation Cosmo’ above n 43. See also Melissa Fyfe, ‘Poachers lose in the sail of the century’, The Age, 6 May 2000, 3.

[57] Ibid.

[58] Amanda Hodge, ‘Customs closes in on poachers’ The Australian, 28 August 2003, 3 and ‘Cold pursuit finally reels in Toothfish poachers’ above n.39.

[59] Minister for Fisheries, Forestry and Conservation Press Release: Dangerous Ice pursuit of Viarsa now longest in Australian maritime history, AFFA03/166MJ, 25 August 2003.

[60] Ibid. See also subsequent Media Releases AFFA03/152MJ dated 13 August, AFFA03/155MJ, dated 14 August, AFFA03/158MJ, dated 19 August.

[61] Report of Member’s Activities in the Convention Area 2001-2002 - Australia. CCAMLR-XXI (2002).

[62] Ibid. In the weeks since the December 2001 hot pursuit, the Lena had been repainted and renamed the Ana.

[63] The information in the Table was complied from a number of sources including governmental Media Reports, Press Releases, Member’s Reports to CCAMLR and interviews with Government Officers.

[64] Fisheries Legislation Amendment Act (No.1) 1999.

[65] Fisheries Management Act 1991 (as amended). Sections 106A-106H. Section 95 creates the general offence of engaging in commercial fishing within the Australian fishing zone without authorisations and section 99 creates the offence of using a foreign boat for recreational fishing.

[66] Bergensbanken ASA v The Ship Aliza Glacial, Federal Court of Australia. Unreported decision of

Justice Ryan, 20 March 1998.

[67] Bergensbanken ASA v The Ship Aliza Glacial [1998] 1642 FCA 4. Judgment dated 17 December 1998.

[68] Olbers Co.Ltd v Australian Fisheries Management Authority (No.4) with Corrigendum dated 15 April 2004 [2004] FCA 229.

[69] This order was given daily during the 15 day hot pursuit of the South Tomi. Personal communication with Mr John Davis, October 2001.

[70] Confirmed via written communication with Australian Fisheries Management Authority, 14 February 2002. The fisheries officer did name Fremantle on a number of occasions; however the one tape recording containing a general order was sufficient to cast doubt whether a specific order to go to Fremantle was even given.

[71] Minister for Fisheries, Forestry and Conservation, Australian calls on peak UN fisheries body to take action on illegal fishing’ AFFA03/26M, 26 February 2003. The Australian delegation stated “We are not just dealing with countries, but more and more with international criminal activity.” See, also, the Statement by Australian Fisheries Management Officer reported in The Advertiser, ‘More illicitly profitable than the drug trade- Demand for this delicacy translates into $1million for each ship load’ 23 August 2003, 38.

[72] For example, Perez, the Master of the Big Star had funds to appeal to the Western Australian Supreme Court and was successful in having the original sentence of $100,000 reduced to $24,000. Perez v R (1991) 21 WAR 470, 475, 476, 486 (Owen J). The owners of the Volga have run intermittent Federal Court action since March 2002 challenging the validity of the forfeiture of the vessel, above n. 70.

[73] After the arrest of the South Tomi, Australian enforcement officers located documents directing the vessel’s crew not to comply with orders from the pursing Australian fisheries patrol vessel. The directions came from Spain and were allegedly sourced from legal advice. Personal communication with Mr John Davis, 4 June 2001.

[74]Russia v Australia Case No 11. Judgement dated 23 December 2002. (The Volga case)

[75] Ibid, Transcript of 13 December 2002 (morning session).

[76] See list of appearances The Volga case and Olbers Co Ltd v Australia.

&#821[77]Customs closes in on poachers’ above n 58 and ‘Cold pursuit finally reels in Toothfish poachers’ above n 39.

[78]ABC Online, &#821 Alleged toothfish poachers freed on bail’ 11 March 2004.

(www.abc.net.au/perth/news/200403/s1064138.htm)

[79] Press Release, Minister for Fisheries, Forestry and Conservation, &#821Penalties given to Maya V crew’ 1 April 2004. DAFF04/052M.

[80]Information for this table was sourced from a vast array of resources including new articles both hard copy and on line, press releases and media announcement by Australian Government Departments. The Coalition of Legal Toothfish Operators (COLTO) (www.colto.org) maintains an excellent database link to new articles about illegal fishing. The criminal matters have been heard in the Perth Magistrates Court, Western Australian District Court, Court of Criminal Appeal and Western Australian Supreme Court.

[81] Article 21. The United Nations Agreement for the implementation of the provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks. (1995) 34 ILM 1542. In force from 11 December 2001.

[82] Text of CCAMLR System of inspection, Paragraph 1(c ) As adopted at CCAMLR-VII (1988) and amended at CCAMLR-XII (1993), CCAMLR-XV (199), CCAMLR-XVIII (1999).

[83] Agnew, above n 12, 3 and Table 2. See also Rosemary Rayfuse, ‘Enforcement of High Seas Fisheries Agreements: Observation and Inspection under the Convention on the Conservation of Antarctic Marine Living Resources’ (1998) 13(4) International Journal of Marine and Coastal Law 579, 590-591. Whilst it is not apparent why the number of inspections conducted has been low since the System’s inception in 1988/90, the Commission has, on more than one occasion, called upon members to make greater use of the System. CCAMLR-XII (1993), paragraph 6.5.

&#821[84]SAS hook fish pirates’, The Saturday Mercury, 14 April 2001, 3.

