ADDRESS AT THE LAUNCH OF RACHEL BAIRD’S BOOK: "ASPECTS OF ILLEGAL, UNREGULATED AND UNREPORTED FISHING IN THE SOUTHERN OCEAN"

_{30 March, 2007}

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Good evening ladies and gentlemen.  I am overwhelmed and humbled by the very, very distinguished legal and academic gathering here for the launch of this book.  Having seen the people here I feel that probably I’m the most unqualified person in the room to be launching the book and to be giving any commentary on such a fine piece of legal and historical publication.  I was, once upon a time, a small town country solicitor and I think that the closest I ever got to Fisheries Law was pleading guilty for someone who was caught with an undersized whiting.  And so, I comment on Rachel’s excellent work, with some trepidation.

But everything that any lawyer, fisheries administrator, or student would ever want to know about the history and law of illegal, unregulated and unreported fishing is certainly in this publication.

It in fact leaves me very little to tell you about the subject which is not already very concisely and learnedly contained in this book.

This book is, in a sort of indirect way, almost a treatise on four years of my life.  Certainly in the years between 2001 and 2005, which correspond with my term as the Federal Fisheries Minister, much of the work in the fight against IUU fishing evolved and is mentioned in Rachel’s book.

My first association with IUU fishing in the Southern Ocean began in 1997 when I was Parliamentary Secretary to the then Environment Minister and in that role I was in charge of the Australian Antarctic Division and became involved through that with CCAMLR, the Commission for the Conservation of Antarctic Marine Living Resources which as you probably know is headquartered in Hobart.

With a conservation group called Isofish, the Australian Government funded an on the ground intelligence network of environmentalists to spy on fishing boats in various ports of the world, particularly in the Indian Ocean.

And perhaps the public highlight of my work with IUU fishing was the 21 day chase across some of the most dangerous seas in the world, through ice flows, battling 20 metre seas of the pirate fishing vessel Viassa,, by what I knew (but no one else knew) was an unarmed vessel, The Southern Supporter. It followed the Viassa from near Australia's Antarctic Territory to where it was apprehended not far from Montevideo in Uruguay.  A boarding party from the South African Defence Forces, which we arranged after a midnight call to the South African Environment Minister, did the boarding with the help of a British armed fisheries patrol vessel out of the Falklands.  And that chase certainly attracted world headlines. 

The Viassa was taken into custody by the Australian vessel near Montevideo and returned to Australia.  The arrest commenced some four years of international legal action which I’ll briefly mention later on.

But many of the incidents and policy initiatives that Rachel has so precisely written about are matters in which I was involved on a day to day basis.

I am confident indeed that this work by Rachel will become compulsory reading for all those with an interest in international maritime law for many years into the future.

So my heartiest congratulations to Rachael on her book.  My real regret in my association with Rachel is that I only became actually conscious of Rachel’s expertise in this field after I had left (and that’s rather euphemistically put) after I left the portfolio.

But I have suggested to my successor Senator Abetz, who I might say sends his congratulations to Rachel tonight as well, that he should keep Rachel in mind should we ever get involved in some of the international legal action that I was pursuing before I left the portfolio.

For those of you who are lawyers it would make interesting reading to digest the judgements of the International Tribunal Of the Law of the Sea (ITLOS) in the case of Volga which amongst other things challenged Australia’s authority to have a 200 mile exclusive economic zone around the Australian Territories, Heard and McDonald Islands.  One of the 22 judges who sat on ITLOS when the Volga connections took us to that court had a view, for which he was well renowned, that Australia had no entitlement to an EEZ around Heard and McDonald Islands which he described as a couple of rocks sticking out of a vast ocean.  Fortunately his view on the law was one unique to him and in that case of the Volga, we were indeed successful in maintaining the value that we had put on the vessel for bonding purposes.

The criminal prosecution against the Viassa took many years in preparation and when it eventually got to a jury after a trial lasting many weeks, the jury was unable to agree and they were discharged.  On the second trial the jury were locked away for weeks and there were indications when the jury returned for further directions from the judge, that only one juror was holding out against a conviction.  It seemed to me that as the weekend approached and the football season started, suddenly and in the matter of a few minutes, the jury then unanimously concluded that the defendants, the captain, the master were not guilty.

