This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Fisheries Legislation Amendment Bill 1996
Date Introduced: 12 December 1996
Portfolio: Primary Industries and Energy
Commencement: On Royal Assent
There is no general theme to the Fisheries Legislation Amendment
Bill 1996 (the Bill). Details of amendments to the Fisheries
Administration Act 1991, the Fisheries Management Act
1991 and the Torres Strait Fisheries Act 1984 appear
Commonwealth fisheries legislation
In the early 1990s a package of fisheries legislation was passed
by the Commonwealth Parliament.
The Fisheries Administration Act 1991 established the
administrative structure for the implementation of the
Commonwealth's fisheries management objectives. One of the key
administrative bodies established under that Act was the Australian
Fisheries Management Authority (AFMA). AFMA is a body corporate
responsible for the 'day to day management of Commonwealth
fisheries resources within the Australian Fishing Zone.'(1) Its
legislative objectives include efficient and cost-effective
management of fisheries and ensuring that fisheries resources are
exploited in an ecologically sustainable way.(2)
AFMA's functions include devising management plans for
Australian fisheries and establishing and allocating fishing
rights. In addition, AFMA may establish committees, including
management advisory committees, to assist it in its work. The
functions of management advisory committees include liaising
between the AFMA and persons engaged in a fishery, advising the
AFMA on management plans and monitoring and reporting to the AFMA
on scientific, economic and other information relating to
The legislative basis for AFMA's management of fisheries is
provided by the Fisheries Management Act 1991. The Act
deals with management plans for fisheries, provides for statutory
fishing rights, creates offences for the taking of certain marine
species and bans driftnet fishing in the Australian Fishing Zone
(AFZ). Under the Fisheries Management Act 1991, the
Minister has a statutory duty when making decisions to take full
account of ecological sustainability and resource
The Torres Strait Fisheries Act 1984 'governs rights of
fishing in waters between Australia and Papua New Guinea, in
accordance with agreements made in the Torres Strait Treaty
regarding sovereignty and maritime boundaries between the two
countries. In particular, the treaty, and consequently the Act, is
concerned to preserve "the traditional way of life and livelihood
of traditional inhabitants, including their rights in relation to
traditional fishing" ... Where appropriate to do so, the views of
traditional inhabitants may be sought on any matter affecting their
interests.'(4) AFMA also administers Torres Strait Fisheries under
the Torres Strait Fisheries Act 1984.
Schedule 1 - Amendments to the Fisheries Administration Act
Clause 2 of Schedule 1 amends section 7(g) of
the Fisheries Administration Act 1991. It extends the
functions of the AFMA. As well as consulting and exchanging
information overseas bodies, AFMA will be able to consult and
exchange information with State and Territory bodies. The clause
also provides that a function of the AFMA is to make its expertise
in fisheries management available to those bodies.
Clause 4 of Schedule
1 inserts new sections 58(1A) and 58(1B)
into the Fisheries Administration Act 1991. These new
provisions relate to the powers of management advisory committees
established under the Fisheries Administration Act
1991.(5) New section 58(1A) enables a
management advisory committee to establish sub-committees and to
abolish those sub-committees. New section 58(1B)
enables a management advisory committee to determine how a
sub-committee will perform its functions and what its meeting
procedures will be.
Clause 5 inserts new section
67(4) into the Fisheries Administration Act 1991
to allow for the payment of travelling allowance to management
advisory committee members and members of sub-committees
established under new section 58(1A). Existing
section 67(4) of the Fisheries Administration Act 1991
only enables members of management advisory committees to be paid
Clause 10 is a transitional provision which
provides, among other things, that sub-committees which have
already been established under the Fisheries Administration Act
1991 are taken to have been validly established, their
meetings validly convened and any travelling allowance paid to
members validly paid.
Schedule 2 - Amendments to the Fisheries Management Act
Penalties for driftnet fishing
Clauses 10, 11 and 12 of Schedule 2 amend
penalty provisions relating to driftnet fishing and taking certain
fish otherwise than in accordance with a scientific permit.
