Bills Digest 99 1996-97 Fisheries Legislation Amendment Bill 1996


Numerical Index | Alphabetical Index

WARNING:
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 Bill.

CONTENTS

Passage History

Fisheries Legislation Amendment Bill 1996

Date Introduced: 12 December 1996
House: Senate
Portfolio: Primary Industries and Energy
Commencement: On Royal Assent

Purpose

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 below.

Background

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 fisheries.

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 management.(3)

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.

Main Provisions

Schedule 1 - Amendments to the Fisheries Administration Act 1991

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 travelling allowance.

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 1991

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 financiers.(6)

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 section 31A(2)).

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.]

Warrants

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 time.

A receipt must be provided if something is seized under warrant or removed under new section 85E(1) (new section 85K).

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 86(4)).

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.

Penalties

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 units ($200).
  • 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 licence.(11)

Schedule 3 - Amendments to the Torres Strait Fisheries Act 1984

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)).

Endnotes

  1. 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.
  2. Ibid.
  3. Senate Standing Committee on Industry, Science, Technology, Transport, Communications and Infrastructure, Fisheries Reviewed, December 1993
  4. Bates, G Environmental Law in Australia, 4th ed, Butterworths, Sydney, 1995, p.245.
  5. 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).
  6. Second Reading Speech, page 2.
  7. see Fisheries Reviewed, op.cit.
  8. Ibid, p.31.
  9. Explanatory Memorandum, p.7.
  10. Second Reading Speech, Fisheries Legislation Amendment Bill 1996, p.5.
  11. Section 4, Fisheries Management Act 1991.

Contact Officer and Copyright Details

Jennifer Norberry
10 February 1997
Bills Digest Service
Information and Research Services

This Digest does not have any official legal status. Other sources should be consulted to determine whether the Bill has been enacted and, if so, whether the subsequent Act reflects further amendments.

IRS staff are available to discuss the paper's contents with Senators and Members and their staff but not with members of the public.

ISSN 1323-9031
Commonwealth of Australia 1996

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1997.

This page was prepared by the Parliamentary Library, Commonwealth of Australia
Last updated: 24 March 1997



Back to top


Facebook LinkedIn Twitter Add | Email Print
Back to top