Section 481 of the EPBC Act empowers the Federal Court to determine the ‘appropriate’ penalty when a wrongdoer contravenes a civil penalty provision. This decision illustrates how a court might determine appropriateness. In particular, the judgment took into account the need to deter others from committing offences in similar circumstances.

The respondent Mr Wilson had contravened section 354(1) of the EPBC Act by catching shark in a marine park. Individuals who contravene this section may be liable to a maximum civil penalty of 500 penalty units (equivalent to $55,000).

Sitting alone in the Federal Court, Justice Selway noted these facts to be material:

• The respondent had committed no prior offences. He had admitted his breach, and had cooperated with the applicant in relation to his wrongdoing.

• Fishing is done by setting a net that spans four kilometres. The fisherman cannot look at the GPS on the boat when setting the net.

• The respondent knew that he was fishing close to the boundary of the park. While setting the net, he drifted into the marine park, probably because the wind had changed direction. Some of the net was therefore set within the park boundary, although most of it remained outside.

• The total value of fish caught was $11,500. Approximately $200 worth was taken from the park.

The respondent admitted guilt. The issue before Justice Selway was the appropriate penalty.

Justice Selway considered a penalty of $12,500 appropriate. (Note: this is $10,000 more than the total value of fish gained.) His Honour stated that the respondent took a risk when setting the net close to the park. Knowing that GPS navigation was not possible, and that the boat was susceptible to drift and wind, the respondent should have anticipated that he might drift into the park while setting the net, thus catching fish from within the park. The breach was not deliberate, but it was negligent and maybe reckless. His Honour also gave weight to the need to deter others from taking similar risks.

Two key conclusions can be drawn from this case. First, risk-taking behaviour may incur penalties where unlawful actions result. So when a person is not sure whether he is complying with the law, this decision obligates him to act cautiously, or else risk pecuniary penalties.

Second, deterring others from taking similar risks is a relevant factor when determining the appropriateness of a penalty.

• The full decision is available on Austlii