Clauses 10 and 11 replace monetary penalties with
their equivalents in penalty units for offences committed under
sections 13(1), (2), (3) & (4) of the Fisheries Management
Act 1991. The current value of a penalty unit is $100.
Clause 12 increases the penalties in sections
15(1) & (2) for taking certain fish without a scientific permit
from $5,000 to 125 penalty units ($12,500).
Statutory fishing rights options
Clause 14 of Schedule 2 inserts new Division 4A
into Part 3 of the Fisheries Management Act 1991. The
Minister's Second Reading Speech explains the purpose of new
Division 4A in the following terms:
The purpose of this amendment is to protect the fishing industry
against changes in Government or administrative policy which the
revocation of management plans might otherwise entail. This will
give greater security of investment to both fishing operators and
New section 31A(1) provides that if a
management plan for a fishery is revoked, then each person who held
statutory fishing rights under that plan holds a statutory fishing
rights option. [A statutory fishing right is granted by AFMA under
the Fisheries Management Act 1991 and incudes a right to a
specified quantity or proportion of fish in a managed fishery or a
right to use a boat in a managed fishery for specified purposes.
Statutory fishing rights are granted subject to conditions and
terminate if the management plan is revoked.(7)]
New section 31A(1) does not apply if the
revoked management plan is immediately replaced with a new plan
that is substantially identical to the revoked plan. In such a
case, anyone holding a statutory fishing right under the old plan
has equivalent statutory rights under the new plan (new
New section 31B sets out how the rights of a
statutory fishing rights option holder are to be calculated where
the new management plan for a fishery is the same or substantially
the same as the revoked management plan.
New section 31C sets out the rights of a
statutory fishing rights option holder where, in AFMA's opinion,
new section 31B does not apply to the new plan and
where the new management plan has some features in common with the
revoked management plan.
New section 31D sets out how a statutory
fishing rights option holder must exercise their option to prevent
the option from lapsing.
New section 31E provides for a Register of
Statutory Fishing Rights Options. The Register is to be kept by
AFMA (new section 31E(1)) and may be computerised
(new section 31E(2)). New section
31E(4) sets out the particulars that must be kept on the
Register. The particulars include the name and address of the
option holder and the number and class of statutory fishing rights
to which the option relates.
New section 31F provides that a dealing which
creates, assigns, transmits or extinguishes an interest in a
statutory fishing rights option has no effect until it is
registered. New section 31F also sets out how such
dealings are to be registered and AFMA's responsibility for making
documents available for inspection.
New section 31G sets out the circumstances in
which the AFMA must register or refuse to register a claim of
interest in a statutory fishing rights option.
New section 31J enables the holder of a
statutory fishing rights option to deal as owner with the option -
subject to any rights appearing to be vested in other people that
are found on the Register of Statutory Fishing Rights Options.
The AFMA must not grant any statutory fishing rights under a new
management plan unless it has notified each statutory fishing
rights option holder asking the option holder whether he or she
wishes to exercise the option and the notice period has expired
(new section 31K).
Clauses 20 and 21 enable the AFMA to approve or
refuse transfer of the ownership of a fishing right - irrespective
of whether the fishing right was granted by the AFMA or a Joint
Authority. At present, transfer approvals must be given by a Joint
Authority if the fishing right was granted by a Joint Authority.
[Under the Offshore Constitutional Settlement of 1983, there are
four management categories in relation to the division of fisheries
responsibility between the Commonwealth and the States. One is
joint authority management '... where the Commonwealth and one or
more of the States can form a single legal entity which manages a
fishery under a single law, either Commonwealth or State.'(8)]
Clause 22 substitutes new section
65(1) for existing section 65(1). Existing section
65(1) enables a Joint Authority to delegate certain of its
statutory powers to the AFMA, a Commonwealth employee or a
Commonwealth authority. New section 65(1) will
remove this power, but will enable powers to be delegated to an
officer or employee of a State or State authority. According to the
Bill's Explanatory Memorandum, 'With the new powers being given to
AFMA, the situation where powers will need to be delegated to AFMA
or Commonwealth officers should no longer arise.'(9)
Clause 25 repeals existing section 78 and
substitutes new section 78. Existing section 78
sets out the functions of Joint Authorities. Under new
section 78, where a Joint Authority manages a fishery in
accordance with Commonwealth law, the AFMA has the same powers as
it would have if the fishery were under AFMA management. However,
the AFMA must obtain approval for such things as management plans
from the Joint Authority rather than from the Commonwealth Minister
(as would be the case with an AFMA fishery).
