Bills Digest no. 86 2005–06
Fisheries
Legislation Amendment (Cooperative Fisheries Arrangements and other
Matters) Bill 2005
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
(Cooperative Fisheries Arrangements and other Matters)
Bill 2005
Date Introduced: 7 December 2005
House: Senate
Portfolio: Fisheries, Forestry and Conservation
Commencement: On Royal Assent
To amend Commonwealth fisheries legislation for three main
purposes:
- to clarify the meaning of some key objectives which the
responsible Minister and Australian Fisheries Management Authority
must pursue in administering the legislation and/or performing
their statutory functions
- to make it easier to vary cooperative fisheries arrangements
between the Commonwealth, States and the Northern Territory;
and
- to allow for a combination of Commonwealth, State and/or
Northern Territory law to apply in a fishery that is subject to
cooperative fisheries arrangements.
Background
The Fisheries Administration Act 1991 (FAA) and the
Fisheries Management Act 1991 (FMA) both contain a set of
objectives which the responsible Minister and Australian Fisheries
Management Authority (AFMA) must pursue in administering the
legislation and/or performing their statutory functions. Whilst
some objectives are only found in either the FAA or FMA, a number
are common to both. Relevant to the Bill, these include:
- 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, in particular the need to have regard to the impact of
fishing activities on non-target species and the long term
sustainability of the marine environment [emphasis added]; and
- maximising economic efficiency
in the exploitation of fisheries resources [emphasis added].
These particular objectives have been subject to litigation
brought by fishing operators against AFMA. Although the context of
the litigation has varied, it has often related to conditions
attached by AFMA to fishing permits, including vessel size, fish
quotas etc.
In relation to the maximising economic
efficiency objective, the leading case is Bannister
Quest v AFMA,(1) decided in 1997 in the Federal
Court by Drummond J. As noted by
Looking to the Future: A Review of Commonwealth Fisheries
Policy,(2) this case considered whether the
objective could only be achieved if there was explicit recognition
of the relative economic efficiency of individual operators by AFMA
in its implementation of fisheries management arrangements. This
view was rejected by the court, who found rather that AFMA should
take relevant decisions to
facilitate increasing the aggregate profit of the
whole body of operators in a particular fishery.(3)
In other words, AFMA should seek to maximise the collective
economic return from harvesting the total allowable catch of the
relevant fishery without regard to the efficiency (or any other
economic, social or equitable considerations) of individual
operators.
In relation to the ecologically sustainable
development (ESD) objective, ESD is not defined in the FMA
or FAA. However, by examining the relevant second reading speech
and other contemporaneous policy documents, Drummond J. in
Bannister Quest concluded:
Section 3(1)(b), on its true construction,
requires AFMA, in pursuing this objective in the performance of its
functions, to limit its consideration to matters
that relate to two things, ensuring the biological sustainability
of fish stocks and ensuring the protection of the marine
environment upon which those fish resources depend [emphasis
added].(4)
Looking to the Future: A Review of Commonwealth Fisheries
Policy recommended that a definition of ESD, consistent with
that contained within the Environment Protection and
Biodiversity Act 1999, be incorporated into fisheries
legislation.(5)
Responsibility for the management of fisheries in Australian
waters is shared between the Commonwealth, States and the Northern
Territory. Whilst constitutionally the States and the Northern
Territory have legal jurisdiction over waters out to three nautical
miles (nm), the Offshore Constitutional Settlement (OCS) enables
the Commonwealth, States and Northern Territory to enter into
cooperative arrangements to manage fisheries where desirable for
example where a fishery straddles the three nm boundary. Depending
on the particular arrangement, Commonwealth, State or Territory law
will apply throughout the fishery. Such a fishery may be managed by
AFMA or a State or Territory fisheries authority, or in some cases
a Joint Authority, comprising the Commonwealth and relevant State
or Northern Territory. (6)
Looking to the Future: A Review of Commonwealth Fisheries
Policy identified a number of concerns about the existing
cooperative fisheries arrangements:
- There is a lack of consistency and effective cooperation on
managing some fish stocks shared between Commonwealth, and state
and Northern Territory-managed fisheries.
- The arrangements are generally not consistent with the
principles of ecosystem-based fisheries management.
- There are increased costs to governments and fishers because of
duplication of logbooks, use of satellite based vessel monitoring
systems (VMS) and compliance programmes, and the lack of data
sharing between jurisdictions.
- There are unresolved issues on the management of fish resources
for different sectors, including recreational fisheries management.
