Bills Digest no. 148 2004–05
Fisheries Legislation Amendment (International
Obilgations and Other Matters) Bill 2005
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
Contact Officer & Copyright Details
Amendment (International Obilgations and Other Matters) Bill
Date Introduced: 17 March 2005
Portfolio: Department of Agriculture, Fisheries and
Commencement: Much of the Bill commences, on, or immediately
after, Royal Assent. However, those provisions that deal with
surveillance and enforcement powers only commence on Proclamation.
Proclamation of these provisions may take place any time within two
years of Royal Assent.(1) A third set of
provisions(2) also rely on, amongst other things, the
commencement of the Border Protection Legislation Amendment
(Deterrence of Illegal Foreign Fishing) Bill 2005.
The main purpose of the Bill is to amend the Fisheries
Management Act 1991 to implement Australia's obligations under
the Convention on the Conservation and Management of Highly
Migratory Fish Stocks in the Western and Central Pacific Ocean (the
Amongst other matters, the amendments will enable the Commonwealth
to require Australian nationals and Australian-flagged vessels to
comply with whatever regional conservation and management measures
are agreed under the WCPFC.
There are a number of subsidiary purposes to
the Bill which are briefly covered under items
10-21 in the main provision section of this Digest.
Under the 1982 United Nations Convention on the Law of the Sea
(UNCLOS), a State has jurisdiction over fishing activities within
its 200 nautical mile exclusive economic zone (EEZ), subject to
various duties such as ensuring fish stocks are appropriately
managed to prevent over-exploitation. However, the area in which a
particular fish species occurs may often extend beyond a State s
EEZ into either a neighbouring State s EEZ or international waters
(the High Seas ). In such cases, UNCLOS provides that coastal
States(3) or other States fishing relevant species shall
seek to develop agreed conservation and management measures
through, amongst other ways, forming regional fisheries management
This UNCLOS obligation to attempt cooperation between relevant
States is expanded upon in a more comprehensive way under the 1995
United Nations Agreement on the Conservation and Management of
Straddling Fish Stocks and Highly Migratory Fish Stocks (the Fish
Stocks Agreement, or
FSA). Importantly, the FSA provides that where management
arrangements have been agreed for such fish stocks through a RFMO
or other arrangement, States which have ratified the FSA must be
members of the RFMO or otherwise agree to apply the conservation
and management arrangements if they are to fish the
stocks.(5) This applies even to a coastal State
seeking to fish within its EEZ and/or territorial waters.
Australia ratified the FSA in December 1999 after passing relevant
legislation earlier that year.(6)
Formal negotiation of the WCPFC started in the mid 1990s. It was
finalised and open for signature in 2000. Australia signed the
WCPFC in 2000, and ratified it in 2003, with it coming force in
June 2004. Seventeen States have ratified
the WCPFC, with a number of others having signed but not yet
ratified. Four of the six major so-called distant water fishing
nations (DWFNs) have ratified the WCPFC China, Korea, Taiwan and
the European Union. The United States and Japan have commenced the
ratification process the United States is a member of the FSA, and
thus cannot fish for relevant species in the area covered by the
WCPFC unless agreeing to comply with the WCPFC conservation and
management measures. The area covered by the
WCPFC includes the Australian territorial waters and its EEZ. The
WCPFC applies to the highly migratory tuna species such as
skipjack, yellowfin, bigeye and albacore as well as swordfish,
marlin and sailfish. As such the main species managed by the
Commonwealth in its Eastern Tuna and Billfish fishery
will be subject to any conservation and management measures agreed
under the WCPFC.
National Interest Analysis
prepared for the 2003
of the Joint Standing Committee of Treaties (JSCOT)
into the WCPFC provides a useful summary of Australia s obligations
once the WCPFC was ratified. Paraphrasing the analysis, these
WCPFC conservation and management measures must
be applied within Australia s territorial sea and EEZ, and
Australia must ensure that vessels flying its flag comply with
these measures, including in WCPFC waters outside Australia.
Australian vessels authorised to fish outside
Australian waters will require satellite position-fixing
transmitters and be prepared to accept on-board observers from the
regional observer program.
Australia will be under a general obligation to
implement and enforce conservation and management measures through
effective monitoring, control and surveillance. Where other members
allege that Australian nationals have violated the WCPFC, Australia
is to provide information to that member and to the WCPFC
If there is sufficient evidence to indicate
that an Australian flagged vessel has undertaken unauthorised
fishing, Australia is obliged to institute appropriate proceedings.
