Bills Digest No. 71 2003-04
Fisheries Legislation Amendment (High Seas Fishing
Activities 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
(High Seas Fishing Activities and Other Matters) Bill
2003
Date Introduced:
28 November 2003
House: Senate
Portfolio:
Agriculture, Fisheries and
Forestry
Commencement:
Schedule 1 will commence
on a date fixed by proclamation, but not before the Compliance
Agreement enters into force for Australia. At the latest,
Schedule 1 will commence six months after the Compliance Agreement
has come into force. Schedule 2 will commence on a date 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:
-
ensure compliance with the
Agreement to Promote Compliance with International
Conservation and Management Measures by Fishing Vessels on the High
Seas (the Compliance Agreement ) in preparation for Australia
s acceptance of that Agreement, and
-
improve the efficiency and effectiveness of
the Australian Fisheries Management Authority (AFMA).
The first part of
the Bill gives
effect to the United Nations Food and Agriculture Organisation s
(FAO) Agreement to Promote Compliance with
International Conservation and Management Measures by Fishing
Vessels on the High Seas. This agreement was approved by the
FAO conference in November 1993, but only came into effect when the
25th Instrument of Acceptance was deposited with the FAO
s Director-General on 24 April 2003.(1)
Australia has not yet
accepted the Compliance Agreement as its laws do not yet comply
with the agreement s requirements. The Government has indicated
that it will accept the agreement once this
Bill has been passed by
Parliament.(2)
Under international law,
specifically the United Nations Convention on the Law of the
Sea (UNCLOS), all States have the right to fish on the high
seas but also have a responsibility to conserve the living
resources in those seas by enacting measures to govern their
nationals who engage in high seas fishing (for example, through a
system of licensing). The Compliance Agreement aims to improve
compliance with that responsibility.
The Compliance Agreement was
created in response to concerns about depletion of fish stocks in
the high seas as a result of increasing illegal, unreported and
unregulated (IUU) fishing. In particular, the Compliance Agreement
attempts to address the problems of re-flagging and flag of
convenience practices used by vessels engaged in IUU fishing.
Re-flagging involves switching the registration of a vessel from
one jurisdiction to another to overcome the cancellation or
suspension of high seas fishing rights in the first jurisdiction.
This allows offenders to continue operating despite earlier
punishment. Flag of convenience practices involve registration of
vessels in states that are either unwilling or unable to police the
high seas fishing rights that they grant. According to the Minister
for Fisheries, Forestry and Conservation, recent arrests by
Australian and French authorities of boats engaged in IUU fishing
in southern waters have all involved flag of convenience
vessels.(3)
The key obligations of the
Compliance Agreement are:
-
that States
take responsibility for regulating the high seas fishing of boats
carrying their flag, including making illegal fishing an offence in
domestic law
-
that States granting high seas
fishing rights to boats carrying their flag have an effective
system for ensuring compliance
-
that States keep a record of all
boats to which they have granted high seas fishing rights and that
this record be shared with the FAO, thereby creating an
international register,
-
that States perform background
checks on boats before high seas fishing licenses are granted to
ensure that boats do not re-flag to avoid suspension or
cancellation as punishment for illegal fishing in another
jurisdiction.
The Joint Standing Committee on
Treaties (JSCOT) has recommended that
Australia should participate
in the agreement. JSCOT pointed out that the value to
Australia of fishing on the
high seas and fishing in Australian waters of species that migrate
from the high seas was in the order of $204.4 million for
2000-2001.(4) In addition to environmental motives to
prevent over-fishing, this industry stands to benefit from
protection from IUU fishing in the high seas.
Australia
already has a system for regulating commercial fishing
rights, which is administered by the Australian Fisheries
Management Authority (AFMA) under the Fisheries Management Act.
This Bill
proposes to amend that system to ensure conformity with
the Compliance Agreement.