Governments have also disagreed over:
- different management approaches for shared stocks
- the resolution of access to fisheries resources for competing
interests
- management of bycatch species
- duplication of licensing and enforcement requirements that
increase costs for commercial fishers
- the fact that most governments do not seek to maximise economic
efficiency in commercial fisheries.
State and territory governments, as well as the
Commonwealth, have identified areas for improvements to the
fisheries arrangements under OCS. The key areas include the above
concerns; sharing stock assessment and other fisheries data; and
greater coordination of fisheries research and development, and of
compliance and enforcement arrangements.(7)
Discussions with the States and Territories over addressing
these issues have been ongoing.
In Commonwealth legislation, the main provisions covering
cooperative fisheries arrangements are found in Part 5 of the FMA.
Schedule 2 makes two main changes to Part 5.
Firstly, it allows for OCS cooperative arrangements to be varied
(amended) without having to terminate the relevant arrangement and
substitute an entirely new one as is currently the case. The
ability to merely vary an arrangement allows the various management
plans, permits and other instruments that operate under it to
continue without danger of disruption, assuming these instruments
are consistent with the amended arrangement. An associated change
is that the power to enter into and terminate arrangements will be
given to relevant Commonwealth and State/Northern Territory
Ministers rather than the Governor-General and State/Northern
Territory Governors.(8)
The second main
change is to allow for a more flexible application of Commonwealth
and/or State/Territory law in fisheries managed by Joint
Authorities. Currently, where the fishery involves only one State
or the Northern Territory and the Commonwealth, either Commonwealth
or State/Territory law must apply to that fishery. Where the
fishery involves the Commonwealth and two or more States or a State
and the Northern Territory, only Commonwealth law may apply. The
Bill will change this by allowing State/Territory laws to apply to
a fishery which is managed by a Joint Authority involving the
Commonwealth and more than one State/Territory. Also it will allow
for a combination of the Commonwealth, State and North Territory
law to apply to any fishery which is managed by a Joint Authority.
In relation to this multi-jurisdictional approach, the second
reading speech comments:
This will work in practice by defining the areas
to which each law would apply, with these areas most likely
flanking each other but not overlapping. This option provides for
greater flexibility for cooperative management arrangements and the
ability to rationalise existing OCS fisheries
arrangements.(9)
The move to a more flexible approach in managing fisheries that
lie across jurisdictional boundaries was endorsed by the Natural
Resource Management Ministerial Council in October
2003.(10)
Items 1 and 4 combine to insert a definition of
the principles of ecologically sustainable development . The
definition is taken from definition of ecologically sustainable
development (ESD) in section 3A of the Environment Protection
and Biodiversity Conservation Act 1999 (EPBCA).
Does this insertion change the existing meaning of the ESD
objective? The question turns on whether the enactment of the
EPBCA, containing as does a broad statutory definition
what constitutes the principles of ESD,(11) overturns by
implication the rather narrow meaning given to the ESD objective by
Drummond J in Bannister Quest (see passage quoted in
background section above).(12) Any answer must be
speculative since both the subject matter and intent and of the
EPBCA is wider than the FMA/FAA(13) and the ESD concept
was still somewhat in its infancy when the FMA/FAA were drafted in
the early 1990 s. Even if as a matter of strict legal
interpretation Items 1 and 4 do
represent a change in the law, it is unclear to
what extent this will have any practical impact on AFMA s and the
Minister s decision-making under the FAA/FMA.
Item 3 replaces the existing maximising
economic efficiency objective in paragraph 6(c) with a new version:
maximising the net economic returns to the Australian community
from the management of Australian fisheries . This should have no
impact on AFMA s and the Minister s decisions under the FAA. As the
second reading speech expresses it:
The underlying meaning of the economic efficiency
objective will not change. That is, AFMA will still be obliged to
manage the effort and catch of a fishery to maximise the
difference, at a fishery level, between total revenue and total
costs, taking into account the impact of current catches on future
stock levels.(14)
Items 5-8 make corresponding changes in the FMA
as those noted above for items 1-4 for the
FAA.
Items 1 and 2 are
consequential changes to the FAA resulting from amendments made to
the FMA. The changes are of an administrative nature only.
Item 6 amends existing section 71 of the FMA to
allow for multi-jurisdictional arrangements to apply in fisheries
managed by Joint Authorities that is, it enables a fishery to be
managed in accordance with the law of the Commonwealth and
the law of the relevant State(15) (new
subsection 71(2)) or States (new subsection
71(3)). In cases where a multi-jurisdiction arrangement is
to apply, the geographical areas for which each jurisdiction has
management responsibility must be identified, such that they do not
overlap: new subsection 71(4). Also, for that part
of the fisheries to be managed by the State(s), the arrangement
may, if required by the Commonwealth, provide for giving effect to
Australia s obligations under international law: new
subsection 71(5).
