Bills Digest No. 109  1999-2000 Fisheries Legislation Amendment Bill (No. 2) 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
Main Provisions
Endnotes
Contact Officer and Copyright Details

Passage History

Fisheries Legislation Amendment Bill (No. 2) 1999

Date Introduced: 8 December 1999

House: House of Representatives

Portfolio: Agriculture, Fisheries and Forestry

Commencement: The operative provisions of the Bill (Schedules 1 and 2) commence on a day or days to be fixed by proclamation, or failing that, six months after receiving Royal Assent.

Purpose

To amend existing Commonwealth fisheries legislation, particularly in relation to the operation of foreign fishing boats, requirements for fishery management plans, record keeping, and increased penalties for a range of offences.

Background

Foreign fishing boats

The Fisheries Legislation Amendment Act (No.1) 1999(1) (the 'FLA Act 1999') introduced some significant provisions for both combating illegal foreign fishing in the Australian Fishing Zone (AFZ) and implementation of Australia's international obligations under the UN Fish Stocks Agreement (FSA).(2) (3)The Fisheries Legislation Amendment Bill (No.2) 1999 (the Bill) proposes to supplement these measures in two main areas. First, it will provide AFMA with explicit legislative authority to make regulations to place observers on foreign fishing boats operating in international waters outside of the Australian Fishing Zone (AFZ). Second, it will widen the definition of 'foreign fishing boat' to potentially enable Australian authorities to regulate port access by support vessels(4) and vessels not originally designed for fishing but subsequently equipped to do so.

Under the FSA, States that are parties to regional fisheries organisations and arrangements must agree to, and abide by, measures for the conservation and management of straddling or migratory stocks.(5) To assist in ensuring compliance with these measures, the FSA allows for the placement of observers on fishing vessels operating within the area covered by the regional framework, including in international waters. In fact the Australian Fisheries Management Authority (AFMA) has already taken similar action under another convention, having placed research observers on New Zealand boats fishing for Patagonian Toothfish in international waters adjacent to the (Australian) Heard Island and Macdonald Island (HIMI) Fishery.(6) It is understood that AFMA has authorised such placements principally under paragraph 7(e) of the Fisheries Administration Act 1991 (the FA Act 1991), which states that

[AFMA has the following functions]...to establish priorities in respect of research relating to fisheries managed by [AFMA] and arrange for the undertaking of such research.

This authorisation clearly relies both on the observer having a research (as opposed to compliance) function and the data obtained in international waters being directly relevant to the operation of an AFMA managed fishery. Given the international trend to greater regulation of fishing in international waters and Australia's participation in compliance efforts in our region, there is an obvious need for the proposed amendment so as to provide AFMA with a flexible basis for placing observers on foreign boats outside the AFZ. It is worth noting in passing that, once the FLA Act 1999 is in force, observer placements for compliance purposes under regional fisheries arrangements would be clearly supported by the new AFMA functions paragraphs 7(ga) and 7(ma). (7)

Regarding the second proposed amendment, AFMA currently has some ability under section 94 of the Fisheries Management Act 1991 (the FM Act 1991) to regulate access to Australian ports by foreign fishing boats that are not licensed to fish in Australian waters. It does so by granting - or not granting - permits to such boats to enter and depart from Australian ports when the boats are travelling to or from places outside of the AFZ. Any permits issued may impose conditions on the holder of the permit.

In terms of the issue underlying the proposed amendment contained in the Bill, the existing narrow definition of 'foreign fishing boats' in subsection 94(8) of the FM Act 1991 does not cover support vessels or vessels not originally designed for fishing but subsequently equipped to do so. It is thus beyond AFMA's ability to regulate these boats' movements under section 94. The Minister's second reading speech(8) implies that this inability may handicap Australia's efforts to ensure fishing in international waters does not 'undermine' regional conservation and management measures.

This issue is directly relevant to the current dispute between Australia and Japan over Southern Bluefin Tuna fishing. In response to quota disagreements arising in 1998 between Japan and the other members of the Southern Bluefin Tuna Commission (Australia and New Zealand), Australia adopted a policy 'ban[ning] Japanese fishing vessels from our ports'.(9) While there appears to be no obvious statement on the public record about the legal means used to implement the ban, it is understood to have been done by making it known that no section 94 permits or section 34 foreign fishing licences would be issued to such vessels.

However, except in some limited situations, there is some doubt whether section 94 is an appropriate tool for implementing Australian international fisheries policy. This is because the FM Act 1991 states the purpose of issuing port access permits is to enable 'monitoring [of the] movements of foreign fishing boats'.