[85] Minister for Fisheries, Forestry and Conservation, Bringing back the Viarsa AFFA03/173MJ, 30 August 2003.

[86] Conversation with Mr John Davis, 4 June 2001. See also Four Corners, The Toothfish Pirates above n. 38.

&#821[87] Martin Excel, Exploration of Southern Ocean Fisheries: An Industry Perspective’ in S Bateman and Donald R Rothwell (eds), Southern Ocean Fishing- Policy Challenges for Australia (1998) Centre for Maritime Policy Paper No.7 103.111.

[88] Personal communication with Mr John Davis, 4 June 2001.

[89] Ibid. See also Report of Member’s Activities in the Convention Area 2000-2001, Australian Report CCAMLR XX October 2001, Section VI(d).]

[90] Personal communication with Mr John Davis, 4 June 2001.

[91] Statement by Minister for Fisheries, Forestry and Conservation, Recent Government Responses to Illegal Fishing in the Southern Ocean 7 June 2001.

[92] Minister for Fisheries, Forestry and Conservation, &#821 Pirates beware, Australia front and centre in the fight against illegal fishing’ DAFFO3/266M 2 December 2003.

[93] Minister for Fisheries, Forestry and Conservation and Minister for Foreign Affairs and Trade, Joint Statement, &#821 Maritime agreement sends a strong message to illegal fishing operators’ AFFA03/256MJ, 24 November 2003. See also ‘Canberra, Paris make up’, The Daily Telegraph, 25 November 2003, 16. Treaty between the Government of Australia and the Government of the French Republic on cooperation in the maritime areas adjacent to the French Southern and Antarctic Territories (TAAF), Heard Island and the McDonald Islands. [2003] ATNIF 20.

[94] Article 5

[95] Article 3(2) and (3)

[96] Annex III, Article 2.

[97] Senate Hansard, 10 December 2002, above n. 55.

[98] As evidenced in the arrests of the South Tomi and the Viarsa

[99] The ̵Coalition’ remains a loose association of States. Personal communication with Department of Foreign Affairs and Trade Legal Officers, 4 October 2001.

[100] AFMA News Vol 3 Issue 8 December 1999.

[101] Senate Estimates, Program 1.8 International Legal Interests – Foreign Affairs and Trade Committee 2 February 1998, 136.

[102]Ibid.

[103] Minister for Forestry and Conservation, &#821 Government to get tougher on Toothfish poachers’ AFFA02/128M, July 2002.

[104] Greenpeace Press Release: &#821 Greenpeace welcomes Mauritius’ Fisheries Minister’s statement that Mauritius will join the fight against pirate fishing’, 14 March 1999.

[105] Ibid

[106] ‘Greenpeace chases pirate fishers in waters off Australia’, 3 March 1999 and ‘13 day hot pursuit’, 14 March 1999.

[107] CCAMLR-XVI (1997) paragraph 5.3.

[108] Africa News Online, South Africa Toothfish laundering, 20 April 1998

[109] Personal communication with Mr John Davis, 4 June 2001.

[110] Member’s Report of activities within the Convention area 2001-2002 – Australia.

[111] Senate Hansard, 10 December 2002, above n.55. See, also, Report of Member’s Activities in the Convention Area 2001-2002 – Australia. The Arvisa 1 has also been named the Camouco and the Eternal.

[112] Ibid, Report of Member’s Activities in the Convention Area 2001-2002 –Australia, above n.805. The Australian research vessel, Aurora Australis sighted the two vessels within the Convention Area and on making contact was informed, falsely, that they were the Ghanian flagged Nova Tuna 1 and the Muaritanian flagged Kambott.

[113] Ibid

[114] Ibid. See, also, Parliamentary Secretary to the Minister for the Environment and Heritage, Media Release: &#821 Major blow to illegal fishing’ 11 June 2002.

[115] This incident was discussed at CCAMLR-XXI (2002). Annex 5, Report of standing Committee on Observation and Inspection, paragraph 5. Japan, a major market State also reported tat the cargo on board the Dorita was accepted in full accordance with the Catch Documentation requirements and was based on vessel monitoring data provided by the flag State.

[116] Media Release, Minister for Fisheries, Forestry and Conservation, ‘Mauritius vows to close its port to illegal fishers’ 27 January 2004 DAFF04/016M.

[117] CCAMLR Convention Measure 18/XVI (1997) renumbered to 10-07 (2002)

[118] CCAMLR-XXI (2002) paragraphs 8.35 and 8.38.

[119] Ibid, paragraph 8.40

[120] www.colto.org

[121] This information was verified by personal communications with two attendees at the CCAMLR 2003 meeting. However, both attendees requested that the matter be treated sensitively and thus I have not quoted the source of my information.

[122] For example Greenpeace maintains a pirate fishing vessel gallery on the Greenpeace website which lists known pirate or illegal fishing vessels together with details such as the current and former names, the current and formers flag States, sister ships, (as these vessels invariable operate in groups) owner if known and photographs of the vessels.

[123] For example see Antarctic and Southern Ocean Coalition Press Release: Patagonian Toothfish – Going to hell in a fishing basket 29 October 1999 and AAP, &#821 The Australian A.P. Reports on ISOFISH’ 31 March 1999.

[124] ISOFISH, Occasional Report No.1 above n 15.

[125] Ibid. See also, ABC News Online, 5 July 2002 and Four Corners, The Toothfish Pirates, above n 31. The Australian vessel reportedly herded the Eternal into the range of the French patrol vessel.

[126] Member’s Report of activities within the Convention Area 2002-2002 – Australia.