Items 9 and 12-14 amend
various parts of existing sections 74 and 75 so as effectively
transfer the power to enter into and terminate arrangements from
the Governor-General and State/Northern Territory Governors to
relevant Commonwealth and State/Northern Territory Ministers.
Item 11 adds new section 74A.
Currently, Part 5 does not contain the legislative power to vary
cooperative arrangements only to create or terminate them.
Item 11 will allow for arrangements to be varied
by an instrument approved by relevant Commonwealth and
State/Northern Territory Ministers without having to terminate the
relevant arrangement and substitute an entirely new one. The
ability to vary an arrangement allows, subject to new
subsection 74A(4), that the various management plans,
permits and other instruments that operate under the arrangement to
continue without danger of disruption. The Ministerial powers of
creation, variation and termination cannot be delegated:
item 21.
Variations made through new section 74A must be
published in the Gazette. The variation cannot take effect
before the date of publication: new subsection
74A(2). Any plans of management, fishing permits etc that
are inconsistent with the variation cease to have effect to the
extent of the inconsistency: new subsection
74A(4).
An instrument which creates, varies or terminates an arrangement
is not a legislative instrument: items 10, 11 and
15. The Explanatory Memorandum to the Bill comments that
such instruments do not themselves
determine the law or vary the content of the law,
and does not affect any privileges, interests, obligations or
rights within the meaning of section 5 of the [Legislative
Instruments Act 2003].(16)
Items 17, 18 and 20 make
consequential amendments to existing sections 76, 77 and 78
respectively to take account of the possibility of
multi-jurisdictional arrangements applying within a fishery. Where
a fishery or part of fishery within a State s three nm coastal
waters is to be managed under Commonwealth law, the relevant waters
are to be treated as part of the Australian Fishing Zone for the
purposes of the FMA: item 17. Conversely, where a
fishery or part of fishery is to be managed under State law, the
FMA (other than Division 3) does not apply to the fishery:
item 18. However, matters relating to foreign
vessels always remain subject to Commonwealth law. Fisheries
managed by Joint Authorities for which part of the fishery is to be
managed under Commonwealth law, AFMA has the same powers over that
part as if it were managed by AFMA: item 20. These
items do not represent any significant changes to existing sections
76, 77 and 78.
Item 22 deals with various transitional and
commencement issues. In particular, the amendments made in
Schedule 2 do not apply to a State (and hence any
cooperative fisheries arrangements with that State) until the
Commonwealth Minister has published a notice in the
Gazette that amendments are to commence in respect of that
State. This will allow the States and Territories to amend any
necessary parts of their own legislation to align with the
provisions of the Bill.
Concluding Comments
As noted the main provisions section of this digest, one of the
main effects of the Bill is to make it easier to vary cooperative
fisheries arrangements between the Commonwealth, States and the
Northern Territory. The Bill also provides that any existing plans
of management, fishing permits etc that are inconsistent with a
variation cease to have effect to the extent of the inconsistency
(new subsection 74A(4)). With
this in mind, it will obviously be important to take into account
the interests of all relevant stakeholders in making any variations
to a cooperative arrangements applying to a particular fishery.
- (1997) 48 ALD 53.
- Department of Agriculture Fisheries and Forestry, June
2003.
- ibid., at p. 69.
- ibid., at p. 73.
- p. 18.
- The Commonwealth always retains legal jurisdiction for managing
foreign fishing operations in Australian waters.
- op .cit., p. 41
- The power to amend arrangements will likewise reside with the
relevant Commonwealth and State/Northern Territory Ministers.
- Senator the Hon. Chris Ellison, Senate Debates, 7
December 2005, p. 6.
- Council Communique, 3 October 2003, p. 4.
- For example, the new ESD meaning explicitly incorporates social
and equity considerations.
- Note that this case involved AFMA decisions made under the FMA
rather than the FAA, but the court s interpretation of the relevant
objectives of the FMA also apply to the corresponding objectives in
the FAA.
- See discussion of the in pari materia ( in analogous
cases ) principle in Pearce, Statutory Interpretation in
Australia, 2001 paragraphs 3.33 3.35.
- Senator the Hon. Chris Ellison, Senate Debates, 7
December 2005, p. 5.
- Note that for the purposes of Part 5 of the FMA, section 59
effectively provides that the term State also includes the Northern
Territory.
- Explanatory Memorandum, pp. 11 12.
Angus Martin
Law and Bills Digest Section
31 January 2005
Bills Digest Service
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