Science and Research
John Voumard, Inquiry Chair
© Commonwealth of Australia, 2000
ISBN 0642547157
8.1 The Inquiry identified defence lands and airports as significant 'areas' under the EPBC Act which are not administered by Environment Australia.
8.2 The Department of Defence stated in relation to its holdings that:
It is Defence's philosophy to facilitate access to the Defence estates, where this does not conflict with the achievement of defence objectives, to any bona fide individual or group wishing to conduct research or having any other genuine scientific interest in the environmental attributes of the area concerned. The mutual benefit from information exchange resulting from Defence's environmental management regimes and studies conducted by other entities assists in the continual review and improvement of Defence's environmental standards.
8.3 Defence stated that it would be prepared to enter into agreements with potential prospector organisations or individuals. Should cases arise where more than one agency or organisation is involved, Defence would agree to Environment Australia coordinating such agreements, provided Defence was consulted throughout the drafting process to ensure agreements with third parties covered:
8.4 The Department of Transport and Regional Services supported the development of a regime for regulating bioprospecting on Commonwealth land and leased Federal airports in particular. The Department informed the Inquiry that there is uncertainty over the ownership of biological resources on leased federal airports as the lease between the Commonwealth and the airport lessee company is silent on biological resources. The airport lessee company would also need to be consulted about gaining access to airport areas.
8.5 Legal advice to the Inquiry makes it clear that the Commonwealth owns the biological resources on Commonwealth-owned land in accordance with the principles of common law. As the lease is silent on biological resources it appears that ownership remains with the Commonwealth. The Inquiry is unaware of the terms of the lease, but believes it would be useful for the lease to be read as a whole to see if there are any provisions which might otherwise constrain the Commonwealth from dealing with these resources.
8.6 The views of both agencies support the Inquiry's conclusion that benefit-sharing arrangements are best negotiated by the agency concerned to ensure issues of security, safety and environmental management, together with any conflict with other activities, are dealt with by those who have responsibility for them.
8.7 The Great Barrier Reef Marine Park lies within the Great Barrier Reef World Heritage Area. It was established in 1975 by the Commonwealth Government with the passage of the Great Barrier Reef Marine Park Act 1975. The Park is administered by the Great Barrier Reef Marine Park Authority. Administration involves the cooperation and interaction of various Commonwealth and State authorities under Commonwealth and State legislative and administrative arrangements.
8.8 In relation to the proposed scheme under s301 and its current system for handling access requests, the Great Barrier Reef Marine Park Authority recommended that:
8.9 The Inquiry met with Colin Trinder, Director, Ministerial and Parliamentary Liaison, Canberra and Evelyn Scott, Chair of the Commission for Aboriginal Reconciliation and member of the Great Barrier Reef Park Management Authority, but lack of time and logistic problems meant that further meetings with key personnel to explore all issues in adequate detail could not be arranged in the Inquiry's timeframe. Nevertheless, I agree with the Great Barrier Reef Marine Park Authority's comments, particularly the need for a complementary system. Accordingly, the Inquiry makes the following recommendation.
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8.10 Similar issues arise with regard to the Antarctic. In material provided to the Inquiry, Environment Australia's Australian Antarctic Division commented that it 'supports the development of a scheme to control access to these resources and derive a benefit to the Commonwealth'.
8.11 Issues which would need to be taken into account include Australia's obligations under the Antarctic Treaty and the need for the proposed scheme to 'acknowledge the current legislation applying to the Antarctic which require permits and environmental impact assessments. This will also ensure that, in cases where international obligations arise, they will be met'.
8.12 Before considering this recommendation, the Inquiry considered the special status and legislative framework applying to Australia's areas of the Antarctic and Sub-Antarctic.
8.13 This area consists of the Australian Antarctic Territory, the Territory of Heard Island and McDonald Islands, the scientific station on Macquarie Island (administered by Tasmania) and various maritime zones in the Southern Ocean. The Australian Antarctic Division administers all these areas (except Macquarie Island) and it also has a number of ex situ collections of biological specimens, largely taken from these areas.
8.14 The legal regime for the Australian Antarctic Territory is provided for under the Australian Antarctic Territory Act 1995. This Act provides for the following laws to apply:
8.15 The regime for the Territory of Heard Island and McDonald Islands is provided for under the Heard Island and McDonald Islands Act 1953 and is the same as outlined above.
8.16 Macquarie Island is part of the State of Tasmania. However, the Commonwealth operates a scientific research station on the island.
8.17 The area south of 60²S is subject to the Antarctic Treaty and the Australian Antarctic Territory is in this area. The Convention on the Conservation of Antarctic Marine Living Resources applies to the area south of the Convergence which, in places, extends north of 60²S and includes the Territory of Heard Island and McDonald Islands. Both the Territory of Heard Island and McDonald Islands and Macquarie Island are world heritage properties.
8.18 Commonwealth laws made expressly for the Australian Antarctic Territory and the Territory of Heard Island and McDonald Islands focus largely on protecting the environment and, in the case of the Australian Antarctic Territory, many flow from international obligations arising from Australia's participation in the Antarctic Treaty system. Consequently, Commonwealth laws enacted specifically for the Australian Antarctic Territory are generally to enable Australia to ratify international agreements.
8.19 The two most relevant pieces of legislation, from the perspective of accessing biological resources in the Antarctic Treaty area, are the Antarctic Treaty (Environment Protection) Act 1980 and the Antarctic Marine Living Resources Conservation Act 1981. Both Acts, and regulations made under them, implement international obligations.
8.20 Common to both Acts is a requirement to have a permit to undertake various scientific activities, including collecting flora and fauna. Commercial harvesting, such as fishing, requires a permit under the Antarctic Marine Living Resources Conservation Act 1981.
8.21 In addition, most activities also require an environmental impact assessment to be undertaken.
8.22 In the case of the Territory of Heard Island and McDonald Islands, the Environment Protection and Management Ordinance 1987 regulates the territory, which includes the territorial sea. A permit is required for most activities, including collecting fauna and flora.
