Bills Digest No. 70 2003-04
Fisheries
Legislation Amendment (Compliance and Deterrence Measures and Other
Matters) Bill 2003
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
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Fisheries Legislation Amendment
(Compliance and Deterrence Measures and Other Matters) Bill
2003
Date Introduced:
4 December 2003
House: Senate
Portfolio:
Agriculture, Fisheries and
Forestry
Commencement:
The main provisions
commence on a date to be fixed by proclamation, or if this is not
within six months of Royal Assent, the first day after that
period.
To amend the Fisheries Administration Act
1991 and Fisheries Management Act 1991 to:
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put in place a more effective deterrence and compliance regime,
in particular deterring illegal, unreported and unregulated (IUU)
fishing
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improve the operating efficiency and effectiveness of the
Australian Fisheries Management Authority (AFMA), and
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promote the
ecologically sustainable management of Commonwealth fisheries.
Background
This is the second of two recent Bills dealing
with amendments to the Fisheries Administration Act and Fisheries
Management Act, the first being the Fisheries Legislation (High
Seas Fishing Activities and Other Matters) Bill 2003 (see Bills
Digest No. 71, 2003 04).
This Bill provides miscellaneous amendments
which:
The strengthening of the regime for policing
foreign fishing boats in the AFZ is prompted by concerns about IUU
fishing. IUU fishing remains most common in Australia s northern
waters. According to the Department of Agriculture, Fisheries and
Forestry, in the calendar year 2002, 109 of the 111 boats
apprehended for IUU fishing in the AFZ occurred in the
north.(1)
In recent years, however, large-scale IUU
operations have occurred in southern waters around Heard and
McDonald Islands. These have targeted Patagonian toothfish, a
lucrative catch labelled white gold . According to Greenpeace, the
Patagonian toothfish is headed for commercial extinction having
already been fished out of existence in some areas.(2)
The toothfish is a major food source for sperm whales and elephant
seals, so reduced numbers are expected to have knock-on effects for
those species. In addition, IUU fishers tend to disregard laws that
attempt to minimise the environmental impact on aquatic and bird
species. As well as undermining the ocean ecology, the illegal
trade in this fishery competes with a legal industry worth around
$30 million a year.(3) According to the Minister for
Fisheries, Forestry and Conservation, the estimated illegal catch
of toothfish in the waters around Heard and McDonald Islands was
around 2500 tonnes in 2001/2002, almost matching the total
allowable catch of 2815 tonnes.(4)
IUU fishing recently made headlines with the
three week pursuit of the Uruguayan-flagged Viarsa 1 by
Australian authorities in August 2003. The Viarsa 1 had
been suspected of breaches of the Fisheries Management Act in the
AFZ around Heard and MacDonald Islands. It was finally apprehended
by authorities in the mid-Atlantic Ocean after a pursuit through
dangerous southern waters. When caught, 85 tonnes of toothfish were
allegedly found on board with an estimated value of $1
million.(5) The costs to the Commonwealth of the chase
in terms of the charter of the patrol boat and re-imbursement of
the Governments of South Africa and the United Kingdom for their
assistance (and not including the costs to the Navy in escorting
the boat back to Australia) was around $3.4 million.(6)
These events form the background to the amendments allowing the
Commonwealth to recover the costs of pursuit.
The increased penalties proposed by the Bill
do not apply to boats less than 24 metres in length. This indicates
that the target of the Bill is large-scale commercial IUU
operations such as those catching Patagonian toothfish in southern
waters, rather than smaller scale traditional or artisan fishers
that tend to be apprehended in the north. Under a Memorandum of
Understanding reached between Australia and Indonesia in 1974,
traditional Indonesian fishers are permitted to use certain
Australian waters. These fishers can be apprehended if they stray
out of the allowable area or use non-permitted fishing methods.
