Wednesday, 24 May 2017 

Harpooned dead protected Minke whales - Australian Whale Sanctuary - credit Australian CustomsIn working with the great people at the Environmental Defenders Office NSW (EDONSW), after many years of fighting for transparency, we are happy to announce that the information commissioner has decided that Australians have every right to see the 2008 public funded, customs whaling footage.

Back in 2008, as part of Australia’s whaling case against Japan in the International Court of Justice (ICJ), the Australian Customs vessel Oceanic Viking filmed Japan’s whaling fleet chasing, harpooning and murdering whales inside the Australian whale sanctuary off the Antarctic coast. This was during the Rudd/Gillard Labor government and the evidence obtained was used in the ICJ case that led to the ruling on 31st March 2014, that Japan’s whaling program was not scientific.

EDO NSW, Sea Shepherd’s solicitors, welcomed the Information Commissioners decision. CEO Sue Higginson says “this is a significant win for transparency and accountability about how the Australian Government has dealt with Japanese whaling in the Australian Whale Sanctuary in Antarctica. Whales are protected from harm under Australian law, so any evidence showing harm is a matter of significant public interest. 

We first sought access to the Australian Government’s footage of Japanese whaling in the Australian Whale Sanctuary in March 2012. It has been a long and arduous process. Over the past 5 years the Australian Government has refused access on the basis that release of the whaling footage would harm its relations with Japan, this is despite challenging Japan’s whaling program in the International Court of Justice and many Government Ministers over the years publicly condemning the program. 

The Information Commissioner has found that such an argument cannot be sustained and has ordered the release of the footage. The Australian Government has 28 days to appeal this decision, if there is no appeal the footage will be released."

Nicola Beynon who is the Head of Campaigns for the Australian Office of Humane Society International, stated, “Killing whales in the Australian Whale Sanctuary is a breach of Australian law. The Australian public has a right to see that offence and to know how appalling it is.”

Sea Shepherd Australia’s Managing Director Jeff Hansen stated, "Numerous past polls show that the majority of Australians want an end to whaling in the Australian Antarctic whale sanctuary and they want our government to send a vessel to oppose Japan’s bloody business. However, time and time again the Australian governments of Labor and Liberal have represented the wishes of Japan and not the people of Australia.

Whether this be in the form of Australian Federal Police boarding our ships at the request of Tokyo, or that Japan would come away clean from any investigation into the ramming and sinking of Sea Shepherd’s vessel the Ady Gil, and for 5 years now, the Australian Government has not allowed Australians to see this whaling footage, because Tokyo was angry.”

“Sea Shepherd would like to thank the great team at EDONSW and also acknowledge the good people at Humane Society International for kicking this process off back in 2012. It should not be up to not for profit groups to fight for many years in bringing transparency to the public, something that is rightfully theirs. The world is now watching; the question now is will the Australian Government appeal this decision to the Administrative Appeals Tribunal (AAT) and further represent the wishes of Tokyo and not those of the Australian people?"

The agency must now provide us with access to the video footage, or refuse to provide it and challenge the decision in the Administrative Appeals Tribunal.

Dead mother and calf protected Minke whales - killed inside the Australian Whale Sanctuary - credit Australian Customs

The summary chronology is as follows, showing three Freedom Of Information (FOI) applications:

1. On 5 March 2012, on behalf of HSI, EDO made an urgent FOI application to the Australian Customs & Border Protection Service for the whaling footage for the purpose of the contempt proceedings in the Federal Court (for which judgment was given in late 2015, as you are aware);

2. On 16 April 2012, the FOI application was refused on the basis that the documents were exempt as the release of the documents would affect international relations.  This decision was made in the context of the ICJ proceedings and that “premature release of the evidence will most likely damage the conduct of the proceedings, and therefore disclosure would, or could reasonably be expected to, cause damage to the good working relations between the Commonwealth and a foreign government.” 

3. On 28 October 2013, on behalf of HSI, EDO made a further FOI application to the Australian Customs & Border Protection Service.  That application noted that as the ICJ proceedings had concluded, the documents were no longer exempt.

4. On 23 December 2013, access to the documents was again refused on the basis that the documents were exempt.  Again, damage to international relations was cited as the reason for exemption.

5. On 24 March 2014, on behalf of HSI, EDO made a review application to the Information Commissioner.  The review request argued that as the ICJ proceedings had concluded, the argument about the documents prejudicing the ICJ case was no longer valid.

6. On 31 March 2014, the ICJ handed down its decision in favour of Australia, ruling that Japan’s whaling program was not scientific.

7. On 11 July 2014, the Information Commissioner replied to our 24 March 2014 request and informed us that due to changes in the Commonwealth budget that year, it had been announced that the Information Commissioner’s office would be abolished. The Information Commissioner review function was to be transferred to the AAT.  We did not pursue the matter in the AAT.

8. On 3 September 2015, on behalf of HSI, EDO we applied to the Federal Court to seek an order the Kyodo was in breach of the Court’s injunction that was made in 2008 to prevent Kyodo from whaling in the AWS.

9. On 18 November 2015, the Federal Court order that Kyodo was in breach of the 2008 injunction and ordered that it pay a $1M fine for the contempt of Court.

10. On 7 December 2015, on behalf of Sea Shepherd EDO made a further FOI application to Department of Immigration and Border Protection (previously Australian Customs & Border Protection Service) for the whaling footage.

11. On 8 January 2016, the Department of Immigration and Border Protection requested that we revise the scope of our application.  We revised the scope on 22 January 1016.

12. On 29 April 2016, the Department of Immigration and Border Protection refused the FOI request on the basis that the documents were exempt as the disclosure of the documents would affect international relations.

13. On 23 May 2016, we applied to the Information Commissioner for review of the refusal.  We made further submissions on the matter on 17 February 2017 and continued to follow up with the Information Commissioner to press for a decision. 

14. On 23 May 2017, the Information Commissioner made a decision that release of the footage was not exempt and would not affect international relations and ordered that the footage be released.

Sea Shepherd has conducted 11 Antarctic whale defence campaigns, that have saved the lives of over 6,000 whales to date.