8.23 Mining and commercial fishing are prohibited within the Territory.
8.24 In 1986 the Government established the Australian Science Advisory Committee Grants Scheme to encourage scientists, not employed by government organisations and/or funded primarily by research institutions, to undertake Antarctic research. The Australian Antarctic Division provides secretariat support for the Committee and administers the grants scheme on behalf of the government.
8.25 The primary means of access to the Australian Antarctic Territory and the Territory of Heard Island and McDonald Islands for collecting biological samples is through the Grants Scheme. Where permits are granted for collecting biological resource samples, those samples are to be used for research purposes only. Ownership of biological resource samples collected through this Scheme is retained by the Commonwealth, although custody of some collections is with non-Commonwealth institutions.
8.26 The Inquiry understands that the Committee's form for the next round of applications will include specific reference to commercialisation resulting from collection of biological resource samples for scientific purposes. The Inquiry has been advised, however, that there is no provision, through the Grants Scheme, for bioprospecting.
8.27 The Australian Antarctic Data Centre maintains a database on biological resource samples and where they reside.
8.28 The Inquiry has been advised there are a number of projects currently being undertaken in the Antarctic which involve collection, development and commercialisation of biological resources.
8.29 The Australian Antarctic Division obtained legal advice in 1994 to ensure such activities do not involve any conflict with Australia's international obligations. The Inquiry has been provided with this advice.
8.30 The advice addresses the Antarctic Treaty obligation requiring scientific information to be freely exchanged (Article 3) and how this interacts with commercial obligations, such as commercial-in-confidence requirements in developing products from biological resources and the delayed release of scientific information.
8.31 The advice is, however, particularly important in so far as it makes it clear that commercial activities can be undertaken. This includes the commercialisation of scientific research undertaken on biological resources from within the Commonwealth areas subject to the Antarctic Treaty and the Convention on the Conservation of Antarctic Marine Living Resources.
8.32 The Inquiry has found the advice the Australian Antarctic Division provided a useful adjunct to the broader legal advice specifically obtained to help the Inquiry.
8.33 The Australian Antarctic Division made suggestions to the Inquiry which I have summarised as follows:
8.34 I have considered these points and the overall special status of Commonwealth Antarctic areas together with the legal advice provided to me and I agree with each suggestion.
8.35 In considering Australia's legislative and administrative arrangements for managing Commonwealth Antarctic areas I have also borne in mind the relationship of regulations to be made under s301 of the EPBC Act and existing Commonwealth law and the Inquiry's terms of reference to, in part, recommend a scheme which is streamlined and provides certainty to Industry.
8.36 From this it is clear that for there to be consistency, certainty and ease of administration, there must be harmonisation between the provisions of the scheme and the Antarctic legislation currently administered by the Australian Antarctic Division.
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8.37 The status of Norfolk Island is unique among Australia's Territories: it is self-governing with a mixture of responsibilities which include local, state and some Commonwealth government matters, with the Commonwealth retaining rights in relation to certain matters.
8.38 It is small (3529 hectares), distant (1700 kilometres northeast from Sydney) and has 1350 permanent residents.
8.39 Biologically the island has more in common with New Caledonia and New Zealand than with mainland Australia. A significant degree of endemism exists in the waters around the island. For the purposes of the EPBC Act some 51.8 per cent of the island is a Commonwealth area. These lands include roads, verges, public reserves, national parks and leased land. In such a small area, with Crown lands (Commonwealth areas) scattered throughout it, action taken in regard to Commonwealth areas is likely to impact on the remainder of the island.
8.40 The Norfolk Island Government has stated it is concerned that:
... any regime to control access to biological resources in and around Norfolk Island ensures:
8.41 The Government has argued that any potentially valuable biological resource found in a Commonwealth area is just as likely to be present in an adjacent non-Commonwealth area or in a leased area. Accordingly, in its view it would be inequitable and inappropriate for access to that resource and the distribution of benefits from it to be solely or largely a matter for the Commonwealth. This is particularly so as, in its view, Commonwealth agencies as land owners are custodians of that land in the interests of the island and its people.
8.42 I find some force to these arguments and see some limited parallels with the joint management and land ownership arrangements at Kakadu. The Norfolk Island Government also points out that:
8.43 In these circumstances it suggests that control of access to biological resources on and around the island should be primarily the responsibility of the Government of Norfolk Island in consultation with the Commonwealth. It is also acknowledged that the island has limited technical and legal resources.
8.44 In my view, a fair and equitable approach would be for any application for access to the terrestrial non-exotic biological resources of the island to be on the basis of a jointly negotiated benefit-sharing agreement covering the land on the island over which the Commonwealth and Norfolk Island Governments exercise ownership or similar control.
8.45 Signatories to this agreement would be both governments and the proponent, with any monetary benefits payable to the resource owners divided equally. Non-monetary benefits would be as negotiated. In the case of the Commonwealth, the contract should specify that any amount not payable to the Norfolk Island Government should be paid into the Trust Fund of the Director of National Parks for the conservation and protection of biodiversity on the island. As with other applications for access to Commonwealth areas, an access permit would be required.
8.46 To facilitate a joint management approach, regulations established under s301 would need to be drafted to allow the Minister to approve the grant of a permit in these circumstances.
8.47 As the Department of the Environment and Heritage is responsible for the management of the Norfolk Island National Park and Botanic Gardens, it would be appropriate for it to lead the negotiations on behalf of the Commonwealth and the Department of Transport and Regional Services and to represent the interests of any other Commonwealth agencies with interests in land on the island.
8.48 In relation to the island's marine environment the Norfolk Island Government has drawn my attention to the fact that all the sea around the island to low water, is under Commonwealth jurisdiction and will be a Commonwealth 'marine area' under the EPBC Act.