The reforms proposed by the Bill relating to
AFMA and the fisheries management regime deal with operational
issues. According to the Explanatory Memorandum, these
proposals have been prepared in consultation with the Australian
fishing industry through AFMA s management advisory committee
process and have been approved by the AFMA Board.(7)
Most of the changes relate to AFMA s use of
permits and licenses to regulate fishing in fisheries for which no
plan of management has yet been developed. Under the Fisheries
Management Act, where a plan of management has been produced,
statutory fishing rights can be granted. These are indefinite and
tradeable rights to use a fishery and are maintained on a public
register. Where a plan of management applies AFMA may issue
directives regarding the use of the fishery to ensure fish stocks
are maintained, including closure of the fishery for certain
periods. Where no plan of management exists, AFMA regulates a
fishery by use of limited-term permits and licenses. In these
cases, AFMA has less direct control over the use of the fishery
once a permit or license has been granted. The amendments proposed
in this Bill mostly attempt to tighten the management of permits
and licenses by creating a central register, requiring return of
instruments once they are surrendered, encouraging return of unused
permits and licenses and, most significantly, allowing AFMA to
issue directives affecting the operation of permits and licenses,
including closure of a fishery.
The most significant change to the Fisheries
Management Act proposed by the Bill would allow the Commonwealth to
recover pursuit and apprehension costs from owners of vessels
suspected of fishing offences that do not stop for officers on
request (item 27). The Bill would allow AFMA to
impose a penalty equal to the pursuit costs where:
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a foreign boat fails to stop or move to a certain place on the
requirement of an officer
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the boat is in the AFZ or Australian territory or the officer
has reasonable grounds to believe it has been or will be used to
fish in the AFZ
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pursuit of the boat is required as a result of its failure to
stop or move to the required place
-
the pursuit
results in the boat arriving at a place in Australia or an external
territory, and
-
the boat is
automatically forfeited under s 106A of the Fisheries Management
Act(8).
The debt applies after AFMA has served on the
owner a preliminary notice of debt and, subsequently, full
particulars of the debt, unless the owner notifies AFMA within 30
days that he or she intends to contest the debt. If the owner does
notify AFMA of an intention to contest the debt, he or she has two
months to apply to the Federal Court to have the debt set aside.
The Court may set aside the debt on the grounds that the boat was
not forfeited under s 106A, that is that a relevant offence had not
occurred. Notably, the onus of proof lies with the owner of the
boat to show (on the balance of probabilities) that the boat was
not forfeited. The Court may also set aside the debt or part of it
if the pursuit costs have not been reasonably incurred. In this
case the onus is on the Commonwealth to show that the foreign boat
did not comply with a lawful request to stop, that the pursuit was
necessary and that the costs are reasonable and correctly
calculated. The manner for calculating pursuit costs is to be
outlined in regulations.
The Bill also provides that the pursuit costs
can be demanded by AFMA as a bond when a confiscated boat is
returned to its owner (item 24).
Item 26 proposes an increase
of the maximum fine payable for conviction of the offence of having
a foreign boat equipped for fishing in the AFZ from 5000 penalty
units to 7500 penalty units (that is from $550 000 to
$825 000). An exception will apply to boats that are under 24
metres long, for which a fine of up to 5000 penalty units will
continue to apply.
The Bill gives AFMA the power to close or
partially close a fishery by a directive published in the
Gazette and sent to all relevant concession-holders
(primarily item 20 and consequentially
items 8, 9, 11, 12, 14, 15, 17 and 18). This may
be done where:
-
there is no plan of management for the fishery
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consultation has occurred with the relevant management advisory
committee (MAC)(9) and all relevant concession-holders,
and
-
AFMA is satisfied that closure or partial closure is necessary
for the pursuit of its objectives.
Currently, AFMA controls use of fisheries that
are not under a plan of management, including closure and partial
closure, through conditions placed on permits and licences. Where a
permit is varied to provide for full closure, this may be beyond
AFMA s power as it is effectively negating any use of the license
or permit. This Bill provides a more direct mechanism for AFMA to
exercise control over the use of fisheries and avoids this
potential problem.
Under the current regime, decisions made by AFMA
to vary conditions of permits or licences can be appealed to the
Administrative Appeals Tribunal for review on the merits of the
decision (under s 165). However, under the proposed scheme, no
provision is made to allow merits review of directives made by AFMA
to close or partially close a fishery. A person aggrieved by such a
decision would only have the limited avenue of judicial review (see
Concluding Comments below).
The Bill does provide that these AFMA directives
be disallowable instruments under the Acts Interpretation Act
1901.(10) Accordingly, they would be subject to
parliamentary disallowance.
Item 21 proposes the creation of
a new Fishing Permits Register, akin to the Register of Statutory
Fishing Rights that already exists. The new register will provide a
central record of the short-term non-tradeable permits and
licenses. This register will be similar in operation to the
Register of Statutory Fishing Rights, including providing a right
for members of the public to inspect the register and creating an
offence of furnishing a false document purporting to be a copy or
extract of an instrument lodged with AFMA for the purpose of the
register or of the register itself (punishable by up to 2 years
imprisonment).
