Bills Digest no. 152 2005-06
Fisheries Legislation Amendment (Foreign Fishing
Offences) Bill 2006
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
Financial implications
Main Provisions
Endnotes
Contact Officer & Copyright Details
Passage History
Fisheries Legislation Amendment (Foreign
Fishing Offences) Bill 2006
Date introduced: 25 May 2006
House: House of
Representatives
Portfolio: Agriculture, Fisheries and Forestry
Commencement: Sections 1 to 3 commence on Royal Assent. The
operative provisions (Schedules 1 and 2) commence the day after
Royal Assent.
To provide for prison terms for certain offences of illegal
foreign fishing occurring within Australia s territorial sea.
Background
The basic convention regarding international law on fishing is
the 1982 United Nations Convention on the Law of the Sea (UNCLOS).
Australia is a party to UNCLOS, as are almost all its neighbours,
including Indonesia.
UNCLOS provides for a range of different national jurisdictional
zones out from the coastline. In relation to fishing, the two major
zones are the territorial sea and the exclusive economic zone
(EEZ). The territorial sea extends from a country s coastal
baselines(1) out to 12 nautical miles (nm), except in
cases where the distance to a neighbouring country is small and
thus the width of the territorial sea may be less. The EEZ goes
from the outer edge of the territorial sea out to 200 nm, except
again in cases where the distance to a neighbouring country is less
than 400nm thus resulting in a smaller EEZ.
UNCLOS allows countries to regulate fishing, including by
foreign vessels, in both its territorial sea and EEZ. However,
Article 73 of UNCLOS places limitations on sanctions against
unlawful foreign vessels in the EEZ. Specifically, foreign vessels
and their crews arrested for suspected unlawful fishing must be
released upon the posting of reasonable bond or other security.
Also, and of particular relevance to this Bill, any penalties on
conviction for a fishing offence in the EEZ cannot include
imprisonment unless there are agreements between the coastal state
concerned and the state whose citizens have been prosecuted for
illegal fishing. Australia has not entered into any such
agreements.
Commonwealth legislation enacted under the 1979 Offshore
Constitutional Settlement (OCS) provides the states and the
Northern Territory with the power to legislate, including with
respect to fisheries, over waters out to 3 nm from the relevant
coastline. The area lying beyond 3 nm out to the limits of the EEZ
is known as the Australian Fishing Zone (AFZ) and is generally
subject to Commonwealth jurisdiction. In some instances, the
Commonwealth has entered into cooperative agreements with a
particular state or the Northern Territory to alter these
jurisdictional arrangements where desirable for example where a
fishery straddles the 3 nm boundary and thus in limited
circumstances some aspects of state or territory fisheries law can
potentially extend beyond 3 nm.
Commonwealth law over foreign fishing vessels is contained in
the Fisheries Management Act 1991 (FMA), and with respect
to the special arrangements for the Torres
Strait area, the Torres Strait Fisheries Act
1984 (TSFA). Under the FMA, the most common offences under
which illegal foreign fishers are prosecuted are:
- using a foreign boat for commercial fishing in the AFZ without
proper authorisation, or
- being in charge of a foreign boat equipped with nets, traps or
other equipment for fishing without proper authorisation where the
nets etc are not stored and secured in an approved manner
Both of these offences have strict liability and fault versions.
Obviously strict liability offences are easier to prove for example
it is not necessary show that the accused ships master or crew
knew, or suspected, that they were in the AFZ when fishing. Strict
liability offences carry somewhat smaller fines (2,500 penalty
units or $275,000) as compared to the fault offences (5000 penalty
units or $550,000). However, if prosecutions for these
strict-liability offences are done in state or territory courts of
summary jurisdiction (for example, magistrates courts), the maximum
fine is reduced to 250 penalty units.
The TSFA also has a range of offences in respect of unlawful
fishing. Again, the penalties for these offences do not include
imprisonment.
As noted in the second reading speech to the Bill, some existing
secondary offences do carry prison terms. For example, obstructing
fisheries officers in the course of their duties carries a penalty
of up to 12 months imprisonment (FMA, section 108).
As mentioned earlier, state and territory fisheries law usually
applies out to 3 nm unless extended by a cooperative agreement with
the Commonwealth. As such, state and territory fisheries laws do
not thus generally extend into the EEZ and so are not restricted by
UNCLOS from having prison terms for foreign fishing offences. For
example, the Western Australian Fish Resources Management Act
1994 carries maximum penalties of two years imprisonment for
illegal foreign fishing in state waters.
This Bill was debated in the House of Representatives in the
week following its introduction.