Perhaps my disappointment at the result was too greatly influenced by John Grisham’s novel The Runaway Jury which I had been reading at the time!

I am conscious of the enormous money that is involved in the illegal fishing trade, particularly the trade in Patagonian Tooth Fish.  In the instances involving the Viassa and ITLOS, the value of the vessels, they're really rust buckets, was thought to be about four and a half to five million dollars but the value of the catch from a couple of weeks fishing was about the same value.

These international criminal cartels man these rust bucket boats with slave labour practically, and make huge profits out of the Patagonian Tooth Fish. 

As Rachel clearly points out in her book, the Tooth Fish pirates are organised international criminal cartels, multinational criminal cartels.

The profits from the illegal trade mean that when these matters come before Australian courts there are teams of very expensive lawyers fighting the fight for these international criminals.

The person who we believed to be the real owner of the Viassa – and I might say finding the real owners of these vessels would take a book in its self if you wanted to discuss that – but the person who is believed to be the real owner of the Viassa was arrested and convicted recently in a United States court in Florida under their DeLacy Act, which some of you may be aware of.  From the post trial briefing we received information from colleagues in the Environment Crime Section of the United States Government as follows -

“You may be interested to know that the principal behind the activities of the Viassa, Antonio Vidal, during the post conviction debriefing conducted here in Miami Florida, admitted the criminal intent of the Viassa and its Master and Fishing Master regarding her presence in the vicinity of Heard Island.  Although unwilling to concede the vessel had actually commenced fishing operations in the Australian EEZ, he did admit that it was on route from illegal Tooth Fishing operations in the French EEZ off Kerguelan Island will the full intent of illegally exploiting Tooth Fish stocks near Heard Island when she was observed and pursued by the Southern Supporter.  He had no explanation for the missing radio buoy gear or the pattern of operations reported by observers on the Southern Supporter.”

We were always very confident the Viassa was guilty but we couldn’t get the jury to agree.

Nevertheless I had amended the law to provide that any vessel illegally fishing was automatically forfeited to us and it required a civil action by the owners to claim it back.  I’m told that in the last few months, the civil action by the Viassa connections has been determined and has been decided in our favour.  So we now own another rust bucket called the Viassa.  Although we did take the catch and the fuel on board, those proceeds would never have covered the cost of the chase which ended up being 8,9,10 million dollars.  But we were out to prove a point and I hope we did.

One day when I have some spare time I am going to write a book about that particular chase and the nervous bureaucrats who would have stopped the hot pursuit halfway through - but that’s for another day.

Rachael’s book clearly explains the law as it is and Rachael’s book also very clearly identifies many of the difficulties confronting those of us who want to protect the marine resources particularly of the high seas.

I notice at page 214 Rachael made a reference to the Volga incident whereby Mr Justice French, whose decision was upheld in the Full Federal Court, with special leave to appeal to the High Court being refused, did reject the contention that the forfeiture provisions of the Fisheries Management Act depended on a conviction.

Rachael, I think perhaps somewhat unwisely from a finer legal view point, quoted my media release entitled New Chapter in Maritime Law – Attempt to Claim back the Volga Rejected.  Now in that media release I applied an interpretation which I have to say was entirely my own and not necessarily shared by the learned lawyers at Commonwealth Crown Solicitors Office.  I said that the decision in Volga supports the Government’s view that if a foreign fishing vessel is sighted illegally fishing in Australian waters, that is fishing without a permit in Australian waters, then that vessel, its equipment and catches automatically forfeits to the Commonwealth and becomes the property of the Australia.

And the proposition I was promoting was that we didn’t have to physically apprehend it illegally fishing - by actually fishing illegally in our waters the boat became our boat with the consequence that at any time in the future, when we came across our boat, we could take possession of our boat.

That proposition, as I say, was set out in a media release more to send a message, and that was a very important part of my role, rather than to be a precise of the substantive law.  I wanted to get the message out to these fishing cartels, that we were serious and if they dared to fish illegally in our waters we could claim their boat wherever it was, in London, in New York or Mauritius, anywhere we came across it.  If we knew they had been fishing without a permit, it became our boat.