If a serious violation of the Convention is proven, Australia is
obliged to ensure that the vessel ceases fishing and does not
engage in fishing activities again until all sanctions have been
complied with. All investigations and judicial proceedings must be
carried out expeditiously and sanctions for violations must be
sufficiently severe to secure compliance, discourage violations and
deprive offenders of the benefits of illegal activities.
Australia must collect and share fishing
information - vessel positioning, catch (including bycatch) data,
and results from research programs.
Australia will be under a general obligation to
apply the precautionary principle.
Australia will have to make contributions to
the budget of the Commission.(7)
Notwithstanding some reservations about the WCPFC, JSCOT
unanimously recommended that it be ratified by Australia, mainly
because this would enable Australian vessels to continue fishing
for species covered by the Convention.(8)
Some of Australia s more general obligations under the WCPFC can
likely be implemented through existing legislation. Those that
cannot relate to enforcement of WCPFC conservation and management
measures. However, no measures have yet been agreed by members of
the WCPFC. Presumably this is why legislation was not required in
order to ratify the WCPFC in 2003.
On the issue of enforcement, it should be noted that the
boarding and inspection regime for fishing vessels operating in the
WCPFC area has not yet been agreed by the members of the
Convention. Should it not be agreed by June 2006,(9) the
regime operating under the FSA will apply.(10) The Bill
implements boarding and inspection-related legislation based on the
FSA model. As the second reading speech states, if WCPFC members do
agree on a boarding and inspection regime that is substantially
different to the FSA, the relevant provisions in the Bill will not
be proclaimed and new legislation will be drafted to reflect the
Item 1 amends the Fisheries Administration
Act 1991 (the FAA) to explicitly allow AMFA to disclose, or
authorise a prescribed agency to disclose, personal information
where this relates to fishing activities that may involve a breach
of the laws of Australia or of a foreign country . Under the
Privacy Act 1998, personal information is virtually any
sort of material about an individual whose identity is apparent, or
can reasonably be ascertained, from the information. Prescribed
agencies may be listed by regulations.(12) Item
2 allows AFMA to set conditions restricting whether the
personal information can be in turn disclosed by the body receiving
it. It is unclear whether there would be any legal sanctions should
an officer within the receiving body break any such restrictions.
Item 44 also contains a related amendment.
Items 3-9 insert various references to the
WCPFC, and terms used in it, into the Fisheries Management Act
1991 (the FMA).
Existing paragraph 10(2)(c) provides that the FMA overrides
State and Territory laws relating to fishing in cases where the
later requires that fish caught under Commonwealth authorisation
can only be landed in Australia under a State or Territory licence,
permit, payment of a fee etc. Items 10-12 amend
various parts of section 10 to extend this override to include any
State and Territory law relating to fish that prohibits the landing
of such fish or regulates the possession or other dealing in fish
in such a way that the law is likely to substantially discourage
the landing of such fish . State and Territory public health and
safety laws are not covered by the Commonwealth override. The
Explanatory Memorandum comments that the:
amendment addresses current State legislation
that prohibits the taking, possessing, processing, consigning or
sale or purchase of fish that are defined as commercially protected
species . (13)
It is understood that State and
Territory Governments, as well as industry and recreational fishing
groups, have been consulted regarding the amendments, but neither
the Explanatory Memorandum nor the second speech reveal whether
these parties support the amendments.
Existing section 17 deals with plans
of management for Commonwealth fisheries. Under subsection 17(5),
these plans must contain criteria by which the performance of its
various measures are to be assessed. Item 13
inserts an additional requirement that the plans incorporate
specified timeframes within which the measures are to be assessed.
Under item 14, the objectives of a plan must also
be consistent with the objectives of the FMA contained in section
3. These amendments were recommended in the 2003
report of the Commonwealth Fisheries Policy
Items 15-21 remove references to the ballot
system as a method of creating a fishing right. The ballot system
was criticised in the Commonwealth Fisheries Policy Review:
Stakeholder feedback during this Review strongly
supported the removal of the use of ballot approaches from the FM
Act. Unlike auction and tender, ballot approaches were seen as
failing to demonstrate a market-based mechanism for valuing access
rights to new fisheries resources. It is appropriate to remove the
ballot approaches from the legislation. (15)
More detail on the existing ballot
system is contained in page 6 of the Explanatory Memorandum.
Existing section 38 allows AFMA to
suspend a fishing concession for specified reasons.
