Bills Digest No. 66 1999-2000 Fisheries Legislation Amendment Bill (No. 1) 1999

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
Purpose
Background
Key Issues
Main Provisions
Endnotes
Contact Officer and Copyright Details

Passage History

Fisheries Legislation Amendment Bill (No. 1) 1999

Date Introduced: 1 September 1999

House: House of Representatives

Portfolio: Agriculture, Fisheries and Forestry

Commencement: Schedule 1 commences on a day or days to be fixed by proclamation or failing that, six months after the Act receiving Royal Assent. Schedule 2 commences on a day or days to be fixed by proclamation subject to the Fish Stocks Agreement having entered into force.

Purpose

There are two main purposes to the Bill:

• to provide for more effective enforcement against foreign vessels and foreign nationals engaging in illegal fishing within Australian waters (Schedule 1), and
• to implement a range of legislative measures that will allow Australia to ratify the Agreement for the Implementation of the United Nations Convention on the Law of the Sea relating to the Conservation and Management of Straddling Stocks and Highly Migratory Fish Stocks (The 'Fish Stocks Agreement' or 'FSA') and participate in regional fisheries management organisations under the FSA (Schedule 2).

Background

Illegal fishing by foreign vessels in Australian waters

Under the United Nations Convention on the Law of the Sea (UNCLOS), Australia has the right to manage fisheries resources within our 200 nautical mile Exclusive Economic Zone (EEZ).(1) In exercising this right, Australia is obliged ensure that measures are put in place to ensure the 'maintenance' of the fisheries resources are not endangered by over-exploitation.(2) UNCLOS also provides that coastal nations (such as Australia) must give other nations access to fisheries resources within their EEZ if they do not have the capacity to 'harvest the entire allowable catch'.(3) However, the ability to attach a wide range of conditions on fishing effectively gives the coastal nation very broad discretion on granting access to foreign vessels.(4)

Management of Australian fisheries is undertaken both by the Commonwealth (Australian Fisheries Management Authority, AFMA) and the various State and Territory fisheries agencies. However, even for those fisheries not managed by the Commonwealth, AFMA retains legislative responsibility for foreign vessels, including illegal fishing.(5)

In the period from 1 March 1996 to 31 December 1998, Australia authorities apprehended 285 vessels suspected of illegal fishing inside Australia's EEZ.(6) The vast majority of these were Indonesian vessels apprehended by authorities operating patrols out of Darwin and Broome. Illegal incursions by Indonesia vessels into Australia's northern waters have been recognised as ongoing problem for many years and according to AFMA's 1997-98 annual report, are projected to persist at current levels for the immediate future.(7) The remaining apprehensions (23 in total) were of larger longline or trawl vessels of various nationalities, including three by the Navy off Australia's remote sub-Antarctic territory of Heard and McDonald Islands.

The United Nations Fish Stocks Agreement and regional fisheries cooperation

While some fisheries exist exclusively inside Australian waters, others extend to outside the EEZ into international waters (the 'high seas'). Such fisheries are termed either straddling stock fisheries, where the relevant target species 'straddles' a particular EEZ/High Seas boundary, or highly migratory species fisheries, where the migratory range of the target species covers a combination of high seas and more than one EEZ. Unfortunately, this UNCLOS/FSA definition of what constitutes a straddling stock fishery, while easy to understand in lay terms, is technically inadequate in view of the complex nature of fish aggregations and their life-cycles. The case is generally clearer with high migratory species - for example, virtually all tuna fisheries, include the Southern Bluefin, Western and Eastern tuna fisheries are examples of highly migratory species fisheries.

The management of straddling stock and highly migratory species fisheries are covered in UNCLOS. UNCLOS, which over 130 countries have ratified,(8) provides that all nations have the freedom to fish on the high seas subject to certain conditions. However, the relevant provisions are very broad with only rather general duties of cooperative management between nations in relation to straddling stock and highly migratory species fisheries. As such, they give little guidance on key issues such as determining and allocating sustainable levels of catch or how issues of high seas enforcement of management arrangements are to be handled. The failure of UNCLOS arrangements to prevent the collapse or severe depletion of a number of fisheries during the late 1980s and early 90s(9) lead to the negotiation of the FSA over 1993-95.