While the FM Act 1991 can apply in international waters to Australian citizens, corporations and boats registered in Australia, the focus of both it and the FA Act 1991 as currently in force is on Australian domestic fisheries. On balance, it is therefore reasonable to assume that the section 94 'monitoring' relates to fishing and navigating activities directly connected with Australian waters and not international waters. In the case of the Southern Bluefin Tuna issue, a link can possibly be made to Australian fisheries since, as a highly migratory species, Japanese fishing in international waters impacts upon the stock available to be fished in Australian waters. However, even with such a linkage, if, on receiving a section 94 application, AFMA actually refused to grant a permit or imposed prohibitive conditions on the permit for reasons solely relating to the vessel's activities in international waters, it is far from clear that such action would be legally consistent with the 'monitoring' purpose of section 94 and therefore could give rise to the possibility of an application under the Administrative Decisions (Judicial Review) Act 1977.(10)

A different view is that AFMA has absolute discretion in what it chooses to take into account in considering a section 94 application. However, while this may have been valid under the equivalent provision in the Fisheries Act 1952(11) which said nothing about the purpose of the permits, the fact that the drafters of the FM Act 1991 saw fit to include a purpose might seem to indicate that section 94 was not intended to be a 'catch-all' policy instrument.

Another contrary view runs along the lines that if the granting of a port access permit would assist the non-sustainable harvesting of fisheries resources in international waters, AFMA must refuse the permit. This argument relies on paragraph 3(1)(b) of the FM 1991, which says in part

the following objectives must be pursued by the Minister in the administration of this Act and by AFMA in the performance of its functions...ensuring that the exploitation of fisheries resources and the carrying on of any related activities are conducted in a manner consistent with the principles of ecologically sustainable development and the exercise of the precautionary principle...

There is no evidence that 'fisheries resources' in paragraph 3(1)(b) should be interpreted to include resources in international waters unless they have a ecological connection with Australian fisheries. The meaning of paragraph 3(1)(b) was considered by the Federal Court in Bannister Quest v AFMA (1997) 77 FCR 503 at 525-6. While the issue of international waters was not directly relevant to the decision in that case, Drummond J did review the Government's statements on the intent of paragraph 3(1)(b). His Honour stated:

What the legislature sought to achieve by charging AFMA with the duty to pursue 3(1)(b) emerges quite clearly from the Minister's Second Reading Speech and the "New Directions" policy statement... the Minister...stated that the legislation would give effect "to the three objectives of fisheries management identified in the policy statement", the first of which was:

  • to ensure that fisheries resources are not over-exploited and that any exploitation is at a level which can be sustained while maintaining the surrounding environment.

The Minister made the following further comment on the first objective:

'The first of these objectives concerns the conservation of the resource, and more generally, the conservation of the marine environment. The Government regards the protection of fisheries from over-exploitation as a matter of the utmost importance. ... Put simply, the Government believes it has a duty to the community to ensure that the nation's resources are protected and preserved so that future generations can continue to benefit from them'. (italics added by author)

A reading of the policy statement shows that statutory objective 3(1)(b) is confined to achieving these same limited aims...

The above would therefore seem to imply that the imposition of a positive duty of the protection of international fisheries resources on the Minister or AFMA was not intended by paragraph 3(1)(b) unless a clear link can be made to back to Australian fisheries.(12)

In summary, it may be appropriate to consider amending subsection 94(1) to remove any doubt over the width of AFMA's discretion to grant section 94 permits.

Fisheries management plans

Sections 17-20 of the FM Act 1991 set out AFMA's obligations regarding the development of management plans for Commonwealth fisheries. Since amendments introduced in 1997,(13) AFMA has been required to develop such plans unless it determines plans of management are 'not warranted'.

Fisheries for which a plan of management are in place include Southern Bluefin Tuna, Northern Prawn, Great Australian Bight Trawl and South East Trawl. Plans of management are in preparation for the Southern Shark, Eastern Tuna & Billfish, Southern Tuna & Billfish, South East Non-trawl and Bass Strait Scallop.

The most recent determination by AFMA regarding fisheries where management plans have been deemed unwarranted dates from July 1998. Fisheries on this list are: Cocos (Keeling) & Christmas Islands, Coral Sea, East Coast Deep Water Trawl, Norfolk Island, North West Shelf, Heard Island & McDonald Island (HIMI), Jack Mackerel, Macquarie Island Developmental, Southern Squid Jig, Western Tuna & Billfish, and Torres Strait.

It is understood that the July 1998 list is being reviewed and a number of fisheries may be removed and management plans developed. Although AFMA has not released any details of the review, some of the possible candidates for removal could include the Western Tuna & Billfish, East Coast Deep Water, HIMI and Macquarie Island fisheries.