Items 7, 10, 13, 16 and 19
require holders of statutory fishing rights, fishing permits,
scientific permits, foreign fishing licenses and foreign master
fishing licenses respectively to provide AFMA with the original
instrument evidencing the permit or license when they surrender
their rights. Currently, surrender of fishing rights merely
requires written notice to AFMA. The holder may keep the original
instrument. In these circumstances, AFMA officers in the field
cannot conveniently determine the validity of an instrument they
inspect.
Item 28 provides an amendment
that would allow AFMA to waive a levy payable on a fishing permit
when that permit is surrendered without any fishing having been
performed under it. This seems to be aimed at encouraging return of
unused permits so that new permits may be issued to reduce latent
effort fisheries(11) that is the amount of fish not
caught within allocated quotas.
Items 22 and 23 propose
amendments that will reduce the obligation of officers making
requirements of people under the Fisheries Management Act to show
written identification.
Currently, under s 84(6) of the Fisheries
Management Act, an officer making a requirement of a person must
show written identification or an identification card to that
person. That person need only comply with the requirement when
identification has been shown. An exemption to this rule applies
where an officer requires a person to bring a boat to a stop or to
take it to a certain place so that it may be boarded. In these
circumstances, there is no requirement that the officer produce
identification, even after the event.
Under the Bill s proposal, it would not be
necessary to show identification where it is impossible in the
circumstances to do so for example, as suggested by the Minister,
when the requirement is being made over radio(12).
However, the officer must take all reasonable steps to identify him
or herself at the time and produce identification at the first
available opportunity. This includes where a requirement is made
that a boat stop so that it can be boarded.
The practical effect of this change is that
officers will be able to make the following requirements of people
without immediately showing identification:
-
that the master of a boat take the boat to a certain place and
remain in control of the boat until permitted to leave (where there
are reasonable grounds to believe that boat has been used or is
intended to be used in contravention of the Fisheries Management
Act)
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that the master of a boat give information regarding the boat,
its crew and other people on board
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that any
equipment be lifted from the sea (where there are reasonable
grounds to believe the equipment is being used in contravention of
the Fisheries Management Act), and
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that a person on board a boat state their name and address
(where there is a reasonable suspicion that he or she has committed
an offence).
The Bill amends the Fisheries Administration
Act to allow remuneration and allowances to be paid to members of
AFMA s management advisory committees (MACs), as determined by the
Remuneration Tribunal (Items 1-6). The MACs
comprise stakeholders in the relevant fisheries, normally including
commercial fishers, scientists, conservationists and AFMA
representatives. They provide advice to AFMA on the management of
these fisheries. There are currently 11 MACs in
operation.(13) Remuneration and allowance for some
out-of-pocket expenses was recommended by a review of the MAC
process commissioned by AFMA from ACIL Consulting. It was suggested
that, although a fee for sitting on a MAC could never compensate
for the fishing time lost by participating, it would signal to
participants that their participation is valued and indicate the
importance of MACs. It was acknowledged, however, that some
stakeholders consulted on the issue thought that the payment of
fees could require a higher levy burden on
fishers.(14)
The extent to which higher penalties and
recovery of pursuit costs will act as a deterrent against IUU
fishing remains to be seen. It is likely to take more to overcome
the attraction of high profits that can be made in the illegal
trade. Having said that, the Bill is one
of several unilateral and multilateral steps
Australia has taken to prevent IUU fishing in
the AFZ and on the High Seas, including leading participation in
the Convention on the Conservation of Antarctic Living Marine
Resources and the International Plan of Action to Prevent
and Deter IUU Fishing.
This Bill only
addresses the issue of overfishing from the perspective of illegal
foreign vessels in Australian water, not the possibility of
overfishing under the legal regime. Greenpeace has argued that
measures to prevent illegal fishers are not sufficient to preserve
fish stocks.(15) The environmental organisation
advocates a moratorium on all Patagonian toothfish fishing and an
international ban on trade in the fish until IUU fishing has been
driven out . It argues that the scientific basis for determining a
sustainable legal catch rate is undermined by the illegal trade.
Accordingly, the legal fishing trade could be contributing to
overfishing.