Key themes in the FSA include:

• for straddling and highly migratory species fish stocks, management measures on the high seas part of the fishery must be compatible with measures under 'national jurisdiction' (i.e. within EEZs)
• countries that have ratified the FSA ('FSA countries') must apply a precautionary approach to straddling and highly migratory species fish stocks, including cooperatively determining and applying stock-specific 'reference points',(10)
• for FSA countries, only those that are members of, or cooperate with, the relevant regional fish management organisations (RFMOs) or arrangements may fish the species or area covered by the RFMO or arrangement,
• as part of cooperative enforcement, RFMO members may board FSA-flagged vessels operating on the high seas in the area covered by the RFMO and take action if management measures appear to be breached. FSA countries whose vessels fish in these areas ('flag states') must also regulate their vessels through appropriate means, and
• FSA countries shall take measures to 'deter' fishing by countries that have not ratified the FSA where such fishing undermines the effective implementation of the FSA.(11)

59 countries have signed the FSA, but it is not yet in force, with only 24 of the required 30 ratifications received (See Attachment A). The necessary number of ratifications may be obtained by mid 2000.

In 1996, the then Commonwealth Minister for Resources and Energy established a Consultative Committee on High Seas and Remote Area Fishing. The principal focus of the Committee was to provide advice to the Commonwealth on the practical implementation of the FSA. Membership of the Committee includes Commonwealth Fisheries, Industry, Environment and Foreign Affairs Departments, a conservation NGO (WWF) and four industry representatives. The Committee developed an agreed policy framework for the implementation of the FSA. This framework is the basis for the proposed amendments to Commonwealth fisheries legislation as contained in the Bill.

Notwithstanding the fact that the FSA is not yet in force, a number of RFMOs are already operating in which Australia participates. These include the Southern Bluefin Tuna Commission(12) and the Indian Ocean Tuna Commission.(13) A Treaty covering tuna resources in the central and western Pacific is currently under negotiation.(14) Broader resource management bodies such as those under Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR)(15) also play very significant roles in fisheries management in their areas and thus would be considered RFMOs under the FSA. Less formal cooperative fisheries arrangements have also been developed in recent years, notably a 1998-99 MOU between Australia and New Zealand covering the Orange Roughy fishery on the South Tasman rise.(16)

The RFMOs mentioned above have had a mixed track record.

Australia recently took Japan, a member of the Southern Bluefin Tuna Commission, to the Law of the Sea Tribunal(17) as consequence of Japan's 'experimental fishing' program which went beyond what the Commission's member countries could agree to regarding quota allocations. The decision of the tribunal reinforced the duty of cooperation within RFMOs and from this perspective the existence of a regional management framework provided a positive result for Australia. Unfortunately, countries such as South Korea, Indonesia and Taiwan who also fish for Southern Bluefin Tuna remain non-members of the Commission, potentially weakening its effectiveness, although informal cooperation does take place.

Less formal arrangements such as the MOU on the Orange Roughy fishery on the South Tasman Rise rely more heavily on the good will of participating countries. Australia's experience with the South Tasman Rise highlights two issues. First, there has been a failure to agree whether in fact the South Tasman Rise fishery is in fact a 'straddling stock' fishery because of a lack of clear definition of the term in the FSA and of the seasonally shifting nature of the orange roughy stock. If it is a straddling stock, then once the FSA comes into force, those countries that have ratified the FSA and have interests in the fishery will be obliged to establish a RFMO or similar arrangement. If it is not, a much lesser degree of cooperation is required. Secondly, it is more difficult for flag States to exert effective control over their vessels fishing in the high seas where there is no RFMO or management arrangement backed up by a treaty since vessels may try and claim they are not actually violating any international law.(18)

Key Issues

Illegal fishing by foreign vessels in Australian Waters and the proposed amendments

The following section initially discusses illegal incursions into Australia's EEZ that have caused most concern in recent times - those of Indonesian vessels in the north and variously flagged ships in Antarctic and sub-Antarctic regions. This discussion is followed by an outline of the key elements of the proposals contained Fisheries Legislation Amendment Bill (No. 1) 1999 (the 'Bill') that are targeted at combating these incursions.

Historically, vessels from parts of the eastern Indonesian archipelago have fished remote reefs and other areas in what are now Australian waters. This was recognised by a 1974 MOU with Indonesia that authorised limited fishing operations by 'traditional fisherman' in Australian waters around the Cartier Island / Scott Reef area(19). However, the number and capacity of Indonesian vessels visiting the areas has significantly increased over the 1980s and 90s. Due to concerns about overfishing, the CSIRO has been contracted by Agriculture Fisheries and Forestry Australia and Environment Australia to undertake a study of the MOU zone and a smaller area to the north including Hibernia Reef. To address the problem of illegal incursions, Australia has increased the number of patrols in the area plus taken preventative steps such as organising visits to Indonesia by Australian fisheries authorities to educate fishers on Australian boundaries and the consequences of being caught. However, current tensions in the Indonesian region may present a challenge for continuing this level of cooperation.