Looking at the proposed amendments in the Bill, most relate to relatively minor procedural issues. However, the proposed change to section 17(6D) in the FM Act 1991 relating to 'incidental catch' of fish and non-fish species is potentially significant. It is essentially a rewording of the current section 17(6D). The rationale for the change is that the current wording technically requires a fisher to reduce to a minimum any 'non target' species caught even if a catch of that species was authorised under the relevant fishing permit .(14)

The problem with the proposed new section 17(6D) is that, due to definitional issues, it doesn't appear to reflect at least the spirit of the 1999 National Policy on Fisheries Bycatch. The Bycatch Policy, which has been agreed to by all Governments, including the Commonwealth, provides that implementation actions should aim to 'ensure the widest adoption of bycatch mitigation measures'. While the Commonwealth has yet to release its detailed implementation plan,(15) there seems no reason why section 17(6D) shouldn't be fully consistent with the definitional terms used in the Bycatch Policy in relation to 'incidental catch' and 'bycatch'.

The proposed new subsection 17(6D) reads:

A plan of management for a fishery must contain measures directed at reducing to a minimum:

(a) the incidental catch of fish not taken under and in accordance with that plan; and

(b) the incidental catch of other species.

The term 'incidental catch' is not defined in the current FM Act 1991 or the proposed amendment. In the Bycatch Policy, it is defined quite narrowly as 'non-targeted catch which is commercially valuable and is retained by fishers'. On the other hand, 'bycatch' is given a wider meaning in the Policy as including species either discarded back into the water or not landed but killed as a result of interaction with fishing gear.

The end result is that if incidental catch under 17(6D) is interpreted in line with the Policy, it is doubtful whether AFMA will have any legal obligation to include measures aimed at reducing discards, harmful gear interaction etc in their plans of management. Notwithstanding the delay in releasing the Commonwealth implementation plan, consideration could thus be given to clarifying the matter by revising the proposed section 17(6D). This could possibly be done, for example, by having another paragraph added after 17(6D)(b) along the lines of the following:

(c) any species not landed but killed as a result of interaction with the fishing gear.

'Incidental catch' could also be defined for the purposes of the legislation, eg as 'including species caught but not retained due to regulatory or commercial reasons'. The effect of these additions would be that AFMA must include in plans of management measures aimed at addressing a wider range of bycatch issues than currently required.

Record Keeping

Section 42 of the FM Act 1991 provides that fishers are required to record data on fish caught under their licensing provisions. While the situation varies from fishery to fishery, in more recent years AFMA has promoted the practice amongst fishers of keeping records on by-catch. However, given the limited scope of section 42, AFMA does not have explicit legal ability to make regulations in relation to by-catch records covering non-fish species such as seabirds. The proposed amendment to paragraph 14(2)(c) provides this authorisation.

Main Provisions

Schedule 1 - Amendment of the Fisheries Administration Act 1991 (FA Act 1991)

Item 1 replaces existing paragraph 7(da) of the FA Act 1991 with new subparagraphs 7(da)(i) and 7(da)(ii). This adds a new function to AFMA to allow it to implement fisheries adjustment, restructuring, exploratory and feasibility programs that have been developed by organisations other than AFMA.

Item 2 inserts a new paragraph 7(e) to AFMA's functions under the FA Act 1991. This provides AFMA with a basis to place observers on foreign fishing boats operating in international waters. As discussed in the background to this Bills Digest, AFMA currently has the legislative authority to arrange such placements only in very limited circumstances.

Schedule 2 - Amendment of the Fisheries Management Act 1991 (FM Act 1991)

Item 1 complements Item 2 of Schedule 1 by adding a new section 8A to the FM Act 1991. Section 8A authorises the making of regulations in relation to the placement of observers on foreign fishing boats operating in international waters. It also specifies that such placements must be authorised by a relevant treaty or arrangement to which Australia has membership or similar connection and the powers etc of the observer must be consistent with the relevant treaty or arrangement.

Item 2 inserts some additional words in the existing paragraph 14(2)(c). The effect of this is to make it clear that regulations can be made to require the collection of data by fishers in relation to all species of by-catch, including seabirds etc.

Items 4, 5, 6 and 8 make a number of changes to existing subsections 17(1A) and 17(1B). These changes clarify procedures when AFMA decides to develop a fishery management plan or alternatively decides when such a plan is not warranted. In particular, Item 8 amends existing subsection 17A(1) so that AFMA is now required to notify those on the register of interested persons about decisions 'affecting the preparation' of management plans. This would, for example, require AFMA to notify registered persons when it removed a fishery from the 'plan of management not warranted' list as part of the process to begin drafting of a plan.