(16)Item 23 inserts a new reason - if
the concession holder has committed a serious violation of a WCPFC
conservation and management measure which has led to sanctions
being applied to the guilty party by Australia or a foreign
country, but those sanctions have not been complied with. Given the
strong wording in the relevant provision of the
WCPFC,(17) it is perhaps arguable that the provision
should create a rebuttable presumption that AFMA must suspend the
concession, rather than having it as a discretionary
Existing Division 1 of Part 6 of the
FMA contains the surveillance and enforcement powers of FMA
officers. Items 24 to 33 separate
Division 1 into four Parts (new subdivisions A to
D) and inser0s various powers specifically concerning
(foreign) WCPFC boats .(19) These new powers are
contained in new subdivision C, new sections 87FA
to 87FD. These provisions are modelled on the
existing powers that are available to officers in relation to FSA
boats, that is, foreign boats registered in a State that is a party
to the FSA. (20)
Most of the more coercive new powers
(such as arresting without warrant or seizing a vessel and catch)
can only be exercised with a respect to a WCPFC boat that is either
in Australian waters or on the High Seas within the Convention area
if the conditions in new section 87FC are
satisfied.(21) In particular, the officer must
reasonable grounds that a person or persons have committed an
offence against new sections 105H or 105I
appropriate authority of the country of nationality of the boat of
this belief, and
believe that the country has authorised the action(22)
(ie arrest, seizure etc), except that this not necessary if the
country has not acted in accordance with its international
obligations arising from the notification(23)
and a person on board the boat has seriously violated a
WCPFC conservation and management measure.
The circumstances in which a person
serious violates a WCPFC conservation and management measure are
listed in new subsection 87FC(5). There appears to be a
significant drafting oversight in relation to new paragraph
87FC(5)(a). This paragraph states that a person seriously
violates a measure if they commit a new section 105H or
105I offence through one or more of seven categories of
actions. These categories are individual listed as new
subparagraphs 87FC(5)(a)(i)-(vii). A required
element of new section 105H or 105I offences is using a boat for
fishing if you do not use, or attempt to use, a boat for fishing,
you cannot commit a new section 105H or 105I offence. However,
using a boat for fishing is not a required element of six of the
seven categories of actions mentioned above. To provide an
example from the Bill, subparagraph 87FC(5)(a)(vi) provides
A person seriously violates a WCPFC conservation
and management measure in relation to a boat if the person commits
an offence against section 105H or 105I by changing or
hiding the markings of the boat [emphasis
How can a person commit an offence
against new sections 105H or 105I by (merely)
changing or hiding the markings of the boat? As new
sections 105H and 105I are currently drafted, it is not
possible. The concept of a serious violation of a regional
conservation and management measure originally comes from Article
21(11) of the FSA. That Article does not require the act of fishing
to occur. Thus if the Bill is intended to reflect this
aspect of the FSA, new sections 105H and 105I may have to redrafted
to delete fishing as a key physical
New section 87FD sets out some particular
procedures that an officer must follow in exercising any section 84
power on a WCPFC boat. Notably, when exercising a power on the
basis that the officer believes that boat has been used in a
new section 105H or 105I offence,
they must as soon as practicable show the vessel s master a copy of
the relevant WCPFC measure that has been violated: new
subsection 87FD(2).(25) There is no requirement
that it be in any language other than English. The officer must
also notify the flag State as soon as practical of the boarding and
inspection (new subsection 87FD(3)) as well as a
report of the exercise of the powers once these have been
completed.(26) Should the master ask that an objection
or statement be noted in the report, it must be down so. Officers
are no obligation to bring this right to the attention of the
Item 36 inserts two
new offences, new sections 105AA and
105AB, into the FMA for persons us[ing] Australian
registered vessels for fishing in the High Seas portion of the
WCPFC area. The offences occur where the vessel is fishing
for a species covered by the WPCFC without proper authorisation.
The Explanatory Memorandum states that:
There are already some provisions in the
Fisheries Management Act 1991 which will, in part, fulfil
the obligations of Article 24(2). These include sections 95(5),
95(1AA), 105A and 105B of the Fisheries Management Act
1991 which make it an offence for a concession holder to
contravene a condition of his/her concession or for a master of an
Australian-flagged boat to engage in unauthorised fishing on the
high seas. These provisions do not adequately cover crewmembers
using a fishing boat where there is no concession in place relating
to the fishing being undertaken by the boat or the person.
Because of the broad definition of
fishing in existing section 4 of the FMA, all crew members would be
subject to both new section 105AA and
105AB offences. New section 105AA
is a strict liability offence and is subject to a maximum penalty
of 60 penalty units ($6 600). In relation to new section
105AA, the Explanatory Memorandum comments that:
A strict liability offence is considered
appropriate in this case, as the requirement to prove all fault
elements could create a substantial impediment to the prosecution
of such offences. Evidence of intention and recklessness is often
very difficult to obtain in the absence of admissions or
independent evidence. In the context of a boat operating without
authorisation, there will not be an observer on board to provide
independent evidence of this nature. The matter is particularly
within the knowledge of the defendant and admissions are
particularly difficult to obtain if a foreign citizen is involved.