The issue of illegal fishing in Australian waters off Heard and McDonald Islands is part of a wider problem in many areas within the CCAMLR zone. The main commercial fish is the Patagonian toothfish. Like many fish living in southerly cold waters, the toothfish is slow growing and slow maturing, meaning it is more difficult to replenish stock if it is overfished. The total catch set by CCAMLR members for both high seas and EEZs (including Heard and Macdonald Islands) is around 20,000 tonnes per year. By contrast, estimates of illegal fishing run at around 40,000t per year.(20) At the current level of legal and illegal fishing the population may possibly so severely depleted that within the next two years the species will be commercially extinct.(21)

As have other nations, Australia has sent naval patrols down to the area which has resulted in some arrests, but the remoteness of the area makes patrolling costly and difficult. Australia has been prominent in diplomatic efforts to improve cooperative surveillance and make it more difficult to trade illegally caught fish. Possible measures that have been discussed amongst CCAMLR members include:

• introduction of catch certification schemes, and other 'market state' controls, to prevent trade in illegally caught fish,
• the mandatory use of Vessel Monitoring Systems (VMS) on all vessels licensed to fish in the CCAMLR Area or in areas adjacent to it,
• the introduction of controls to deny non-emergency port access to vessels engaged in illegal or unregulated fishing, and
• stronger legal controls over nationals of CCAMLR Parties to prevent them engaging in illegal and unregulated fishing.

An extraordinary meeting of the CCAMLR nations has been called for October 1999 in an effort to get Ministerial-level endorsement to a package of measures.

Turning to the proposals contained in the Bill, they contain four main elements to combat illegal foreign fishing.

The first, and potentially most far reaching, is changing the current conviction-based scheme for illegal foreign fishers to one which is based on the automatic forfeiture of vessels, gear and catch of illegal foreign fishers apprehended in Australian waters. The new scheme mirrors proposed arrangements under the Border Protection Legislation Bill 1999(22), which will allow the detaining, forfeiture, seizure of ships and aircraft used in people smuggling operations. Under the proposed amendments to the Fisheries Management Act 1991 (Fisheries Management Act), the onus will be placed on foreign fishers to establish their legitimacy for being present in the Australian Fishing Zone (AFZ)(23) without authorisation. The Bill details requirements for due process including the issuance of notices of seizure and how persons whose vessels, gear or catch are forfeited may apply to a court to overturn forfeiture.

An interesting point is that these automatic forfeiture provisions not only apply to foreign vessels undertaking commercial fishing without an appropriate licence etc but also foreign vessels (of any description) engaging in recreational fishing. Thus it would appear that a visiting cruising yacht could be seized by fishing authorities if its occupants catch even a single fish for immediate consumption.(24) If this interpretation is correct, the question arises whether AFMA have in place guidelines to assist relevant authorities in exercising their discretion in relation to the automatic forfeiture regime for recreational fishing by foreign vessels.

Secondly, there is an explicit provision in the Bill for the automatic forfeiture regime for foreign fishers to prevail over the Admiralty Act 1988. This is to ensure that Australian enforcement actions are not frustrated by third parties such as foreign mortgagees as happened in the case of the Aliza Glacial. The Aliza Glacial, a modern vessel valued at around $9 million was apprehended for illegal fishing off Heard-Macdonald Islands in October 1997. An action brought by the mortgagee in the Admiralty Court before a conviction could be obtained against its Skipper and Fishing Master resulted in the release of the vessel to the mortgagee shortly thereafter.

Thirdly, the proposed amendments strengthen the powers of fisheries officers to detain and deal with illegal foreign vessels. For example, they will have explicit powers to use reasonable force when requiring a boat to stop, consistent with international law, to apprehend foreign boats suspected of illegal fishing.(25) Such force could include firing at or into a ship after appropriate warning shots have been fired and using devices to stop propulsion of the boat. Action will also be possible against motherships operating outside the Australian waters and supporting illegal fishers within the AFZ.(26)

Finally, monetary penalties for illegal foreign fishing will be doubled, with the top penalty rising to $550 000.(27)

Implementation of the Fish Stocks Agreement: The impact on fisheries management within Australian Waters

Although the focus of the FSA is regional cooperation on high seas, Articles 5, 6 and 7 of the FSA apply to waters within 'national jurisdiction'. The possible future ratification(28) of the FSA by Australia and legislative implementation through the Bill will therefore have potential implications for AFMA's fisheries management within the EEZ. Given State and Territories fisheries agencies do not generally have management responsibility for commercially important straddling stock or highly migratory species the direct impact of the FSA on these agencies is likely to be relatively limited.(29)

Article 5 of the FSA sets out general principles of good fisheries management and is sufficiently broad that it is unlikely to have a major impact on AFMA or Australian fisheries operations.