Clause 28 amends section 84 of the Act -
dealing with the powers of officers appointed by AFMA for the
purposes of the Act. Among other things, these amendments enable an
officer to search the premises of the holder of a fish receiver
permit to determine whether a condition of the permit is being
complied with - without having to obtain the permission of the
holder of the fish receiver permit. Existing section 84 requires
the permission of the holder of the fish receiver permit to be
obtained or a warrant to be used. [A 'fish receiver permit' enables
a person to receive fish from a commercial fishery which is subject
to a management plan.]
The warrant provisions contained in the Bill follow, in general,
the provisions relating to search warrants for premises in the
Crimes Act 1914 (Cwlth). The Bill does not pick up those
parts of the Crimes Act 1914 that deal with warrants for
searches of the person. Nor does it appear to take up section 3E(4)
of the Crimes Act 1914 which provides that, if the
applicant for a warrant is a member of the AFP and has previously
applied for a warrant to search the same premises, particulars of
those applications and their outcome must be stated in the
application for the warrant.
Clause 30 of Schedule 2 repeals sections 85 and
86 of the Fisheries Management Act 1991 and substitutes
new sections 85 and 86.
New section 85(1) provides that, on application
on oath by an 'officer' a magistrate can issue a search warrant if
satisfied that there are reasonable grounds for suspecting that
evidential material is or will be on the premises. The word
'officer' is defined in section 4 of the Fisheries Management
Act 1991 and means a person appointed under section 83 of the
Act, a member of the Australian Federal Police or a State or
Territory police force or a member of the Defence Force.
Under new section 85(2), if the applicant for
the search warrant suspects that it may be necessary to use
firearms in executing the warrant, the person must state this and
the reasons for the suspicion, when applying for the warrant.
New section 85 also sets out what must and can be
contained in a warrant.
New section 85A specifies the things that are
authorised under a search warrant. These include entering the
warrant premises, taking forensic samples and recording
fingerprints found at the premises, searching for evidence, and
seizing certain things.
New section 85B deals with the use of force
when a warrant is executed. Among other things, it provides that an
executing officer and an assisting officer may use such force as is
necessary and reasonable in the circumstances.
New section 85C provides that a copy of the
warrant must be given to the occupier of premises or a person
representing the occupier. The executing officer must also show his
or her identity card.
New section 85E(2) enables things at the
premises to be removed from the warrant premises for examination or
processing. If things are removed then, if practicable, the
occupier must be informed of where they have been removed to and
allowed to be present during examination and processing
(new section 85E(3)).
New section 85F enables electronic equipment at
warrant premises to be operated and seized by the executing officer
in certain circumstances. If the electronic equipment is damaged -
for example, as a result of insufficient care being used by the
person operating the equipment - then compensation is payable
(new section 85G).
New section 85J provides that the occupier of
the premises or a person representing the occupier is entitled to
observe the search being conducted, unless he or she impedes the
search. However, new section 85J does not prevent
two or more areas of the premises being searched at the same
A receipt must be provided if something is seized under warrant
or removed under new section 85E(1) (new
New section 86 enables officers to apply for a
warrant by telephone, telex, fax or other electronic means in an
urgent case or where an application in person would cause a delay
that would frustrate the effective execution of the warrant. It
also sets out the formalities that must be complied with. For
example, if the magistrate decides to issue the warrant, then he or
she completes and signs a warrant form (new section
New section 86(5) provides that if the
magistrate decides to issue a warrant that has been applied for
electronically, he or she must tell the applicant via telephone,
fax or other electronic means the terms of the warrant and when it
was signed. The applicant must then complete a form of warrant 'in
terms substantially corresponding to those given by the magistrate'
(new section 86(6)). New section
86(9) provides that if a court needs to be satisfied that
the exercise of a power under a section 86 warrant was duly
authorised and the form of warrant signed by the magistrate is not
produced, then the court must assume, unless the contrary is proved
that the exercise of the power was not duly authorised.