I emphasise that this was done more with a view to intimidating those would be thieves, than to be an exposition of the law.  However as events happened, that proposition has received more learned support just recently.

Just before I left the portfolio, a New Zealand Air Force Orian happened to be flying across Macquarie Island, which as you’ll know is many hundreds of kilometres south of Tasmania, but is part of Tasmania though, and this Air Force plane came across a vessel which appeared to be illegally fishing.

Fortunately the aircraft had cameras on board – it was after all a fisheries patrol aircraft – and photographs were taken and the vessel identified as the Taruman. We had no vessel anywhere to apprehend the Taruman and so it went on its way.   But several months later we had a report that the Taruman was transiting Australian waters so it was decided to apprehend the vessel.

I am advised that when the matter came before court, very recently and a long time after I left the Ministry as it turned out, and perhaps any of you who would like to follow this should read the reports rather than rely on my poor understanding of it, but I am advised that the defendants did not even contest the proposition that the vessel was actually Australia’s property because it had been sighted fishing illegally in Australian waters.  They pleaded guilty to the particular charge.

I understand however that there was a contested hearing involving the Taruman and that in itself was interesting as well, because the supplier of the fuel for that vessel had never been paid (I think the fuel was worth more that $1 million) and they claimed that ownership of the fuel had never passed to the ship owners and they wanted it back.  The court rejected that application.
 
As I recall they also claimed that the fish they had caught in fishing off Macquarie Island had been offloaded, in Singapore I think it was, and they were coming back for another go when they were apprehended.  They’d been doing some fishing on the way back and they said therefore the fish on board wasn’t the fish that the New Zealand Air Force plane observed them catching off Macquarie Island, this was some other fish.  Again the court rejected contention that and we succeeded in our claim for the value of that catch.

My advice from our lawyers at the time was that we always would be able to claim both the fish and the fuel, but just to be sure I had given instructions that we should amend the law to put that beyond doubt in these instances, so the fuel becomes part of the boat and so does any catch.  I’m told that legislation is shortly to come before Parliament.

Ladies and Gentlemen, time doesn’t permit me to go into this question, but lawyers in this field might be interested in having a look at the recent events involving the Commission for the Conservation of the Southern Bluefin Tuna, the CCSBT.

We had been mystified at the fall off in SBT fish stocks.  One of the industry fishers from Port Lincoln was in Japan and after reading the Fish Market Reports did some calculations on the back of an envelope and worked out that something like twice the Japanese quota was going through the Fish Markets in Tokyo.

Now on a number of occasions we had been concerned that perhaps someone was taking fish they weren't entitled to, and we had our suspicions but nobody had any proof.  But after this calculation, the Japanese were approached.  There were some very sensitive negotiations but the Japanese eventually conceded that they had for years been catching almost double their quota which is why the fish stock was unsustainable and as a penalty they have had their quota substantially reduced.

But as I said Rachael’s book clearly goes through all the difficulties confronting those of us who are trying to protect the Marine Living Resources.

The principles of Freedom of the High Seas which Rachael very interestingly relates in Chapter 2 of her book, and which, as Rachael says originates from the time of Hugo Grotius, (is that a name that’s familiar to academics, it wasn’t familiar to me), would have been very appropriate at the time.  Sir Walter Raleigh and Sir Francis Drake would have relied upon those principles as they plied the Spanish main, taking the gold and jewels from Spanish vessels and discovering the New World.  Those rules about Freedom on the High Seas may have made sense back in those days, but I think these days we do have to revisit those rules which deal with the so called freedom to fish and ply the high seas.

I believe these laws need change.  I’m hesitating to say this because I’ve met someone here tonight who was one of the principle negotiators in the first United Nations Convention on the Law of the Sea and I want to acknowledge the supreme effort that would have involved and it’s perhaps a little ambitious of me to be making these comments because I know how difficult international negotiations can be but nevertheless I believe something does have to be done.

Then there is the problem with the flags of convenience which again Rachael deals with in many places throughout her book particularly on page 58.  Flags of convenience need to be seriously addressed.  The genuine link required between the vessel and the flag state must be enforced in a better way than it can be now.