Article 6 of the FSA, application of the precautionary approach, specifies that amongst other things, FSA countries must determine, on the best scientific information available, stock-specific reference points, and apply these to straddling stock and highly migratory species through their range. Amongst other things, reference points set limits for fishery catches to ensure that stock populations do not fall under what is required for sustainable fishing yields.

These reference points will presumably be developed through RFMOs or similar cooperative arrangements. Since they apply throughout the relevant species range, they will need to be incorporated into AFMA plans of management and consequently the operations of those Australian fisheries that harvest straddling stock and highly migratory species. To allow for the existing statutory and administrative processes applying to alterations in such plans of management, the Bill provides that AFMA has twelve months to incorporate reference points and any other measures agreed by RFMOs into its plans of management.(30)

It is worth noting that given Australia is likely to be a major player in any RFMOs responsible for setting regional reference points across straddling stock or highly migratory fisheries, it is unlikely that the RFMOs, which are generally based on consensus decision-making, will take decisions that are strongly at variance with AFMA management principles or AFMAs capability to adjust to a more regional approach(31). However, there may be resource costs. For example, AFMA may have to increase its data collection capability to ensure stock reference points are not being exceeded in Australian straddling stock and highly migratory species fisheries. It will be interesting to see if the application of stock references points to management operations becomes a more widespread phenomena in Australian fisheries, both at Commonwealth and State/Territory levels.

The Bill also proposes to introduce a new objective into the Fisheries Management Act. That Act currently has two sets of objectives. The first set, which are listed in s.3(1), provides that:

One of these objectives, s.3(1)(c), is 'maximising economic efficiency in the exploitation of fisheries resources'.

The new objective proposed by the Bill is to go into the second list. This second list provides that

Specifically, the proposed new objective in s.3(2) is

According to the Explanatory Memorandum, the addition of this new objective is to

An instance where such inconsistency may conceivably arise is in the CCAMLR area, where access to fish resources is through 'first in, best dressed'(33) quotas, which may not be the most economically efficient method of management.

However, it is unclear whether the proposed insertion of the new objective will overcome the possibility of a legal challenge. On the face of it, the requirement to have 'regard to' in s.3(2) might be construed in plain English to be subordinate to 'must be pursued' in s.3(1). On the other hand, there is legal precedent to say that AFMA and the Minister have discretion about the weight they choose to place on the various s.3(1) objectives in reaching a decision and thus it is likely only completely ignoring the 'economic efficiency' objective would invalidate a decision.(34) In addition, the Administrative Appeals Tribunal has appeared to say that the objectives in s.3(1) and s.3(2) can in effect be grouped together as one set of objectives.(35) If so, the prefaces of 'must be pursued' and 'have regard to' may not imply a dominant/subordinate relationship. Nonetheless it is not certain that the proposed amendment achieves the aim stated in the Explanatory Memorandum and therefore may need further consideration.

Australia's responsibilities for regional cooperation under the Fish Stocks Agreement

As previously mentioned, the emphasis of the FSA is on regional cooperation. One of the major aspects of this is that Australia must cooperate in implementing whatever measures are agreed by RFMOs, including through compliance enforcement. The major obligations under the FSA in this regard seem well covered under the provisions of the Bill. These obligations include

• participation in cooperative enforcement on the high seas, and as part of this, boarding vessels operating in the area covered by the RFMO and taking appropriate action if management measures appear to be breached
• licensing all Australian vessels operating on the high seas, including requirements for marking vessels and gear in accordance with international specifications and requiring fishers to maintain catch records and report on catches of target and non-target species
• in cases where its Australian vessels are reasonably believed to have violated RFMO management measures, Australia must also investigate the allegation and take enforcement actions or authorise an another FSA country to do so,(36) and
• where Australian vessels have been convicted of RFMO violations but sanctions have not yet been complied with(37), Australia must prevent the vessel from continue operating in the RFMO area.