8.49 It has further advised that the Commonwealth (through the Australian Fisheries Management Authority) and the Norfolk Island Government are moving towards transferring management responsibility for the Norfolk Island Fishery to Norfolk Island. The Norfolk Island community has exclusive rights to this fishery, which is defined by a box around the island providing an area of approximately 67 x 40 nautical miles.30
8.50 In light of this, the Norfolk Island Government has recommended to the Inquiry that it would be consistent for Norfolk Island to be responsible for controlling access to marine biological resources within that same geographical area and for the island to be the recipient of any benefits.
8.51 The Department of Transport and Regional Services has also advised the Inquiry about these proposed arrangements and provided additional detail. It confirmed the transfer would give Norfolk Island as much autonomy as possible in managing the fishery. It would also enable management of a 'recreational fishery' in which some sale of fish takes place. This autonomy would not, however, extend to control over foreign fishing vessels or certain tuna or tuna like species.
8.52 Having considered these arguments, I have concluded that, in principle, the benefits flowing from access to the marine biological resources around the island ought to flow to the island and that it would be sensible for the area concerned to be consistent with the area defined as the existing Norfolk Island Fishery. In my view the Government of Norfolk Island should therefore be entitled to enter into a benefit-sharing agreement in respect of access to that resource.
8.53 Again, the regulations may need to be drafted to enable such an agreement to be made. The safeguards inherent in the subsequent consideration by the Minister of an access permit would also apply and would include the Minister's satisfaction that prior informed consent had been obtained from the Norfolk Island Government.
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8.54 The Inquiry Secretariat has discussed the substance of these recommendations in broad terms with officials of the Norfolk Island Government and believes they would be supported.
8.55 During the Inquiry I sought to ensure that State and Territory governments had the opportunity to contribute to developing a nationally consistent approach to access to biological resources. I was particularly concerned to understand their views and, as far as possible, to take them into account when drawing up my recommendations. An important goal was to design an access scheme for Commonwealth areas which would be, as far as possible, compatible with the existing and future State and Territory access schemes.
8.56 I discovered that not all States were engaged with the issue. The Northern Territory advised that the issue was not a priority and that it would not make a submission.31 New South Wales advised that it had not developed a policy position and accordingly that it would be premature to make a submission. Nevertheless, Queensland, South Australia, Victoria, the ACT, Western Australia, Tasmania and Norfolk Island made submissions and/or participated in discussions. These were of great value and I thank those involved for their thoughtful and frank contributions.
8.57 The views of the States, on the value of a nationally consistent approach and the work of the Inquiry, are briefly as follows.
8.58 Queensland has advised that it proposes to develop a State-based bioaccess policy over the next 12 months. State officials emphasised the importance of a consistent policy at State and Commonwealth levels and the value to Australia of a consistent policy across all jurisdictions. Queensland emphasised its willingness to achieve such a goal and echoed sentiments made to the Inquiry by a number of States that, to date, progress under existing mechanisms has been frustratingly slow.
8.59 This frustration was made all the more evident given the Queensland Government's success in creating the conditions under which the biotechnology industry in that State is growing. Queensland also drew to my attention the fact that over recent years considerable biodiscovery work has been undertaken through an effective partnership between the Queensland Herbarium and Museum, AstraZeneca and Griffith University and that a benefit-sharing arrangement between the Queensland Government and the Australian Institute of Marine Science is being finalised.
8.60 Queensland's concern about the slowness in developing a nationally consistent policy is in line with sentiments various representatives of industry, science and governments expressed to me.
8.61 South Australia has been giving considerable thought to the issue and has prepared a comprehensive Discussion Paper on the issue of access to its biological resources. The paper, prepared by a working group drawn from a number of government agencies, sets out the issues and identifies options. The paper is currently with the South Australian Minister for Environment and Heritage for consideration.
8.62 The Inquiry met with members of this group and has considered an informal version of the discussion paper. From this it is apparent that South Australia's direction of thought closely parallels that of the Inquiry. There is a common understanding of the basic issues and principles relating to benefit sharing, the Convention on Biological Diversity, the treatment of public and private lands, pressures on ex situ collections, the value of a single point of contact, approaches to benefit sharing in relation to Indigenous-owned lands and use of Indigenous knowledge. From this understanding, the South Australian working group has developed a range of possible options -- some of which share key elements with the access regime recommended by this Inquiry.
8.63 In Victoria's view, 'any national approach to access to biological resources should be developed in partnership with States and Territories and should include appropriate direct consultation between the Commonwealth, States and Territories rather than relying on submissions to a Commonwealth Inquiry'.
8.64 Victoria's submission went on to say that, 'At this stage, Victorian agencies have not developed or put any proposals to government regarding the conferring of ownership of biological resources, including those on private land. As such, Victorian agencies are cautious about supporting any uniform national approach without considerable further consultation with the Commonwealth, States and Territories governments.'
8.65 Since receiving Victoria's submission, I have received a copy of the Victorian Parliament's Environment and Natural Resources Committee Report of its Inquiry into Utilisation of Victorian Native Flora and Fauna. The report was tabled on 2 June 2000 and seeks to inform thinking on a variety of issues, including that of access to genetic resources in Victoria. It recommends:
11.1 That national strategies be developed to ensure a consistent approach to the granting of access rights to the genetic material of Australian native species, and to this end, the Victorian Government actively pursue a common approach through the Australian New Zealand Conservation Council and other appropriate joint ministerial councils.
11.2 That the Victorian Government develop bilateral/multilateral agreements relating to the use of the States' natural flora and fauna resources, in accordance with national strategies.
11.3 That the Victorian Government support and pursue consistency of codes of practice and regulations in the relevant national forums and explore mutual accreditation of regulatory controls of other states.
8.66 The report, at page 386, argues the need for a national approach but one which takes into account the benefits of Australia's relatively cost-free access to exotic species and the controlled sharing in the benefits of the genetic resources of the country which could be gained by use of plant breeders' rights, royalty payments and contractual arrangements.
8.67 The Victorian Minister for Environment and Conservation has six months to respond to the Committee's recommendations.