Aside from preparing Australian law
for acceptance of the Compliance Agreement, the
Bill also makes other
amendments to the Fisheries Management Act that are intended to
improve the operating efficiency and effectiveness of
AFMA.(5) The most significant is an increase to the
powers of AFMA and other agencies to intercept, detain, board and
search vehicles and aircraft without the consent of the owner or a
warrant. According to the second reading speech, this change
is necessary because there is not always time to get a warrant and,
if the suspicion has foundation, consent may not be forthcoming
.(6) No information was provided in the speech regarding
how often this has been a significant operational problem for
AFMA.
Items 1 to 5 provide
minor amendments to the Fisheries Administration Act to reflect
intended international obligations that will arise under the
Compliance Agreement or other international agreements.
Specifically, items 3, 4 and 5 incorporate
adherence to international obligations into the objectives of the
Act and into the functions of AFMA.
A central requirement of the Compliance
Agreement is that States take responsibility for management of
boats under their flags engaging in high seas fishing. Accordingly,
the Bill extends the application of the
Fisheries Management Act to ensure that high seas fishing by
Australian-flagged boats comes under AFMA regulation.
Item 10 amends the
Fisheries Management Act to extend its application to all fishing
activities in waters outside the Australian Fishing Zone (AFZ),
where Australian or Australian-flagged boats are involved.
Item 11 provides that regulations may extend the
application of the Act to Australian citizens, companies, boats and
Australian-flagged boats in respect of the high seas generally .
Currently the Fisheries Management Act only applies to specified
waters outside the AFZ.
Item 12 provides that
the Act can apply to Australian-flagged boats fishing outside the
AFZ, regardless of whether they are Australian (ie
Australian-owned) boats. Item 16 provides that
rights to undertake high seas fishing granted under the Fisheries
Management Act cease when a boat ceases to be Australian-flagged
(in compliance with Article 3(4) of the Compliance
Agreement).
In an attempt to stop the practice of
re-flagging the Compliance Agreement requires States to make
background checks before allowing high seas fishing [Article
3(5)].
To comply with this requirement,
item 13 provides a new substantive provision,
proposed section 16B. This provides that AFMA must
not grant a concession authorising fishing on the high seas to an
Australian-flagged boat where that boat s high seas fishing rights
are on suspension or have been cancelled within the last three
years in another jurisdiction due to a breach of international
conservation and management measures by the owner or operator. An
exception to this rule applies where it can be shown the owner or
operator that earned the suspension or cancellation of the boat no
longer has an interest in or control over the boat. Further, AFMA
may grant a concession despite suspension or cancellation
elsewhere, where it is satisfied that the grant is unlikely to
undermine international conservation and management measures. These
provisions match the requirements of the Compliance
Agreement.
Notably, the Bill
does not make provision for decisions made by AFMA under
proposed section 16B to be reviewable by the
Administrative Appeals Tribunal (AAT). Currently, most decisions by
AFMA relating to granting concessions are appealable to the AAT.
Without provision for AAT review (through a consequential amendment
to s 165 of the Fisheries Management Act), people denied fishing
concessions due to an alleged earlier suspension or cancellation in
another jurisdiction will have no avenue for review of the decision
on the merits.
Item 14 amends the Act
to allow AFMA to grant concessions to fish on the high seas to a
particular boat, with a condition that those concessions can only
be transferred to another boat with AFMA s permission. Currently,
rights can be transferred to another boat without AFMA s agreement,
which could be used as a loophole to avoid background checking.
Similarly, item 15 requires agreement from AFMA
before fishing rights can be substituted to another boat and, in
the case of high seas fishing rights, that boat must be
Australian-flagged. Notably, this will apply to boats seeking
rights to fish in the AFZ (as well as those seeking high seas
fishing rights) which is not required by the Compliance
Agreement.
A key plank of the Compliance Agreement
is the requirement that States keep registers of boats that have
been granted high seas fishing rights (or had rights suspended or
cancelled) and share these registers with the FAO.
In proposing a new
Part 4A to the Fisheries Management Act,
item 18 provides for Australia
s compliance with this requirement. It creates a High Seas
Register to be administered by AFMA, in addition to the Register of
Statutory Fishing Rights. This register is to include:
-
the name and address of the
owner
-
the nature of concessions granted to fish
on the high seas
-
certain identifying information
-
details of any suspensions of cancellations
of rights, including the reasons for these, and
-
any changes to this information.
