Bills Digest No. 51, 2004–05
Fisheries (Validation of Plans of Management) Bill
2004
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 & Copyright Details
Passage History
Fisheries
(Validation of Plans of Management) Bill 2004
Date
Introduced: 17
November 2004
House: Senate
Portfolio: Agriculture, Fisheries and
Forestry
Commencement:
On Royal
Assent.
To retrospectively validate
fisheries management plans made, amended or revoked under the
Fisheries Management Act 1991 and things done for the
purposes of such plans.
The Fisheries Management Act 1991 (the Act) provides
for plans of management to be made for Commonwealth fisheries so as
to regulate the operation of the fishery in question. The relevant
Commonwealth authority is the Australian Fisheries Management
Authority (AFMA). The process for making, amending and revoking
such plans are set out in the Act.
In his second reading speech, Senator Ian Campbell stated
that
a legal audit was undertaken last year which
identified that there is a potential argument that there may have
been an inconsistency in the process by which plans of management
were determined, amended or revoked before July 2003 by the
Managing Director or by the Acting Managing Director of AFMA .The
Australian Government is of the view that all current plans of
management are valid. However, it is important for industry that
these plans are placed beyond risk and are certain. The
consequences of a successful challenge could be significant. It
would undermine many of the existing arrangements and rules
underpinning the management of Commonwealth fisheries. This would
create uncertainty and instability within the
industry.(1)
Whilst there is nothing specific in the second reading speech or
explanatory memorandum about the nature of the potential legal
problem, one possibility is the fact that management plans were
made, amended or revoked by the AFMA managing director or acting
director in a number of different ways. For example, copies of
plans show that some were made by the managing director acting on
behalf of the AFMA board, whereas others are expressed to have been
made by the managing director acting as delegate of the Board.
Whilst it is understood that AFMA s legal advice is that these
variations do not affect the validity of the plans, the Bill is
designed put the issue entirely beyond doubt.
New section 3 provides that any determination,
amendment or revocation of management plans by the AFMA managing
director or acting director under section 17 of the Act is to be
taken as always having legal affect. Thus if there is a legal
problem as discussed above, new section 3
retrospectively validates the relevant plans. New section
3 also provides that anything done under or for the
purposes of such a plan is likewise deemed to be have always been
legally valid.
Endnotes
- Senate Debates, 17 November, p. 8.
Angus Martyn
29 November 2004
Bills Digest Service
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ISSN 1328-8091
© Commonwealth of Australia 2004
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Published by the Parliamentary Library, 2004.
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