Item 7 rewords the existing subsection 17(6D). The merits of the proposed amendment are extensively discussed in the background section to this Digest. The new wording of 17(6D) would require that fishery management plans contain measures 'directed at reducing to a minimum' the incidental catch of both fish species which are not authorised under the plan and any other species of animal (eg cetaceans, reptiles and birds).

Item 10 extends the definition of foreign fishing boat in section 94(8) to include support vessels and vessels not originally designed for fishing but subsequently equipped to do so. Again, the merits of the proposed amendment are discussed in the background section.

Item 16 inserts a new subparagraph 95(1)(g) which creates a new offence of knowingly falsely or misleadingly recording or reporting information required under section 42. Section 42 information covers the taking, sale, disposal, transhipping and processing of fish taken under a fishing concession. However, it does not appear to cover bycatch or other forms of incidental catch. The penalty for such an offence can include a fine of up to 250 penalty units ($27 500) and the forfeiture of boat, fishing gear, any fish on board and the proceeds of the sale of fish caught (see items 22 and 23). Penalties in relation to misreporting of bycatch, which is an offence under section 107, are 1 years gaol and 50 penalty units ($5 500).

Item 18 adds a new subsection 98(4) which covers court orders following conviction under paragraphs 95(1)(d), (e) or (f). Offences under paragraphs 95(1)(d), (e) and (f) relate to the holder of a fishing concession, scientific permit or temporary order or someone acting on their behalf contravening the provisions of the concession/permit/order. The new subsection 98(4) allows the court to tailor the period for which the concession/permit/order is suspended. The purpose of this is to allow, for example, the period of suspension to coincide with the fishing season(s) in which the person convicted normally operates, thus maximising the effectiveness of the suspension.

Item 21 extends the definition of foreign fishing boat consistent with the change in item 10.

Endnotes

  1. The Act received Royal Assent on 3 November 1999.

  2. 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) is not yet in force. Australia deposited an instrument of ratification of the FSA on 23 December 1999. Five more ratifications are required for entry into force - this may occur as early as mid 2000.

  3. Note that provisions of the FLA Act 1999 relating to FSA implementation do not come into force until the FSA does.

  4. Such as boats supplying fuel, crew rations etc to vessels operating in international waters.

  5. In lay terms, a straddling stock fishery is where the relevant target fish species 'straddles' across a particular Exclusive Economic Zone (EEZ)/high seas boundary and a highly migratory species fishery occurs where the migratory range of the target species covers a combination of high seas and more than one EEZ.

  6. The HIMI fishery is managed by AFMA but also falls within the CCLMAR Antarctic region.

  7. These are: cooperation with international bodies relating to (inter alia) regional fisheries management arrangements new paragraph 7(ga), and the taking of action to deter the use of vessels in international waters that is contrary to such arrangements (new paragraph 7(ma)).

  8. House of Representative, Debates, 8 December 1999 p. 13021.

  9. Senator the Hon Warwick Parer, Media Release 13 July 1998. The ban came into force on 1 March 1998 and is still in operation.

  10. See section 5(2) of that Act, especially the grounds for review 5(2)(a) - taking an irrelevant consideration into account in the exercise of a power and 5(2)(c) - an exercise of a power for a purpose other than a purpose for which the power is conferred.

  11. The Fisheries Act 1952 was replaced by the FM Act 1991 and FA Act 1991. The port access permit provision in the Fisheries Act 1952 was section 13BAA.

  12. Another difficulty with this view is that it raises questions why a new function 7(m) was deemed necessary under amendments brought in by the FLA Act 1999. That function is 'to take action...to deter the use of vessels on the high seas for activities that contravene of reduce the effectiveness of measures that are the conservation and management of fish stocks that are established by [organisations or arrangements] of which Australia is a member of participates in'. While the explanatory memorandum stated that this function would authorise the 'regulation of port access so that as not to support high seas activities which are undermining regionally developed conservation measures', such regulation is exactly what AFMA has been effectively doing since 1 March 1998.

  13. See schedule 2 of the Fisheries Legislation Amendment Act 1997.

  14. In some cases due to fish species associations and the method of fishing, some fish that are not purposely targeted will be caught in fishing operations. In recognition of this, permits may in some cases allow fishers to retain certain amounts of such 'non-target' species to avoid wastage.

  15. It is understood AFMA's informal bycatch policy generally requires either a provision be inserted in management plans referring to by catch action plans where such plans have been made, or for a fishery in which a management plan has not yet been determined, by catch action plans for fisheries which have bycatch issues will be adopted as policy and implemented by permit conditions.

Contact Officer and Copyright Details

Angus Martyn
7 February 2000
Bills Digest Service
Information and Research Services

This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document.

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 1328-8091
© Commonwealth of Australia 2000

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Published by the Department of the Parliamentary Library, 2000.

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