The impact of the Fish Stocks Agreement on Australia vessels operating on the High Seas

Countries that have not ratified the FSA will not be obliged to require their vessels fishing on the high seas to operate to same the regulatory standards as Australian vessels should Australia ratify the FSA.

This raises the issue of competitive disadvantage for Australia vessels. Obviously it would be counterproductive if ratification of the FSA by Australia resulted in Australian vessels reflagging under a non-FSA State register. However, the issue of compliance costs such as carrying a VMS and abiding by measures designed to reduce bycatch have been discussed in the High Seas and Remote Area Fishing Consultative Committee. There appear to be no obvious indications from the Australian Industry Seafood Council (ASIC) or other parts of the fishing industry that such costs would cause significant numbers of boats to reflag.

A related issue is the question of legislating to make it an offence under Australian law for Australian nationals to work on unlicensed foreign boats operating in RFMO areas. While the FSA does not require countries to pass laws on this matter, this was an option considered in the Bill's regulatory impact statement. It was not included in the Bill apparently due to the perceived costs to both industry and government and the difficulty involved in monitoring the presence of Australians on foreign boats.(38)

Cost sharing in implementing the Fish Stocks Agreement

A significant concern to the fishing industry in relation to the FSA is the cost of implementation.

According to the Regulatory Impact Statement (RIS) accompanying the Explanatory Memorandum, 'essential costs' for implementation of the FSA as proposed in the Bill and participation in relevant RFMOs total $3,348,262, of which $3,313,702 are annual costs. Over 95% of those costs are to be initially borne by the Government, and mainly relate to membership fees for RFMOs and government staff and travel costs associated with participation in the RFMOs.

The RIS also lists annual 'optional costs' of $1,828,000. $648,000 of these costs are earmarked for industry contributions to cover the cost of observers,(39) with the remaining $1,180,000 being funded by Government for patrolling functions in RFMO areas. It is unclear what industry's or the Government's position is on these so-called optional costs. However, it is appears that the cost to industry may increase over time, given that the RIS says:

Conservation Status of Straddling and Highly Migratory Species Stocks

There are concerns about the depleted levels of the Patagonian Toothfish, Orange Roughy (Straddling Stocks) and the Southern Bluefin Tuna (Highly Migratory Species).

There have been proposals from two conservation groups, Humane Society International (HIS) and Greenpeace, for the Commonwealth Government to nominate the Southern Bluefin Tuna, Orange Roughy and Patagonian Toothfish for listing on Appendix II of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) at the CITES meeting in the year 2000. In November 1998 the Minister for the Environment and Heritage, Senator the Hon Robert Hill, and the Minister for Agriculture, Fisheries and Forestry, the Hon Mark Vaile, stated that if CCAMLR is not prepared to move on Australia's proposals to stop illegal fishing of the Patagonian Toothfish, Australia will 'assess a role for other international fora such as the CITES convention'.(41)

The CITES convention was agreed to in 1973 to protect wildlife against such over-exploitation and to prevent international trade from threatening species with extinction. Species placed in Appendix II are those which might become endangered if trade in them is not controlled and monitored 'in order to avoid utilisation incompatible with their survival'. Listing on Appendix II of CITES does not mean that commercial fishing would be banned on that the trade in the products of such a fishery but that they be regulated under the CITES convention. The export of products of such species would require a management plan to be developed under and approval of exports under the Wildlife Protection (Regulation of Exports and Imports) Act 1982 in a similar manner to the export of kangaroo products.

Earlier this year ABARE issued a research report on the effectiveness of listing southern bluefin tuna on Appendix II of CITES, from an economic perspective. The report concluded that, while such a system, implemented with Japan's full participation, could offer possible solutions, the major problem would be if Japan were to place a reservation on the listing then the CITES based management system would be fundamentally flawed.(42) Greenpeace responded to this report stating the main conclusion and the methodology used to arrive at it are flawed and that the usefulness of the report is limited because it did not consider all options for dispute resolution if Japan continues to refuse to cooperate with Australia and New Zealand in the SBT fishery management under the CCSBT.(43) ASIC oppose a CITES listing.(44)

Greenpeace and HIS have also called for the southern bluefin tuna to be declared an endangered species under the Endangered Species Protection Act 1992 (now part of the Environment Protection and Biodiversity Conservation Act 1999). The consequence of declaring a fish species as endangered would be to trigger the development and implementation of a recovery plan for the species. The effect of the plan on the commercial fishery for that species would depend on the particular circumstances, but presumably there would be some material effect, such as a significant reduction in quota or even a temporary closing down of the fishery. (if any)