8.68 The Western Australian Government sees the Inquiry as having potentially significant implications for that State.
8.69 In its view, access arrangements for Commonwealth lands in Western Australia and waters under Commonwealth jurisdiction beyond State waters should be compatible with the Western Australian regime. Any Commonwealth protocol for bioprospecting accordingly needs to be developed in close consultation with the States and Territories.
8.70 Western Australia has bioprospecting guidelines for vascular plants and is developing guidelines for agencies to deal with requests for Western Australian biota.
8.71 In Western Australia's view, bioprospecting for material in Commonwealth areas needs to be developed in close consultation with relevant State organisations. State institutions need to be involved in any exploitation of biota and have access to basic information, particularly in museums, herbaria, and conservation and fisheries agencies.
8.72 Western Australia suggested the Commonwealth State Working Group as an appropriate avenue for further consultations and expressed some concern about the lack of a State representative on the Inquiry Reference Group.
8.73 The Tasmanian Government advised that while it does not have a specific policy on access to biological resources, it recognises the issue as one of increasing interest and importance to the State and made a number of important points. In summary these were that:
8.74 The Tasmanian Government concluded its submission by urging the formalising of nationally agreed principles for managing access to and use of Australia's biological and genetic resources for biodiscovery purposes and suggested this could be done through an intergovernmental agreement
8.75 The ACT suggested that the Commonwealth State Working Group principles provide a basis for developing related Commonwealth policy.
8.76 Norfolk Island provided a detailed submission which reflects its unique relationship with the Commonwealth (see discussion at paragraphs 8.37 to 8.54 above). The Government of Norfolk Island agrees with the principle of a nationally consistent approach in which broad principles for managing access are developed, but which recognises that individual jurisdictions will determine their own access management regimes, as advocated by the Commonwealth State Working Group on access to biological resources.32
8.77 It is clear, therefore, that most States and Territories support a nationally consistent approach. Some support has been expressed for the Commonwealth State Working Group, although this is tempered by concern about a continuing lack of progress.
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8.78 Australia's marine environment, in which the Commonwealth exercises power, consists of four zones. These are the:
8.79 Within the Territorial Sea the strip out to three nautical miles is referred to as the Coastal Sea. Title to the seabed and power to legislate within the Coastal Sea was vested in the adjacent State or Northern Territory by the Coastal Waters (State Powers) Act, Coastal Waters (Northern Territory Powers) Act, Coastal Waters (State Title) Act, and the Coastal Waters (Northern Territory Title) Act. This means each State owns the seabed and is able to exercise authority over the Coastal Sea.
8.80 The Australian Fishing Zone covers, with some exceptions, the waters from three nautical miles out to the outer limits of the exclusive economic zone.
8.81 Section 525(1) of the EPBC Act includes, in the definition of 'Commonwealth areas', the:
8.82 Section 525(3) of the EPBC Act, however, has the effect of excluding from the definition of 'Commonwealth areas' waters within the Territorial Sea to a distance of three nautical miles outwards from the Territorial Sea Baseline and the waters on the landward side of that Territorial Sea, that is, the coastal sea of the States and Territories.
8.83 So far as marine areas are concerned, therefore, regulations under s301 of the EPBC Act deal with access to biological resources in the area between three nautical miles from the Territorial Sea Baseline to the outer limits of Australia's exclusive economic zone or its continental shelf (whichever is further).
8.84 The Inquiry has identified factors affecting application of any Commonwealth access scheme to these Commonwealth waters. The factor with the greatest potential impact is the bilateral arrangements negotiated from time to time between the Commonwealth and individual States and Territories for managing fisheries under the Fisheries Management Act 1991. Under some of these arrangements the Commonwealth has passed control of large parts of the marine biota in Commonwealth areas to the States and Territories. While the purpose of the legislative arrangements is management of fisheries, the definitions used are sufficiently extensive as to apply to the marine biota generally.
8.85 This potentially affects the ability of an access scheme established under s301 of the EPBC Act to apply uniformly across Commonwealth waters. It raises the likelihood that any bioprospector seeking access to Commonwealth waters would have to negotiate access and benefit-sharing agreements with a variety of Commonwealth and State bodies, depending on where access is sought, the nature of the marine biota to be sampled and the methods to be employed.
8.86 In the absence of a nationally consistent approach across jurisdictions, such arrangements would introduce high levels of complexity and associated transaction costs to industry.
8.87 In addition, such complexity has the potential to adversely affect the ability of Commonwealth statutory bodies, such as the CSIRO and the Australian Institute of Marine Science, to conduct activities in Commonwealth waters. I have discussed these problems below and made recommendations to resolve or reduce the problems.
8.88 Without such action, the unintended consequence of earlier Commonwealth legislation would be to impede establishment and operation of a streamlined access scheme under the EPBC Act.
8.89 Only four submissions adverted to the situation. The Director of Fisheries of the Northern Territory wrote that:
In 1995 the Commonwealth and Northern Territory entered into an arrangement under the Offshore Constitutional Settlement provisions of the respective fisheries legislation. The effect of this agreement is that the fishing for all bony and cartilaginous fish, all aquatic invertebrates, all marine algae, and all seagrasses, with exception of some tuna species and prawns, out to the Australian Fishing Zone boundary are now under Northern Territory jurisdiction. Fishing includes the taking of aquatic life for sale, research and related purposes.
8.90 Agriculture Fisheries and Forestry -- Australia stated that:
Commonwealth legislation in these matters varies in its impact on control over and ownership of biological resources. For example: ...
8.91 The Australian Institute of Marine Science submission outlined the nature of the Offshore Constitutional Settlement, the Fisheries Management Act, and arrangements under that Act and went on to say:
If the current general arrangements persist, there is complete overlap and potential conflict with any regulations over Commonwealth marine areas that may be attempted under the EPBC Act.
8.92 Attachment 2 to the Institute's submission was the text of a fisheries arrangement between Western Australia and the Commonwealth, conferring fisheries management rights on Western Australia of a similarly general nature to those referred to in the Northern Territory.
