In relation to the conduct of investigations, many FMCU permit-related

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 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.