However, where such evidence is available it would be desirable to
prosecute for the full offence that carries a much greater penalty.
Broadly similar strict liability
offences already exist in the FMA, for example in subsections 95(2)
and (5) and sections 99 and 100.
It is worth noting that, for strict liability offences,
(reasonable) mistake of fact is available as a complete defence. In
relation to new section 105AB, if crew members
were ignorant of the fact that the fishing in question was not
authorised by a concession, what level of inquiry (say of the
vessels master or owner) would they have to demonstrate that this
mistake was reasonable? Of course, if the Commonwealth decided on
the evidence available that some crew members should not shoulder
the blame for any unlawful fishing, it may exercise its discretion
not to prosecute them.
Existing sections 105A-D cover offences involving
Australian-flagged vessels outside the Australian Fishing Zone
(AFZ).(29) Existing subsection 105D(4) allows AFMA to
authorise officials of a foreign country party to the FSA to
investigate a possible contravention of a regional management and
conservation measure. The vessel must have been boarded on the High
Seas and the foreign country must have informed Australia that
there are reasonable grounds for suspecting the contravention. The
authorisation can only be given if AFMA is satisfied that the
investigation will be carried out in accordance with the FSA. The
authorisation can be withdrawn at any time. Item
39 simply extends these provisions to suspected
contraventions of WCPFC management and conservation measures.
Existing subsection 105D(5) allows the Attorney-General to
authorise a foreign country to enforce its law regarding a regional
measure contravention. This authorisation can be given on
completion of an investigation referred to above and only if the
enforcement will be taken in accordance with the regional measure.
The authorisation can be withdrawn at any time. Item
40 simply extends these provisions to suspected
contraventions of WCPFC management and conservation measures.
New sections 105DA-DD create offences for
Australian citizens aboard foreign vessels that contravene WCPFC
measures in the either foreign waters or High Seas covered by the
WCPFC area. The other main elements (the person uses the boat for
fishing, the fishing is for WCPFC stock etc) are essentially the
same as for new sections 105AA and
105AB. Again, there are both offences in which
fault must be proved and ones of strict liability. A person cannot
be convicted under new sections 105DA-DB (which
deal with Australian citizens unlawfully fishing in foreign waters)
if they have already been convicted or acquitted by the relevant
foreign State for the same act of unlawful fishing.
New sections 105H
and 105I create offences of persons using a WCPFC
boat for fishing in a way that contravenes WCPFC measures on the
high seas. The Attorney-General s consent is required before a
charge can be proceeded with by Australian authorities: new
section 105J. The Attorney-General must take into account
views expressed by the foreign government(30) whose boat
is alleged to be involved in the offence. Note that the
Attorney-General s consent is not necessary to arrest and charge a
person, nor is required to commence proceedings for their
extradition to Australia (if relevant) or for remanding them in
custody or on bail. However, if the Attorney-General does not give
consent to the prosecution, any extradition or remand proceedings
would also cease.
Item 44 inserts new section
108B regarding the disclosure of personal information. The
sort of information, and the circumstances under which it may be
disclosed, largely replicate items 1-2. However,
in new section 108B it is the Minister (rather
than AFMA) that has the power to disclose, or authorise it, and the
disclosure can only be made to foreign governments and/or their
instrumentalities, or international intergovernmental bodies.
currently allows regulations to be made to apply an infringement
notice scheme to alleged offences under existing section 93 and 95.
This scheme allows for a fine to be paid as an alternative to
prosecution. Item 46 will extend this to alleged
existing section 100 offences persons using a foreign boat in the
AFZ for unauthorised commercial fishing. Although no reason is
given for the extension, presumably this is to allow another means
of sanction where it is considered to difficult or inappropriate to
attempt to gain a conviction.
Item 47 inserts
new paragraph 168(2)(na) to allow regulations to
be made requiring the use of vessel monitoring systems on
Australian vessels on the High Seas in the WCPFC area. These
systems will only be required when the vessel is in the area for a
purpose related to fishing for a WCPFC fish . This provision is
this is to enable compliance with Article 24(8) of the WCPFC.