8.93 In light of this, the Inquiry sought legal advice. I received this advice in the second week of June 2000. This was after the conclusion of the Inquiry's public hearings and consultations and it has not been possible therefore to discuss the issues with relevant parties.
8.94 The advice confirms that the situation outlined by the Northern Territory is correct and also provides guidance on the relationship between the EPBC Act and the Fisheries Management Act 1991.
8.95 The Inquiry has established that, to varying extents, similar arrangements exist with other States, in particular Victoria, Tasmania, Queensland, South Australia and Western Australia.
8.96 The Inquiry considered the potential implications of this position for the operation of a Commonwealth scheme to regulate access to biological resources in the waters of Commonwealth areas as defined in the EPBC Act. Before discussing those implications, however, it is necessary to consider the relationship between the two Acts.
8.97 The Fisheries Management Act is part of legislation which implements the 1979 Offshore Constitutional Settlement. This Settlement is an inter-governmental agreement concluded at the Premiers' Conference in 1979 dealing with a range of offshore issues. The relevant offshore issue here is the management of fisheries. The description of the agreed arrangements between the Commonwealth and the States includes the following:
The legislation [to be passed by the Commonwealth Parliament, based on referred powers under section 51(38) of the Constitution] will also give each State powers outside the territorial sea in respect of port-type facilities, underground mining extending from land within a State, and fisheries. The power with respect to fisheries will apply to fisheries that, under an arrangement to which the Commonwealth is a party, are to be managed in accordance with the laws of the State concerned, under the offshore fisheries scheme described below.32
8.98 The section of the arrangements headed 'Offshore fisheries' includes the following:
The new arrangements will enable a single fishery to be regulated by the one set of laws, Commonwealth or State, as agreed between the Commonwealth and the State or States concerned, and they will provide for the establishment of Fisheries Joint Authorities.
By agreement of the Governments concerned, a particular fishery may be assigned to the management of one of these Joint Authorities. Alternatively, it may be assigned to the administration of the Commonwealth alone or a State alone, if that is agreed.
8.99 One of the Commonwealth Acts giving effect to the Offshore Constitutional Settlement, the Coastal Waters (State Powers) Act 1980, empowers States to make laws applying to fisheries in Commonwealth waters in certain circumstances. Section 5 provides:
The legislative powers exercisable from time to time under the Constitution of each State extend to the making of:
(c) laws of the State with respect to fisheries in Australian waters beyond the outer limits of the [three nautical mile] coastal waters of the State, being laws applying to or in relation to those fisheries only to the extent to which those fisheries are, under an arrangement to which the Commonwealth and the State are parties, to be managed in accordance with the laws of the State.34
8.100 The Fisheries Management Act35 allows the Commonwealth to make an arrangement with a State (or the Northern Territory) that a fishery is to be managed in accordance with the law of the Commonwealth or in accordance with the law of a State. An arrangement under either of these provisions is made by instrument approved by the Governor-General and the Governor of the State concerned, and published in the Gazette.36 A similar procedure is followed to terminate such an arrangement.37
8.101 Under the Fisheries Management Act arrangements do not set out the regulatory requirements applying to fishing in a particular fishery. Rather, the arrangement defines the fishery concerned, and the State or Commonwealth legislation that applies to that fishery which determines what may or may not be done in connection with that fishery.
8.102 Arrangements under Part 5 of the Fisheries Management Act have been entered into with all the States and the Northern Territory. Some are specific to a single type of fish or to groups of fish. Arrangements include situations where Commonwealth law applies, State law applies or management is by Joint Management Authority. Some arrangements are more general in their application.
8.103 The Fisheries Management Act prohibits the taking of fish otherwise than in accordance with a statutory fishing right, licence or permit granted under the Act. Its definitions of fish, fishery and fishing is so wide as to encompass almost all marine biota with some exceptions, including marine reptiles and mammals.
8.104 Of the five 1995 arrangements between the Commonwealth and the Northern Territory, one is general in character. This is the Arrangement between the Commonwealth and Northern Territory in relation to the Fishery for Fish and other Aquatic Life Resources in Waters Relevant to the Northern Territory. This arrangement applies to the Northern Territory coastal waters and the relevant waters of the Australian Fishing Zone. It provides:
The Commonwealth and Territory hereby arrange that the fishery to which this Arrangement applies is to be managed in accordance with the law of the Territory being the fishery, for any purpose other than recreation, in waters relevant to the Northern Territory ... for all species of fish and aquatic life of the Class Osteichthyes (bony fish) and Class Chondrichthyes (cartilaginous fish), all species of aquatic invertebrates, all marine algae of the Divisions Clorophyta (green algae), Rodophyta (red algae) and Phaeophyta (brown algae) and all seagrasses of the Families Hydrocharitaceae, Posidoniaceae, Zosteraceae and Cymodoceaceae except for [listed classes of fish, including a number of species of tuna and tuna-like fish, billfish, fish taken as bait by a person for his or her own use in accordance with a fishing concession from the Australian Fisheries Management Authority, decapod crustacea of certain families except in certain circumstances, fish of the Class Osteichthyes and the Class Chondrichthyes taken in the area of the fishery in accordance with a licence from the Northern Territory Fisheries Joint Authority].
8.105 These arrangements do not vest in the Northern Territory Government title to the water column or the seabed, or to any associated resources, but have the effect that fisheries named are to be managed in accordance with the law of the Northern Territory. Furthermore such law is given effect by Commonwealth law.
8.106 This briefly explains how the Northern Territory is able to apply its fisheries law to Commonwealth marine areas adjacent to it and how similar broad arrangements among the Commonwealth and States can produce the same result.
8.107 The effect of these arrangements appears to be that any scheme of regulations under s301 of the EPBC Act runs the risk of conflicting with the application of State or Territory law in areas where they exist.