Main Provisions

Schedule 1 - Enforcement

Item 2 inserts a new paragraph 84(1)(aa) into the Fisheries Management Act which clarifies and extends the powers of fisheries officers to stop a boat for the purposes of boarding and inspection and for escalation to the use of reasonable force against a foreign fishing vessel should it not stop

Item 8 inserts new subsections 84(1B-1D) into the Fisheries Management Act to confirm the validity of Australian fisheries officers' powers when a fishing vessel apprehended in the waters surrounding Australia's external territories is in transit across the high sea en-route to a mainland port for further investigation.

Item 10 amends new section 99 into the Fisheries Management Act to double the penalty for foreign fishing offences involving recreational fishing in the AFZ to 250 penalty points ($ 2 750).

Item 13 inserts a new section 100A into the Fisheries Management Act creating a new offence, with a maximum fine of 5000 penalty units ($550 000), relating to the use of a foreign boat for fishing in the AFZ.

Item 15 inserts a new section 101A into the Fisheries Management Act creating a new offence with a maximum fine of 5000 penalty units relating to having a foreign boat equipped for fishing in the AFZ.

Item 17 inserts a new section 101B into the Fisheries Management Act relating to the use of support boats (motherships) outside the AFZ to support foreign fishing within the AFZ. It enables enforcement action, including boarding, against support boats. It also creates a new offence with a maximum fine of 5000 penalty units. Support boats will also be subject to automatic forfeiture under a new section 106A.

Item 18 inserts a new paragraph 84(1)(ga) into the Fisheries Management Act which confirms the power of officers to seize boat/net, trap or other equipment/fish which have been automatically forfeited to the Commonwealth (under a new section 106A), or which the officer has reasonable grounds to believe have been forfeited, as a result of illegal fishing in the AFZ by foreign boats or support of the illegal activities of these boats.

Item 23 inserts several new subsections (s106A-106H) into the Fisheries Management Act that form the basis of the automatic forfeiture regime. The main sections are listed below.

Section 106A which sets out the offences for which the automatic forfeiture regime may apply. These include the offences created or amended by items 10,13,15 and 17.

Section 106C specifies the details of the processes for issuing written notice of the seizure and the contents of such written notices. The notice will specify that the thing seized will be condemned as forfeited unless a claim is made within 30 days.

Section 106D specifies the circumstances under which the Australian Fisheries Management Authority (AFMA), on behalf of the Commonwealth, may undertake rapid disposal or destruction of seized boat or catch prior to possible court action by the claimant. These circumstances include unseaworthiness of the boat, and serious quarantine or environmental risks.

Section 106E provides that if a claim by the owner or custodian for the vessel or other property seized on suspicion of a relevant offence is not received by the AFMA Director for the items within 30 days after issue of the notice of seizure the seized things are forfeited to the Commonwealth.

Section 106F sets out the responsibilities of the Managing Director of AFMA in responding to any claim received. The Managing Director may give the claimant a notice allowing the claimant two months to institute action for recovery or to overturn the forfeiture.

Amongst other things, Section 106G provides for compensation to the owner or custodian of seized property if a court would have ordered their return but for the fact that they have already been destroyed or disposed by the Commonwealth.

Item 26 inserts a section 108A into the Fisheries Management Act provides that the automatic forfeiture provisions of the Act to prevail over the Admiralty Act 1988.

Schedule 2 - Implementing the Fish Stocks Agreement

Item 1 inserts paragraph 6(ba) into the Fisheries Administration Act, adding a further objectives of the Australian Fisheries Management Authority (AFMA) a further objective of ensuring the utilisation of fish stocks (including target, non-target and ecologically related species) both on the high sea and within the AFZ is carried out consistently with international agreements.

Items 2 and 3 add paragraphs 7(aa) and 7(ga) into the Fisheries Administration Act which adds new functions of the AFMA regarding providing for international cooperation in the management of fish stocks.

Item 6 inserts a new paragraph 3(2)(c) into the Fisheries Management Act is similar to item 1 of Schedule 2 in that it adds a new objective which AFMA must have regard to in the administration of the Act. This may enable AFMA to possibly avoid legal challenge when implementing measures developed in regional fisheries and other international fora that may possibly be inconsistent with other objectives such as maximising economic efficiency (however see discussion of this point in key issues: Implementation of the Fish Stocks Agreement: the impact on fisheries management in Australian Waters).