The Border Protection Legislation Amendment (Deterrence of
Illegal Foreign Fishing) Bill 2005 (the Border Protection Bill) was
introduced into Parliament in February 2005. It proposes to amend
the Fisheries Management Act 1991(32) to
provide for a law enforcement and detention regime for suspected
illegal foreign fishers consistent with the Migration Act
The current Bill also deals in part
with the issue of suspected illegal foreign fishers. To the extent
that it is allowable under the WCPFC, it is obviously desirable
that the law enforcement and detention powers relating to
violations of WCPFC offences are consistent with other comparable
other offences in the FMA as (prospectively) amended by the Border
Protection Bill. Items 48 to 59
are designed to achieve this consistency. However, even should the
Border Protection Bill come into force, these items will not
themselves come into force until the relevant enforcement and
surveillance provisions in the main part of the Bill are
proclaimed. It is likely that such proclamation will only occur
once the States that are party to the WCPFC have decided on an
enforcement regime for the Convention and the Commonwealth
Government has decided that this regime is compatible with the main
elements of the Border Protection Bill.
As noted in the background section of this Digest, once the
WCPFC came into force in 2004, ratification of the Convention by
Australia was necessary if Australian vessels were continue to fish
for tuna and other species coming within its scope. This includes
fishing taking place within Australia s AFZ. The various major
provisions in the Bill, particularly those related enforcement will
be required as WCPFC conservation and management measures and
boarding and inspection arrangements are progressively agreed and
implemented by Convention members.
The readers attention is drawn to the apparent drafting error
affecting the definition of seriously violates a WCPFC conservation
and management measure in new subsection 87FC(5).
If the analysis in the main provisions section of this Digest is
correct, the provision does not properly reflect the width of the
WCPFC and will presumably require amendment.
However, if proclamation does not take
place within this time, the relevant provisions (items 3, 5
and 7 in the table contained in clause 2 of the Bill) will
automatically be repealed.
The provisions in items
9 and 10 in the table contained in clause
2 of the Bill.
In this context coastal States are
countries in whose EEZ the relevant fish stocks occur.
FSA, Article 63(2).
FSA, Article 17(2).
The Fisheries Legislation Amendment
Act (No. 1) 1999
. The relevant Bills
provides more detail on the FSA.
The contribution is small, due to the
relatively low value of the Australian catch in the Convention
area. The annual contribution is around US$17 000 from a budget of
Paragraphs 7.99-106, at pp.
That is, within two years of the WCPFC
entering into force.
WCPFC, Article 26(2).
Senator Chris Ellison, Senate
Hansard, 17 March 2005 pp. 9-10.
There would appear to be no need for
the existing section 168 of the FMA, which contains the
regulation-making power, to be amended to specifically allow
At p. 15.
Outcome 16, at p. 22.
At p. 29.
A fishing concession is defined in
existing section 4 of the FMA as a statutory fishing right or
fishing permit or a foreign fishing licence .
Article 25(4) says in part Each member
of the Commission shall ensure that, where it has been established,
in accordance with its laws, that a fishing vessel flying its flag
has been involved in the commission of a serious violation of the
provisions of this Convention or of any conservation and management
measures adopted by the Commission, the vessel concerned ceases
fishing activities and does not engage in such activities in the
Convention Area until such time as all outstanding sanctions
imposed by the flag State in respect of the violation have been
Of course, AFMA may have administrative
guidelines setting out the situations under which concessions
should be suspended under section 38 of the FMA.
WCPFC boats are foreign boats
registered in a State that is a party to the WCPFC.
See particularly existing sections
87A-87J of the FMA.
Although the restrictions do not apply
in respect to an officer s power in relation to a number of
existing offence provisions listed in new subsection
This authorisation can be in general
terms rather than specific authorisation presumably the officer
does not have to wait for a response from the flag State as long as
the intended action is within the scope of an enforcement regime
previously agreed between members of the WCPFC.
The flag State must, for example,
cooperate with the reporting State in taking appropriate
enforcement action: Article 25(6).
Note that the same applies to existing
section 105F, which is intended to implement the FSA.
As well as the sections of the FMA and
regulations relating the violation of that measure.
The exercise of the powers may take
some time to complete if for example if an officer orders that the
boat be taken into port in Australia from the High Seas.
At. p. 22.
At pp. 22-23.
The outer limits of the AFZ are the
same as the EEZ.
Due to diplomatic issues, Taiwan is
referred to as a entity rather a State, but in practice there is no
Although, as the Explanatory Memorandum
notes at p. 28, the Minister may, under the existing section 163,
delegate this power to AFMA or the department.
And the Torres Strait
Fisheries Act 1984.
10 May 2005
Bills Digest Service
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