Clauses 32, 34, 35, 36, 37, 38, 40 - 52, 54 and 55 of
Schedule 2 effect changes to penalty provisions in the
Fisheries Management Act 1991. In some cases these changes
merely convert dollar values to penalty units. Existing penalty
amounts are retained in relation to certain offences involving the
use of foreign boats.(10) In other cases, the amendments increase
the penalties for offences. For example:
- clause 32 amends section 89(4) of the Act by
increasing the maximum penalty for non-return of an identity card
by an officer appointed under section 83 from $100 to 2 penalty
- clauses 36 and 37 amend sections 95(5) and 96
of the Act by increasing the maximum penalties from $5,000 and
$10,000 respectively to 250 penalty units ($25,000). Sections 95(5)
and 96 relate to unlawful commercial fishing in the AFZ and
unlawfully removing fish from traps in the AFZ.
- clauses 38 and 40 amend sections 97(1) and 99
of the Act by increasing the maximum penalties from $5,000 to 125
penalty units ($12,500). Section 97(1) deals with unlawfully
receiving fish and section 99 deals with using foreign boats for
recreational fishing in the AFZ.
Clause 39 inserts new section
98(3) into the Fisheries Management Act 1991.
New section 98(3) enables a court to cancel or
suspend the fishing concession of a person who is convicted for an
offence against the Act or for an offence committed while the
person was doing something authorised by their fishing concession.
A 'fishing concession' is defined in section 4 of the Act and means
a statutory fishing right, a fishing permit or a foreign fishing
Schedule 3 - Amendments to the Torres Strait Fisheries Act
Clause 1 of Schedule 3 inserts new
section 15A into the Torres Strait Fisheries Act
1984. New section 15A enables the Minister to
determine a management plan for a fishery in an area of Australian
jurisdiction. A determination made by the Minister is a
disallowable instrument (new section 15A(12)) -
which means that it must be tabled in both Houses of Parliament and
can be disallowed by either House.
New section 15A also sets out what must and
what may be contained in a management plan determined by the
Minister. A management plan must set out its objectives and how
they are to be achieved (new section 15A(2)). A
management plan may specify how the fishing capacity of a fishery
is to be measured and what fishing capacity is permitted for the
fishery (new section 15A(4)).
Where a fishery management plan is in place, the Minister and
the AFMA must perform their functions and exercise their powers in
accordance with it (new section 15A(9)).
- Australian Fisheries Management Authority, Annual Report
1995-96, p.ii. The Australian Fishing Zone (AFZ) comprises the
waters adjacent to Australia and certain of its external
territories extending from defined baselines to 200 nautical miles
seawards. It does not include coastal and excepted waters. Within
the AFZ, Australia exercises jurisdiction over all fishing by
Australian and foreign boats. see AFMA Annual Report 1995-96.
- Senate Standing Committee on Industry, Science, Technology,
Transport, Communications and Infrastructure, Fisheries Reviewed,
- Bates, G Environmental Law in Australia, 4th ed, Butterworths,
Sydney, 1995, p.245.
- Section 17 of the Fisheries Management Act 1991 gives AFMA the
responsibility of determining management plans for fisheries after
consultation with appropriate persons engaged in fishing. Such
consultations are generally conducted through management advisory
committees (Fisheries Reviewed, op.cit).
- Second Reading Speech, page 2.
- see Fisheries Reviewed, op.cit.
- Ibid, p.31.
- Explanatory Memorandum, p.7.
- Second Reading Speech, Fisheries Legislation Amendment Bill
- Section 4, Fisheries Management Act 1991.
10 February 1997
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Commonwealth of Australia 1996
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