The information in the register is to be
shared with the FAO so that it can maintain an international
register of boats involved in high seas fishing. The register is to
be a public document, although a fee may be charged to inspect it.
Providing false documentation purporting to be an extract from the
register or an instrument lodged with AFMA is to be a criminal
offence punishable by up to two years imprisonment.
Item 1 repeals a
provision which allows regulations to be made requiring the
production and furnishing of records relating to the use of a
fishery by a concession holder. This is replaced by a provision
allowing AFMA to directly determine whether and how logbooks are to
be required of concession holders. Recent practice has been that
AFMA has developed rules relating to logbooks under authority
provided by the Fisheries Management Regulations. However, a recent
Tasmanian Supreme Court case, R v Turner (No
6),(7) held that it was beyond the power of the
Governor-General to delegate this power through regulations to
AFMA. This amendment would overcome this problem, giving AFMA
direct control over the rules relating to the logbooks. Rules made
by AFMA under this provision would be disallowable by
Parliament.
Items 2 7 make
amendments consequential to this change. Item 8
ensures that logbooks required by conditions placed on concessions,
a method used to enforce logbooks by AFMA since R v
Turner, remain valid regardless of this amendment.
Items 9 and 10 provide
amendments that would allow officers of AFMA, Australian Federal
Police, Defence Force or Customs, in certain circumstances, to stop
and detain vehicles and aircraft without the consent of the owner
or operator and without a warrant. This includes the power to enter
and search the vehicle or aircraft, break open and search any
compartment that might reasonably contain evidence and to examine
or take possession of evidence.
Currently, these powers can only be
exercised with the consent of the owner or operator or with a
warrant. Warrants are obtained from magistrates and, in cases where
urgency is required or where the execution of the warrant would
otherwise be frustrated, warrants can be obtained electronically
(by telephone, fax or other electronic means).
Under the
Bill, detention and search without consent or
warrant would be allowed when:
-
consent to stop and detain etc has been
refused
-
the
officer has reasonable grounds to believe the vehicle contains
evidence of an offence against the Act, and
-
the officer has reasonable grounds to
believe the delay involved in obtaining the warrant would frustrate
its execution.
If it is practicable, the officer must
notify the owner or operator that this power is to be exercised and
that reasons for the powers being exercised may be requested. Upon
request, these reasons must be given in writing.
Charter boats are used by businesses
that charge recreational fishers for fishing trips, where the fish
caught are not sold. Currently, the Fisheries Management Act treats
charter fishing as a commercial activity. Items 11 to
15 provide amendments that would treat charter fishing in
the same way as recreational fishing. This will mean that
day-to-day management of charter fishing rights will be conducted
under State and Territory law, although AFMA will retain an ability
to prohibit or regulate charter fishing through its plans of
management or temporary orders.
Item 16 provides an
amendment that would not require regulations to be made every time
there is a change to the Treaty on Fisheries between the
Governments of Certain Pacific Islands and the Government of the
United States of America. Those changes that would not affect
fishing in the AFZ would not require regulation and would,
therefore, not be subject to parliamentary disallowance. Changes to
the treaty that would affect fishing in the AFZ would still require
regulation.
Schedule 1 makes the necessary changes
that will bring Australian law in line with the Compliance
Agreement, thereby allowing acceptance of the agreement.
How effective the Compliance Agreement
will be remains a moot point. It is notable that many of the States
that are alleged by the Government to be flag of convenience states
such as Panama,
Belize, Togo,
Russia, Netherlands
Antilles, St Vincent and San
Tome(8) are not parties to the agreement. However, the
exchange of information between the parties about the activities of
non-party flagged boats, as required by the agreement, may assist
in gaining a global picture of the problem. To the extent that
re-flagging is a problem between party states, the international
register should provide an effective means of preventing
this.
