Investigations should be undertaken in a timely manner to ensure that

ANAO Report No.3 2015–16 Regulation of Great Barrier Reef Marine Park Permits and Approvals 120 and when the decision was made. 136 The ANAO found that the officer making the enforcement decision and the date when the decision was made was unclear in 21 cases 41.2 per cent and 18 cases 35.3 per cent, respectively.

7.32 In general, the reasons for the enforcement action applied for permit

non-compliance have been poorly documented. For the 51 completed permit-related investigations examined by the ANAO, the FMCU had retained documentation to sufficiently explain the reasons underpinning the enforcement decision in only seven cases 13.7 per cent. In the case of 30 permit-related investigations 58.8 per cent, no documentation has been retained to explain the reasons underpinning enforcement decisions with partially complete documentation retained for the remaining 14 investigations. 137 The absence of reasons for enforcement decisions makes it difficult for GBRMPA to demonstrate the appropriateness and consistency of its decisions, including issuing advisory letters to offenders with a history of poor compliance 138 and pursuing different enforcement outcomes for prima-facie similar offences.

7.33 Given the identified weaknesses in enforcement decision-making, there

is considerable scope for GBRMPA to deliver more consistent decision-making by improving the documentation of its enforcement actions by: • explicitly considering all relevant factors, including aggravating and mitigating circumstances, when determining an appropriate response; and • examining how the proposed enforcement action compares to recent decisions for relevant past cases. Implementation of enforcement actions

7.34 Enforcement decisions, once taken, are required to be executed

effectively to achieve the intended purpose of addressing non-compliance. In relation to permit-related non-compliance, this commonly involves the provision of advisory notices to, or public education of, offenders and the receipt of 136 The officer making the enforcement decision may be different to the investigating officer who may recommend a course of action, the officer who informs the offenderpermit holder of the decision or the officer who records the case information in the CMIS database. 137 The type of enforcement action taken such as advisory letter or prosecution had little or no bearing on the extent to which reasons for decisions were documented. 138 A poor compliance history is an aggravating factor to consider when determining an appropriate enforcement response. In those circumstances where a permit holder has a poor compliance history, a more punitive measure may be necessary to discourage future non-compliance. ANAO Report No.3 2015–16 Regulation of Great Barrier Reef Marine Park Permits and Approvals 121 infringement notice fines. Overall, enforcement actions have been executed as intended by GBRMPA and the FMCU, including: for 33 of the 35 investigations that resulted in advisory letters being sent to offenders 139 ; and an offender’s payment of a permit-related infringement notice fine. Nevertheless, there were a small number of cases that indicate that GBRMPA’s implementation of enforcement activities may benefit from further attention, such as non-compliance investigations resulting in public education enforcement actions that were closed before the education of the offenderpermit holder occurred. As at April 2015, education action had yet to take place in respect of at least two cases some five to seven months after the enforcement decision. Conclusion

7.35 While GBRMPA is working to establish a suite of compliance policy,

strategy and guidance documentation, the material developed to date is generally in draft form and does not address all relevant considerations. Further, the established guidance for staff determining appropriate enforcement responses is limited. There is significant scope for GBRMPA to improve compliance and enforcement guidance materials to assist staff to effectively respond to non-compliance in a consistent and timely manner.

7.36 Many instances of non-compliance that were evident from GBRMPA’s

permit monitoring activities undertaken by the EAP Section were not reported to the FMCU and, as a result, were not recorded in CMIS to enable analysis and assessment to be completed. These weaknesses in documenting permit non-compliance adversely impact on GBRMPA’s ability to develop an informed view of risks posed and address non-compliance in a timely manner.

7.37 Where permit-related non-compliance incidents have been recorded,

procedures determining those matters to be investigated and their relative priority for investigation were generally not followed by the FMCU. In relation to the conduct of permit-related investigations, the evidence gathered generally supported the enforcement action that was pursued by the FMCU. Nevertheless, on many occasions, evidence was not retained by the FMCU to indicate that permit holders’ compliance histories were taken into account as part of the investigation process. 139 Advisory letters issued for permit-related breaches in two other investigations failed to mention the permit number and the condition that was breached.