While the FMCU has not established target timeframes for determining

ANAO Report No.3 2015–16 Regulation of Great Barrier Reef Marine Park Permits and Approvals 118

7.27 Investigations that did not proceed directly to an enforcement response

commonly involved a number of considerations and actions that, in general, supported the enforcement action pursued including contactinterviews with persons of interest andor witnesses, substantiation of the offences’ location and preparation of briefs of evidence for matters that were lodged with the CDPP with a view to prosecution. However, evidence has not been retained to demonstrate that the compliance history of persons of interest andor permit holders were considered in nearly three-quarters of permit-related non-compliance investigations although GBRMPA informed the ANAO that compliance histories are regularly considered during investigations. 135 The failure to consider compliance history has implications for an investigation’s outcome, as it can be considered an aggravating or mitigating factor in determining appropriate enforcement action. In a separate investigation, GBRMPA did not inform the CDPP that an offender being prosecuted had been issued with an advisory letter for similar conduct in the past, which GBRMPA noted could have been raised during the offender’s sentencing. Investigation timeframes

7.28 Investigations should be undertaken in a timely manner to ensure that

any non-compliant behaviour is addressed promptly and any adverse impacts arising from the non-compliance are minimised. Further, the application of statutes of limitation to some enforcement remedies such as infringement notices that must be issued within 12 months of the non-compliance occurring increases the importance of conducting timely investigations. Taking these considerations into account, setting target timeframes for the completion of investigations helps regulators to monitor the performance of investigating activities. The FMCU is, however, yet to establish target timeframes for the conduct of investigations and, while the status of all open investigations is reviewed weekly and included in management reports prepared monthly, the FMCU does not monitor the overall timeliness of its investigations. The establishment of target timeframes for completing investigations and taking enforcement action would better position GBRMPA to more effectively monitor the performance of its investigations function. 135 In 22 cases 37.3 per cent, the persons of interestpermit holders had either a fair or poor compliance history. ANAO Report No.3 2015–16 Regulation of Great Barrier Reef Marine Park Permits and Approvals 119

7.29 In the absence of established targets and routine monitoring, the ANAO

examined the timeliness of permit-related non-compliance investigations. The ANAO’s analysis identified that around half of the 51 finalised cases were completed within a relatively short time period 10 days or less, with most of these involving incidents that proceeded directly to enforcement action as outlined earlier at paragraph 7.26. Nevertheless, the average duration of completed permit-related investigations—98 days ranging from 0 to 644 days— indicates that extended timeframes were required to finalise a significant proportion of investigations including seven that required six months or more to complete. In addition, there were eight active permit-related investigations as at December 2014 that had been underway for between 83 and 813 days.

7.30 The overall timeliness of permit-related investigations has been heavily

influenced by consistent, lengthy delays in obtaining timely information or action from areas of GBRMPA outside the FMCU—despite reminders from the FMCU. Management reports prepared by the FMCU indicate that, as at 10 April 2015, the status of 44 of the 151 open investigations into permitted activities and activities not subject to a permit had been recorded as ‘Pending Advice from Permit Compliance [EAP Section]’—including 13 investigations where the last recorded update occurred between the period October and December 2014. In particular, the documentation in case files for10 permit-related investigations involving facilities or structures examined by the ANAO does not sufficiently explain delays of months, and even years, in some cases, relating to information being provided by other areas of GBRMPA. In two cases, enforcement actions were ‘downgraded’ from advisory letters to public education measures as a direct result of the length of the investigation. Further, the records retained by GBRMPA do not indicate the reasons for the: periods of between three and nine months where no progress was made; or taking of enforcement action was delayed after the decision was made for a further three investigations. Enforcement decision-making

7.31 As noted above, FMCU’s procedural and guidance material has not clearly

established those officers within GBRMPAFMCU that are responsible for determining appropriate enforcement action for breaches of permits. In addition, on many occasions, sufficient information has not been retained to clearly identify the officer that approved the enforcement response for permit non-compliance