Aside from this the agreement has a
political role, demonstrating the determination of the parties to
prevent IUU fishing on the high seas and providing a structured
international system that non-parties can be encouraged to join. In
this role the Compliance Agreement should be seen as one of many
planks in Australia s participation in
the international regulation of high seas fishing, which includes
UNCLOS and the International Plan of Action to Prevent, Deter
and Eliminate IUU Fishing among other instruments.
Granting power to AFMA and other
officers to stop, detain and search vehicles and aircraft without
consent or warrant, albeit with important limitations, is a
significant increase in the power of those officers. As with all
powers to detain and search without a warrant, the absence of a
third party who must be convinced that the detention is on
reasonable grounds carries a risk of capricious use and potential
abuse of civil liberties and privacy. On the other hand, Australian
criminal law already recognises that operational aspects of
investigation may require these powers, providing similar powers to
police to search without a warrant in an emergency (for example, s
3T Crimes Act 1914 (Cth)).
Parliament may want to consider whether
AFMA s operational experience and the seriousness of the offences
justify this extension of power. The Senate Standing Committee for
the Scrutiny of Bills has suggested that the impracticability of
obtaining a warrant including where vehicles, ships and aircraft
are involved may justify an exception to the general principle that
consent or a warrant should be required before such powers may be
exercised.(9) However, the Committee also noted that
impracticability should be assessed in the context of current
technology . The Fisheries Management Act already provides that
warrants may be obtained by electronic means in urgent
circumstances, with electronic means defined widely enough to
accommodate emerging communication technologies.
If it is thought that the extension of
power is justified in this instance, Parliament may want to
consider whether further restrictions on the exercise of that power
should be adopted. For example, the Crimes Act, which allows
searches of conveyances (i.e. vehicles) without consent or warrants
in some circumstances, requires that an officer exercising that
power must:
-
search the conveyance at a place where
members of the public have ready access
-
not detain the conveyance for any longer
than necessary to carry out the search, and
-
not damage the
conveyance or any container on it by forcing it open, unless the
operator of the conveyance has been given a reasonable opportunity
to open it (unless it is impossible to give that person that
opportunity).
Further, the Crimes Act only allows
searches to occur without a warrant or consent where the
circumstances are serious and urgent . Although some degree of
urgency is required by the current
Bill (the delay in applying for a warrant must
frustrate the effective execution of the warrant), it contains no
requirement for seriousness. Accordingly, the power could
be used even where minor offences are suspected. The Senate
Standing Committee for the Scrutiny of Bills considered that the
Crimes Act should constitute the high water mark for search and
entry powers.(10) This Bill
does appear to go further in its grant of powers than the
Crimes Act.
-
Current parties to the Compliance Agreement are Argentina,
Barbados, Benin, Canada. Cyprus, Egypt, European Community,
Georgia, Ghana, Japan, Madagascar, Mauritius, Mexico, Morocco,
Myanmar, Namibia, Norway, Peru, Republic of Korea, St Kitts &
Nevis, St Lucia, Seychelles, Sweden, Syrian Arab Republic,
Tanzania, USA and Uruguay.
-
Senate Hansard, 28 November 2003, 18050.
-
Senator The Hon Ian Macdonald, The Howard Government s efforts
to deter illegal fishing activities , Speech to National Press
Club, 19 August 2003.
-
Joint Standing Committee on Treaties, Report 47 - Treaties
Tabled on 18 and 25 June 2002, Commonwealth of Australia,
2002, 41. Available on-line at:
http://www.aph.gov.au/house/committee/jsct/18_25_june_2002/index.htm.
-
Senate Hansard, 28 November 2003, 18049.
-
Senate Hansard, 28 November 2003, 18050.
-
[2001] TASSC 89, para 23
-
Senator Macdonald, op. cit.
-
Senate Standing Committee for the Scrutiny of Bills, Fourth
Report of 2000: Entry and Search Provisions in Commonwealth
Legislation, 2000, 75. Available on-line at: http://www.aph.gov.au/senate/committee/scrutiny/bills00/b04.pdf.
-
ibid., 81.
Jacob Varghese
8 January 2004
Bills Digest Service
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