There was some serious legal opinion proffered during the time of that Ministerially led High Seas Taskforce that suggested to me that States which issued flags and then did nothing to enforce international conventions or their own laws, could be made responsible. 

The difficulty of course, as you would know, is that in a regional fisheries management areas like CCAMLR, like CCSBT, the rules apply only to signatories to the Convention so if you’re not a signatory to the Convention, you can ignore those rules with impunity.

Not long ago Togo was issuing flags.  You could buy them on the internet I think, with a pocketful of money which goes a long way in Togo.  And Togo wasn’t a party to CCAMLR but their flagged vessels were there under our noses actually illegally fishing in the CCAMLR RFMO area. 

I asked the Attorney General’s Office eighteen months ago to actually do me some work to ascertain if we were able to sue the Government of Togo for not discharging their 'genuine link' obligations with their flagged vessel.  Now the 'genuine link' responsibilities meant nothing to Togo.  Togo was in the throes of a civil war, they had no civil administration to speak of, but they were still selling flags of convenience mind you.  They were more worried about their own lives than with what some 'foreign to them' vessels with Togo flags might be doing at the other end of the globe. 

But I thought if we could take them to an International Court, it might send a message to some other countries not to issue flags without any intention of or capacity for regulating the vessels flying them.

I have, at any number of international conventions, tried to argue that Law of the Sea Convention should be changed to allow parties to Regional Fisheries Management Organisations, to apprehend any vessel operating in contravention of the rules.

Now many would think that this is extreme and contrary to many deeply held and perhaps valid legal principles but I think the situation has become so critical that the international community must wake up to itself and look at new ways of addressing the problem.

There are however hopeful signs on the horizon.  The Western and Central Pacific Tuna Commission which Australia set up for the Pacific States in the last couple of years, may adopt a new set of rules that give members the right to apprehend all vessels in the RFMO area .  This is very much 'work in progress' but should be followed with interest.

People who know more about international diplomacy than me, tell me it would take my life time (the term that’s gone not the term that’s in front of me) to change the Law of Sea Convention and as I say I’m honoured to meet someone here who was involved in the initial convention.  It is a very lengthy process I know but , with due respect to those who might have been involved initially, some of the hypocrisy, and in my view, stupidity, that goes on with a lot of these conventions, should be revisited.

I know the Americans are very sensitive about any change to the law which allow their tankers and their military vessels to sail the high seas unchallenged.  But I would urge that you can separate the fishing fleets of the world from the other vessels and implement laws that will allow, for example, Australia, to arrest Togo vessels found on the high seas pillaging fish stocks.

Ladies and Gentlemen, finally can I just say to you that Australia has led the world in recent times in the actions we’ve taken.  Since we’ve had the Oceanic Viking, an armed customs vessel, working in the southern ocean with the French, with French officers on our vessel and Australian officers on French vessels, we have not had any sightings in our EEZ, and this is going back three years now.  We have not had any sightings of illegal vessels in our EEZ, around Heard and McDonald Islands, nor in the French EEZ around Kerguelan which adjoins Heard and McDonald.

And so our measures are working.  We have done a lot with port state control, much work through the FAO and through the various RFMO's, with Catch Documentation and other schemes.  The United States will not allow Tooth Fish to be sold in their country now unless there is a very clear documentary trail indicating that the fish was caught legally by vessels from one of the few, and Australia’s one, nations that do have a licence to catch the small allowable catch of Patagonian Tooth Fish.

We have Treaties with France and I’m delighted to hear that a treaty that we’ve been negotiating with South Africa for many years, is shortly coming to fruition.

But Ladies and Gentlemen back to my purpose here tonight.

Congratulations to you Rachael on this very, very fine piece of legal and historical reference.  It’s a work which I believe will help shape and develop Law of the Sea with regard to the Conservation of the Marine Living Resources.

I know you’ve put an enormous amount of effort into this publication – including I suspect, many buckets of blood and sweat and I’m sure some tears as well.

It is a work of which you are, and can be justifiably proud.  Can I thank you on behalf of all of those who I know will benefit from this concise and very learned compilation of the law relating to illegal, unreported and unregulated fishing in the Southern Ocean and wherever else it occurs on our planet.

Congratulations, well done and all the very best to you for the future.

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