The effect of Items 17-19 on the Fisheries Management Act are to extend the application of the Act to provide for regulation, monitoring and inspection of high seas fishing

Item 21 inserts a new section 16A into the Fisheries Management Act that provide where it is established that an Australian boat has been involved in a serious violation of a high sea conservation measure that vessel should not fish on the high sea until any penalty imposed has been discharged.

Item 22 inserts a new subsection 17(5C) into the Fisheries Management Act requires the inclusion in fishery management plans of stock specific reference points being a key component of the precautionary approach. This goes towards assisting that the same fisheries management principles shall be applied to the management of a straddling and highly migratory fish stock by both AFMA and regional organisations.

The effect of Item 23 is to allow a year for the inclusion in existing plans of management stock-specific reference points for relevant fisheries.

Item 32 inserts a new section 42A into the Fisheries Management Act which makes it a condition on high sea fishing concessions (licenses) issued by AFMA to facilitate boarding and inspection by foreign fisheries officers from a FSA country for the purposes of checking compliance with regional management measures. The inspecting officers should act in accordance with the procedures outlined in Article 22 of the FSA. Failure to cooperate and facilitate an inspection by foreign officials' can lead to suspension of the fishing concession.

Item 37 inserts several subsections (s87A-87J) into the Fisheries Management Act to provide Australian fisheries officers with powers on the high seas and elsewhere appropriate to implementing FSA State responsibilities regarding compliance and enforcement articles of the FSA. These include boarding, inspecting and requiring vessels suspected of RFMO violations to proceed to a Port for further investigation. It includes the provision that an officer's use of force must not be more than is reasonably required.

Item 46 inserts several new subsections (s105A-105G) into the Fisheries Management Act that create or relate to offences outside of the Australia EEZ. The main sections are listed below.

A new s105A is inserted which creates a new offence provision for an Australian flagged fishing boat taking, or having possession of, fish on the high sea, which is not authorised by a fishing concession or scientific permit. This item implements a duty of Australia as a flag State.

105B makes it an offence for Australian flagged fishing boats to be on the high seas without a fishing concession or scientific permit. This item implements a duty of Australia as a flag State.

105C makes it an offence, under Australian law, for an Australian flagged fishing boat to conduct unauthorised fishing in the waters under the jurisdiction of a foreign country. It is envisaged that Australia shall monitor the activities of its fishing boats outside the AFZ through VMS so that boats do not illegally fish in other countries fishing zones. This item implements a duty of Australia as a flag State.

105D allows for authorisation to be given to foreign official to exercise further powers under their law following a high sea boarding and inspection of an Australian fishing boat. Following Australia being informed that there are grounds for believing that the boat has committed a high sea fishing offence, AFMA may authorise the foreign country to undertake further investigations involving possibly direction of the boat to an appropriate port for further investigation. Alternately, on this advice AFMA may respond through initiating an investigation and keep the inspecting State informed of the findings and any action taken.

Sections 105E-G provide where Australia has inspected and investigated such a FSA boat on the high seas the flag State may authorise Australia to take enforcement action. This provision makes it an offence under Australian law for boats fishing either without authorisation from their flag-State or in contravention of regionally agreed measures on the high seas. These offences can only be applied with consent of the flag State. To allow for the authority to be given within Australian jurisdiction and to ensure that such prosecution action is consistent with international law and the FSA, the consent to proceed to a hearing and determination rests with the Attorney-General.

Endnotes

2. With the exception of Antarctica, an EEZ also surrounds our Australia's external territories, such as Heard and McDonald Islands in the south and Christmas Island in the north.

3. See Article 61(2) of UNCLOS.

4. See Article 62(2) of UNCLOS.

5. See Article 62(4) of UNCLOS.

6. Fisheries Management Act 1991 s. 77

7. Government members brief on Fisheries Legislation Amendment Bill (No. 1) 1999, p 5.

8. Further background on the issue can be found in the Commonwealth Ombudsman's 1998 report: Administrative arrangements for Indonesian fishermen detained in Australian waters. http://www.comb.gov.au/publications/special_reports/IndonesianFishrmn.html

9. Including Australia.

10. Examples include the northwest Atlantic Cod fishery and the Bering Sea Pollack fishery.

11. 'Reference points' set limits for fishery catches to ensure that stock populations do not fall under what is required for sustainable fishing yields.