8.108 Legal advice states that, in the event of any inconsistency with either the provisions of State or Territory Law or of the Fisheries Management Act, regulations made under s301 of the EPBC Act cannot prevail. This is because regulations under s301 are Commonwealth delegated legislation and therefore cannot impliedly repeal an earlier Commonwealth Act where there is no specific provision in an Act to this effect and where State or Territory law has effect by virtue of a Commonwealth Act. The advice indicates there is no such provision in any Act, including the EPBC Act, authorising regulations under s301 of the EPBC Act to repeal the Fisheries Management Act or to repeal the Coastal Waters (State Powers) Act or the Coastal Waters (Northern Territory Powers) Act (the authority for the extension of State powers to Commonwealth waters).
8.109 There is an exception to the general position I have just set out which relates to Commonwealth Marine Protected Areas. Legal advice is that the accepted position in government has been that the National Parks and Wildlife Conservation Act and the Fisheries Management Act operate concurrently in these areas but, to the extent of any inconsistency, the National Parks and Wildlife Conservation Act prevails. This is expected to continue under the EPBC Act but further legal advice will be obtained to confirm this.
8.110 The primacy of Commonwealth reserve legislation/regulations stems from the fact that they contain provisions which amend other Commonwealth legislation. In the EPBC Act this intention is illustrated at s354, s356, s357 and s362. Thus it would be reasonable to conclude that no Fisheries Management Act arrangement could extend to any Commonwealth reserve where it would conflict with the provisions of the EPBC Act and related regulations.
8.111 In light of this, the Inquiry considered the extent to which there might be inconsistency between the EPBC Act and the Fisheries Management Act and State law. The legal advice in relation to this point focused first on operations under the direct application of the Fisheries Management Act and then on operations conducted under State law by way of an arrangement entered into under the Fisheries Management Act.
8.112 Advice suggested that there was no necessary inconsistency but a regulation under s301 was likely be inconsistent with the Fisheries Management Act if it limited the right to fish in accordance with an authority granted under that Act. In addition, it suggested that it might be arguable that the Fisheries Management Act is intended to provide a comprehensive scheme for regulating fishing in fisheries to which the Act applies, and that it therefore 'covers the field'. It also suggests that it could be argued, from s33 and paragraph 17(6)(i) of the Fisheries Management Act, that the Act is intended to cover the field with regard to fishing for scientific research.
8.113 The advice went on to suggest that, on the other hand, regulations under s301 of the EPBC Act that relate to matters outside the scope of the Fisheries Management Act would not be inconsistent with that Act. It took the view that, in general terms, the Fisheries Management Act is concerned with fishing, that is, searching for and taking fish, and engaging in activities with a view to finding and taking fish, as well as processing, carrying and trans-shipping fish.
8.114 Thus the Fisheries Management Act is not concerned with the end-use of 'fish' that have been taken, nor the accrual of benefits as a result of that use. This stands in contrast to any regulations under s301 of the EPBC Act which would be concerned with end use, as they would relate to:
8.115 This last difference, that is the deriving of benefits and the sharing of those benefits, is particularly significant as it represents one half of the recommended regulatory scheme.
8.116 In considering the issue of potential overlap between the Fisheries Management Act and the operation of any scheme introduced under s301 of the EPBC Act, the Inquiry's view is that the two pieces of legislation are intended to fulfil separate purposes: one exists to regulate the sustainable management of Australia fisheries; while the other is aimed at enabling bioprospecting and sharing the resulting benefits. I do not see any inherent conflict between these purposes. In coming to this view I have noted the objectives of the Fisheries Management Act at s3 which states:
8.117 With this in mind, it is essential that the administration of the two Acts be harmonised to ensure each can be administered concurrently with the other. This is reflected in my recommendation.
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8.118 I have also considered the implications of the various Commonwealth/State fisheries management arrangements. If operation of some of these arrangements is understood to mean the relevant State authority has responsibility to determine and regulate access to biological resources in the terms set out in this report, the practical effect may be to exclude the operation of regulations under s301 of the EPBC Act from the relevant Commonwealth waters.
8.119 Equally, it may be that some State authorities see their role under such arrangements as focused on the sustainable management of fisheries in its broader sense. They may not see management and regulation of bioprospecting as their role if this activity has no effect on the sustainable use of the resource. In such cases, s301 regulations may be framed to ensure no conflict arises.
8.120 It is not the Inquiry's intention to disturb the operation of the Offshore Constitutional Settlement as it relates to fisheries management. Rather, the Inquiry is looking at ways to achieve concurrent fisheries management and regulation of access to biological resources. To this end, there is a need for discussions between the Commonwealth and the States to obtain their views on regulating biological resources in light of the proposed Commonwealth scheme and development of access policy in each State.
8.121 The need for discussions was touched on in the Victorian Government's submission. In relation to the Offshore Constitutional Settlement, the submission said that the Inquiry should be aware of settlement arrangements between the States and the Commonwealth for harvesting wild fisheries resources and that 'any proposed recommendations by the Inquiry for changes to the current Settlement arrangements should be discussed with the States and Territories'.
8.122 While supporting such discussions, I consider they should be conducted as part of a broader discussion about development of a nationally consistent approach by the Commonwealth and the States and Territories to regulate access to biological resources.
8.123 Indeed, the current marine situation strongly illustrates the value of a broader approach. At present, if biotic material straddles the three-mile limit, access is determined by the adjacent State or perhaps the Commonwealth, depending on which side of the boundary it is found and on which set of legal instruments applies within each jurisdiction. If the material floats along the coast it may straddle the boundary between States or Territories with similar effect. The material is not affected by human boundaries but the rules under which it is accessed and under which benefit sharing is negotiated are. In such circumstances it may be equitable for benefits derived from accessing material in the water column to be shared with an adjoining jurisdiction. These facts support the need for a consistent and cooperative approach across jurisdictions.
8.124 This latter need is supported by the Western Australian Government which makes the point that Commonwealth lands and waters should not be considered in isolation from the ecosystems and bioregions in which they are located and which will almost inevitably involve surrounding or adjacent areas under State jurisdiction. The existence of Commonwealth marine reserves adjacent to many of the States adds weight to this point.