As mentioned above,
Australia does allow fishing for Patagonian
toothfish in the Heard and MacDonald
Island fishery, with a total allowable catch of
2815 tonnes in 2001/2002. Although AFMA takes estimates of illegal
fishing into account in determining allowable catches, it notes
that these figures are minimum estimates only given the inherent
difficulty in accounting for the IUU catch.(16) In
support of continuing legal fishing, AFMA suggests that the
presence of legal fishers helps to locate and monitor an illegal
presence and may also act as a deterrent to illegal
fishing.(17)
As discussed above, the grant of power
to AFMA to make directives closing or partially closing a fishery
does not come with a right to appeal those directives to the AAT.
This significantly changes the current practice in which similar
restrictions are reviewable.
Under the proposed regime, concession
holders who feel aggrieved by a decision to close a fishery will be
able to pursue judicial review but not merits
review. Merits review involves consideration by a tribunal as
to whether the decision was a correct or preferable one in all the
circumstances. Judicial review involves consideration by a court
only as to whether the decision was legal that is, within the legal
power of the decision-maker regardless of the merits of the
decision itself.
Aside from judicial review, the only
other remedy for the aggrieved concession-holder would be
disallowance of the directive. However this would be a matter for
Parliament and the concession-holder could only be indirectly
involved in this process.
This involves a substantial reduction in
the rights of permit and license holders.
The rule that officers must produce
identification when making requirements serves two purposes.
Firstly, it ensures that the person of whom the requirement is made
knows who to hold to account if they object to the requirement.
Secondly, it ensures that the person knows that they are being
required to do something by a genuine official. The
Bill preserves the first purpose by requiring
that identification be produced at the first available opportunity.
However, the relaxing of requirements to show identification does
open the possibility that criminals or pirates could take advantage
of the proposed rule by impersonating officers, in order to
manipulate a boat in preparation for hijacking or robbery. To some
extent, this problem already exists given that the current rules
allow officers to require a boat to stop or go to a certain place
without producing identification. This Bill
extends this approach to other types of requirements, which
are possibly less open to criminal abuse than the existing
exception.
-
DAFF website at
http://www.affa.gov.au/content/output.cfm?ObjectID=446232C4-D2A2-4D87-9FE743D39C47AFF9.
-
Greenpeace website at:
http://www.greenpeace.org/international_en/extra/?forward%5fdestination%5fanchor=%2finternational%5fen%2fcampaigns%2fintro%3fcampaign%255fid%3d4022&campaign%5fid=4022&forward%5fsource%5fanchor=Pirate%20fishing%20Introduction&item%5fid=6771.
-
Senator the Hon Ian MacDonald, The Howard Governments efforts to
deter illegal fishing activities Address to the National Press
Club, 19 August 2003.
-
ibid.
-
Luke Elliot Toothfish epic docks in port The West
Australian, 4 October 2003, 8.
-
Senate Hansard, 27 November 2003, 18043.
-
Explanatory Memorandum, Fisheries Legislation Amendment
(Compliance and Deterrence Measures and Other Matters) Bill 2003,
3.
-
Section 106A provides for forfeiture of a boat to the
Commonwealth where certain offences have been committed.
-
See page 7 under Remuneration and allowance to members of
management advisory committees for description of MACs.
-
Note that on the commencement of the Legislative Instruments
(Transitional and Consequential Amendments) Bill 2003, instruments
such as these will be disallowable legislative instruments under
the Legislative Instruments Act 2003.
-
Senate Hansard, 4 December 2003, 18570.
-
ibid.
-
Management Advisory Committees page on AFMA website at: http://www.afma.gov.au/about/macs.php.
-
ACIL Consulting, Management Advisory Committees: A report to
the Australian Fisheries Management Authority, January 2001.
Available from AFMA website at: http://www.afma.gov.au/pubs/reviews/acilmacs.pdf.
-
Patagonian toothfish (Chilean/Antarctic sea bass) on Greenpeace
website at:
http://archive.greenpeace.org/oceans/southernoceans/expedition2000/moreinfo/bg_toothfish.html
-
AFMA, The Future of the Heard Island and Macdonald Island
Fishery A Discussion Paper, December 1999, 11 at website:
http://www.afma.gov.au/fisheries/himi/discussion%20papers/heard%20and%20mcdonald%20islands%20management%20plan%20discussion%20paper%20december%201999.doc.
-
ibid., 12 13.
Jacob Varghese
7 January 2004
Bills Digest Service
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