12. Under international law, only those countries that have formally ratified a treaty or convention are legally bound by its terms. Thus FSA countries cannot directly prohibit non-FSA countries from fishing straddling and highly migratory species stocks even when such fishing is inconsistent with RFMO measures.

13. This was actually set up under the Convention for the Conservation of Southern Bluefin Tuna which has been in force since 1994. Australia, Japan and New Zealand have all ratified the convention but Indonesia, Korea and Taiwan who are significant fishers of bluefin tuna have not and hence are outside of the management framework established by the Commission.

14. This was created in 1996.

15. Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific

16. In force since 1982.

17. This lapsed early in 1999 following disagreement between Australia and New Zealand over allocation of the catch quota between the two countries.

18. The Tribunal was established as a dispute resolution body under UNCLOS.

19. A spokesperson for the company operating the South African registered vessels fishing the high seas portion of the Southern Tasman Rise fishery in July this year reportedly claimed that they were 'breaking no law' in doing so. Andrew Darby, 'Foreign trawlers raid local fishery' The Age 24 July 1999 p 17.

20. MOU between the Governments Of Australia and Indonesia regarding operations of Indonesian traditional fisherman in areas of the Australian Exclusive Fishing Zone and Continental Shelf signed 7 November 1974.

21. Andrew Darby, 'Move to tackle pirate fishing' The Age 17 August 1999 p 7.

22. Senator the Hon R. Hill Media Release 16 August 1999

23. Introduced into the House of Representatives on 22 September 1999

24. The outer limits of the AFZ are the same as the EEZ in all but a few instances, notably in relation to Antarctica. Thus for general descriptive purposes of the limits of national jurisdiction the two are fairly interchangeable. The term dates from 1979. Australia did not declare an EEZ until 1994 when it ratifies UNCLOS.

25. This conclusion is reached reading s. 99 of the Fisheries Management Act 1991 and the proposed ss. 106A and 106B in the Bill.

26. Proposed s. 84(1)(aa) in the Bill.

27. Proposed s.101B in the Bill.

28. 5,000 penalty units. 1 penalty unit = $110.

29. Note that at this stage a National Interest Analysis has yet to be done for the FSA. The FSA is due to be considered by the Joint Standing Committee on Treaties in October.

30. 'Australia's Ratification of the UNIA; implications for ratification of the UNIA within the AFZ', Discussion Paper prepared for the High Seas and Remote Fishing Consultative Committee, March 1999

31. See Item 23 of Schedule 2 of the Bill.

32. This view is also supported by Article 7. Article 7 provides there should be compatibility between the conservation and management measures in place in the national jurisdiction and high seas areas but that cooperation between states should be without prejudice to the sovereign rights of Coastal States in managing there marine resources.

33. See page 36 of the Memorandum.

34. These are often termed 'competitive quotas' because a quota is set for a particular area and then it is open to all vessels to competitively fish the area until the total quota is filled. This contrasts to a situation where a quota allocation is awarded to a particular vessel, company or country.

35. AFMA vs PW Adams (1995) 61 FCR 314 at 332

36. PW Adams v AFMA (unreported) No. N95/1548 AAT No. 11626 paragraphs 9 and 22-25 http://www.austlii.edu.au/au/cases/cth/aat/unrep6586.html

37. Most commonly this would be where a FSA country, patrolling the high seas close to its EEZ boundary, boards an Australian vessel suspected of violating RFMO management measures.

38. Such as the paying of a fine.

39. See page 18 of the Explanatory Memorandum.

40. Observers would be placed on a proportion of Australian vessels operating on the High Seas to ensure compliance with relevant management measures agreed under RFMOs.

41. Explanatory Memorandum, p 21.

42. Senator the Hon Robert Hill and the Hon Mark Vaile Australia Gains Action on Antarctic Illegal Fishing Joint Media Release 6 November 1998

43. Cox A, Stubbs M and Davies L Southern Bluefin Tuna and CITES (Convention On International Trade in Endangered Species of Wild Flora and Fauna) - An Economic Perspective. ABARE Research Report 99.2, 1999

44. 'Breaking the Deadlock in the Management of the Southern Bluefin Tuna Fishery' Waves vol 6(1) Autumn 1999 pp 6-7.

45. ASIC submission to Environment Australia concerning proposal for CITES listing, December 1998.

ATTACHMENT A - Status of Fish Stock Agreement

Source: Webpage of the United Nations Division of Oceans Affairs and Law of the Sea
http://www.un.org/Depts/los/los164st.htm Current as at 10 September 1999.

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