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8.125 The CSIRO has helped the Inquiry through its active involvement in the process and with its comprehensive submission. This has given me a clearer picture of the complex issues facing holders of ex situ collections. I have also been assisted in my understanding by the contributions from the Chair of the Council of Heads of Australian Herbaria and the Australian National Botanic Gardens.
8.126 A common concern of the holders of ex situ collections, and one raised by a number of submissions, is doubts about the ownership of elements of ex situ collections. Legal advice was sought in relation to this and has been discussed at Chapter 4. There is no single answer and the advice suggested that each collection would have to address this issue having regard to a range of factors, including the ownership, if any, of the material when it was in situ and the circumstances under which the material passed into the possession of the ex situ holder, including the terms and conditions of any relevant agreement, or any relevant legislation (including that governing the establishment and operation of the collection itself).
8.127 The CSIRO is particularly concerned with this issue as it houses major national collections, including the Australian National Herbarium, the Australian National Insect Collection and the Australian National Wildlife Collection. The CSIRO's view was:
to have fair and proper benefit sharing, it is helpful to know who owns the title to a particular resource and who has the legitimate right to control the access to it.
8.128 In these circumstances, and given the cost and potential difficulty of the task, it may be worthwhile for the heads of Commonwealth ex situ collections to collaborate to formulate a single request for comprehensive legal advice which is applicable to the circumstances of each collection but which may be able to identify similar circumstances and common issues. This reduces costs and maintains some consistency of legal advice across common issues.
8.129 The CSIRO advanced a proposal to include, in the s301 regulations, a provision which would enable the biological resources, which were the subject of the contract, to be deemed the property of the holder of the collection, for the purposes of both the approval of an access permit and the making of a benefit-sharing contract. This provision would only apply to elements of the collection about which there was insufficient evidence to establish its origins.
8.130 Legal advice suggests, however, that this is not possible under the s301 regulations. This does not mean that some form of legislative amendment might not be possible to vest ownership of the elements of the collection in the Commonwealth where there was no evidence of its origins.
8.131 For the Australian Institute of Marine Science the situation concerning ownership is much clearer. The Institute's collections differ from CSIRO's, because it has done all its own collecting. It does not receive material from others who 'lodge' or 'deposit' into its collection. Thus, there are no provenance questions, and applying the common law position, the Institute considers itself the owner of material in its collection, although there may be conditions of use of the material in access permits or benefit-sharing contracts to which it is party which affect its ability to deal with that material.
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8.132 The suggestion has been made that the ownership issue could be resolved if the Commonwealth were to assert ownership or vest ownership of all biological resources in its possession. This suggestion has been made informally and formally, for example in Recommendation 1 of the CSIRO submission. Putting aside legal issues over the Commonwealth's capacity to take this step in all areas, the Inquiry believes a decision that Commonwealth has ownership (and therefore complete control over uses and conditions) would be unnecessarily inflammatory and could result in controversy over an action which might well be seen as high-handed and result in compensation claims.
8.133 Additionally, it might deter potential providers of material to national collections if they believed providing the material would result in a loss of rights, ie no scope for negotiation over uses and conditions. Indeed, would it mean that in future cases, material obtained by the Commonwealth (by legal means) automatically becomes the property of the Commonwealth, with no room for negotiations, eg for both parties to have rights in the material.
8.134 A second issue raised was whether ex situ collections ought to be covered by the access scheme. Agriculture, Fisheries and Forestry--Australia recommended against coverage of ex situ collections, in part on the basis that negotiations on the Food and Agricultural Organization International Undertaking on Plant Genetic Resources were as yet unresolved.
8.135 Other submissions have raised the issue of how exotic material, held in ex situ collections, might be covered. I have noted these points but am conscious that ex situ collections, especially living collections, may be attractive, from a biodiscovery point of view, because their representative nature makes them a potentially attractive alternative to in situ collecting.
8.136 At a time of constraints on public expenditure, overtures to holders of such collections may be difficult to resist. Indeed, consideration of any such offer may be responsible and prudent. There is a need, therefore, for guidelines to ensure benefit sharing and biodiversity conservation.
8.137 The Chair of the Council of Heads of Australian Herbaria put the position succinctly:
With the advent of new and cheap technology enabling the extraction of DNA and other substances from dead herbarium specimens as well as from live plants, an increase may be expected in the frequency of approaches to herbaria for commercial sampling.
8.138 The ability of bioprospectors to sample ex situ collections of native species instead of surveying in situ resources means that, to ensure the integrity of any approach to regulating access to biological resources found in situ, ex situ resources must also be provided for.
8.139 It may be that the terms of establishment and operation of some ex situ collections allow them to consider biodiscovery requests; or that existing collection management policy would not permit it; or that the terms under which its holdings are kept might prevent collections from dealing in the material. Indeed some collections may be seen as existing for research or reference purposes and do not expect any involvement in commercial arrangements. Nevertheless, should an ex situ collection allow such sampling and be able to deal with its material in that way, there should be a framework in which that action takes place and which protects the public interest.
8.140 It has also come to my attention that the extent of Commonwealth ex situ holdings is not well known. Accordingly, action will be needed to identify the extent of all relevant collections so Environment Australia may take action to help holders introduce the access scheme.
8.141 At the same time, reflecting Agriculture, Fisheries, Forestry -- Australia's concerns, I have recommended that material which is the subject of existing international agreements (such as the Food and Agricultural Organization International Undertaking on Plant Genetic Resources) should be excluded from the ambit of the regulations. In this regard I have already indicated that the access scheme does not extend to non-native species. This is to accord with the requirements of Articles 3 and 15 of the Convention on Biological Diversity.
8.142 The Chair of the Council of Heads of Australian Herbaria discusses, in detail, development of a nationally consistent approach to access and benefit sharing among their constituent ex situ collections as part of the Council's participation in developing the Common Guidelines for participating Botanic Gardens on access to genetic resources and benefit sharing (see Appendix 6).
8.143 I have considered the implications of this work. In my view it would be appropriate for the Minister to consider deferring application of the scheme to those Commonwealth organisations involved, pending the outcome of development of these Common Guidelines. This would only be an option if, in the Minister's view, deferral would, in this instance, help progress to a common Australian position and if there was no undue delay in establishing the Common Guidelines. This step would also contribute to the momentum towards a nationally consistent approach by the Commonwealth, States and Territories.
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8.144 Access to Australia's biological resources is currently partly regulated by the Wildlife Protection (Regulation of Exports and Imports) Act 1982, where there is the intent of exporting some or all of that biological material. In particular, where there is potential for commercial gain, access is regulated by either s10 or s10a of that Act. The Act helps discharge Australia's responsibility under the CITIES Convention.
8.145 These provisions were used to regulate harvesting of marine biological resources where the purpose was export of extracts of marine organisms harvested from marine waters of Australia by the Australian Institute of Marine Science.
8.146 In its submission, the Australian Institute of Marine Science commented that:
there is great irony in the current restrictive export regulations with respect to finite amounts of raw sample or extract (which is unreproducible) of macro-organisms.
8.147 The Institute noted that the Wildlife Protection Act allows for export of micro-organisms, such as bacteria and microbes, without an export permit and recommended that the Act should be revised to ensure it covers all Australian wildlife.
8.148 ExGenix also commented on the need to have a consistent approach across biological resources, noting that micro-organisms are rarely considered in discussions about access and conservation of biological resources.
8.149 The Inquiry recognises the merit of controlling the export of micro-organisms to ensure adequate benefit sharing for Australia in the event that a commercially-valuable substance is developed from them.
8.150 The current controls, under the Wildlife Protection Act, were developed in the early 1980s when wildlife conservation focused on higher organisms. How applicable these controls are for the export of micro-organisms requires further consideration. Considering that most micro-organisms can be readily reproduced in very large numbers in the laboratory, rather than harvested from the wild, it is questionable why such controls would be necessary from a biodiversity conservation point of view.
8.151 But biodiversity conservation is only half the access story -- the other half is benefit sharing which is more relevant to the export of micro-organisms than it is to macro-organisms. This is because the culture for screening research and development is exported, the means of large-scale long-term supply is also exported, potentially without ever having to refer back to Australia.
8.152 In such situations it is therefore important to ensure the material has been collected according to laws providing for access to biological resources and which ensure benefits from its use are shared by the exporting country.
8.153 The Inquiry is aware that the Wildlife Protection Act is currently being amended with the intention that its provisions will be incorporated into the EPBC Act. These amendments should consider the implications of placing export controls on micro-organisms. Options could range from controlling exports of all micro-organisms and products derived from them, through to limiting the control only to samples collected for biodiscovery purposes. While this latter proposal has the advantage of being administratively manageable and addresses Australian Institute of Marine Science and Ex-Genix concerns, it exposes a potential loophole: non biodiscovery-related export could result in the culture being deposited into a collection overseas, and then used for biodiscovery research.
8.154 Once a viable culture is exported without control, it becomes difficult to secure any downstream benefits from use of that culture which is infinitely reproducible. By contrast, an extract or compound from a macro-organism, is exported but without an inherent means of large-scale reproduction.
8.155 A further consideration is the role that closing the gaps in regulating the export of biodiscovery samples plays in acting against biopiracy.
8.156 There is growing international pressure to find ways to ensure biological resources of provider countries have been obtained in accordance with the articles of the Convention on Biological Diversity. One suggestion is to amend the system of intellectual property to require evidence that the biological material on which a patent application is based was obtained on terms consistent with the Convention. Another proposal is that countries into which biological source material is being imported require evidence that the material has been lawfully obtained. The Inquiry understands arguments in favour of such proposals were strongly advanced at COP5 in May.
8.157 The existence of a valid export permit, a precondition of which is that the material was collected in accordance with appropriate Commonwealth or State law, would provide a measure of such reassurance to the importing country. I am informed that the potential value of this approach to industry was demonstrated to members of the Australian delegation to the recent Conference of the Parties to the Convention on Biological Diversity. At that meeting a senior representative of a major pharmaceutical company and member of his national delegation explained that evidence of legality and certainty of title were very important to major firms (such as his) which bought the bulk of their product development leads from small, to medium companies.
8.158 He explained that to devote upwards of $700 million dollars and 10 years development work on a new product meant certainty about the company's rights to the source material was very important. In such circumstances to acquire 'pirated' material could put the company at risk. In this regard, the more countries do to add to marketplace confidence in the origins of biological resources the better.
8.159 Australian can play a positive role by closing any gaps in regulating the export of Australian biota used for genetic and biochemical research.
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8.160 The Inquiry noted that some commercial organisations have entered into arrangements with State herbariums or museums to collect samples for biodiscovery purposes. In these cases, the herbarium or museum collects samples for their own collections and at the same time collects samples for the commercial organisation, in accordance with relevant State, Territory or Commonwealth legislation. Should either organisation wish to export these samples, the Wildlife Protection Act controls would apply as outlined in the Wildlife Protection (Regulation of Exports and Imports) Act 1982 Information Sheet No. 5 Scientific Transactions (at Appendix 13).
8.161 If the herbarium or museum wishes to send their samples to an approved overseas organisation or body for non-commercial purposes, they can do this under the Facilitated Scientific Exchange System. However, samples belonging to the commercial body could not be exported unless the original collecting regime had been in accordance with an approved management program or a controlled specimen declaration under s10 or s10A of the Wildlife Protection Act.
8.162 The Australian Institute of Marine Science noted, in their submission, that they obtained a controlled specimen declaration for their entire biodiversity collection and that the process took six months to complete. This example highlights the need to have a more streamlined approach which ensures protection of biodiversity yet provides an administrative framework appropriate for the proposed activity. The inquiry notes that the Institute and the Great Barrier Reef Marine Park Authority are developing a tiered approach for allowing collection of samples for biodiscovery programs.
8.163 It would be desirable to amend the Wildlife Protection Act export provisions to allow recognition of such a model to ensure any approval process is appropriate to the scale of the collecting activity.
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