Whilst the Australian Labor Party supported the Bill, it
criticised the Government for not doing enough to actually
apprehend the very large numbers of unauthorised foreign fishing
boats entering Australia s waters, particularly in the north. Much
of the debate centred on the effectiveness of, amongst other
things, the range of initiatives
recently announced in the 2006 07 budget. (2)
The Explanatory Memorandum to the Bill states:(3)
The proposed amendments to the FMA and TSFA would
have no direct financial impact. Indirectly, some additional costs
could be expected in relation to the legal proceedings and terms of
imprisonment involved. On the other hand, there are potential
benefits to Australia s fishing industry (and in reducing other
threats from illegal foreign fishing incursions) from custodial
penalties that would more effectively deter illegal foreign fishing
in Australia s waters.
Item 1 inserts a new section
100B offence of unlawfully(4) using a foreign
boat for commercial fishing within that part of Australia s
territorial sea which lies outside state / territory waters. This
means that, in general, the new offence will apply in the zone
between 3 nm and 12 nm from the coast. The various fault elements
that must be proven by the prosecution are effectively the same as
for the existing section 100A offence(5) (unlawfully
using a foreign boat for commercial fishing within the AFZ).
However, in addition to substantial fines,(6) the
section 100B offence will carry maximum penalties of either two or
three years imprisonment, depending on the size of the boat on
which the fishing took place.(7)
Item 2 inserts a new section
101AA offence of having a foreign boat equipped for
fishing within that part of Australia s territorial sea which lies
outside state / territory waters when the nets and other fishing
equipment are not stored and secured in the approved manner. The
offence applies to the person who is in charge of the boat or has
it their possession . The various fault elements that must be
proven by the prosecution are effectively the same as for the
existing section 101A offence. However, in addition to a
substantial fine,(8) the new section
101AA offence carries a maximum penalty of two years
imprisonment.
The bulk of these amendments insert references to the offences
of new sections 100B and 101AA
into various other provisions of the FMA.
Items 6, 7, 9 and 10 make some drafting changes
to the existing offences in sections 100A and 101A, but these
changes appear to be changes of form rather than any significant
change of substance. The relevant changes relate to what evidence
the defendant must show in order to demonstrate that certain
elements of the offences are not made out. The current language of
these sections states:
The only burden of proof that a defendant bears in
respect of [the relevant element] is the burden of adducing or
pointing to evidence that suggests a reasonable possibility that
the matter in question existed.
For example, a relevant element might be the question of whether
the boat s nets and other fishing equipment were stored and secured
in the approved manner. Items 7 and
10 delete the language quoted above and
items 6 and 9 replace it with a note stating that
subsection 13.3(3) of the Criminal Code Act 1995 applies
instead. Subsection 13.3(3) (and subsection 13.3(6), which applies
also) provides:
A defendant who wishes to rely on any exception,
exemption, excuse, qualification or justification provided by the
law creating an offence bears an evidential burden in relation to
that matter. The exception, exemption, excuse, qualification or
justification need not accompany the description of the offence ..
evidential burden, in relation to a
matter, means the burden of adducing or pointing to evidence that
suggests a reasonable possibility that the matter exists or does
not exist. [emphasis added]
Given that the highlighted section above is essentially the same
as the existing language found in sections 100A and 101A, it
appears there is no significant legal effect resulting from this
change. The Explanatory Memorandum, in commenting on the general
issue of the defendant s evidential burden,
states:(9)
The note to s 100B(4) follows current legal
drafting practice and states that the defendant bears an evidential
burden in relation to the matters in s 100B(4) and refers to the
relevant subsection of the Criminal Code. The reversal of
proof is appropriate here (and elsewhere in the Bill) where the
matter to be established is peculiarly within the knowledge of the
defendant and it would be significantly more difficult and costly
for the prosecution to disprove than for the defendant to
establish.
Part 1 Main amendments
Existing section 45 of the TSFA contains a number of offences
for unlawful fishing. These include:
- unlawfully using a foreign boat for commercial fishing
(paragraph 45(1)(a) and subsection 45(2)
- as part of a commercial fishing operation, unlawfully
processing or carrying fish caught by another boat ((paragraph
45(1)(k) and subsection 45(3), and
- unlawfully trans-shipping fish to another boat (paragraph
45(1)(m) and subsection 45(3).
All these carry penalties of fines at various levels, depending
on the relevant offence and who is being prosecuted, but no prison
terms apply.
Item 1 inserts four new sections (46A,
46B, 46C and 46D) which essentially replicate the existing
section 45 offences mentioned above. However these new offences
apply in that part of the territorial sea that lies within the area
of Australian jurisdiction as defined by the TSFA, but is not
within Queensland state waters. The various fault elements appear
to be the same as for the existing offences in section 45. In
addition to fines, the offences will carry maximum penalties of
either two or three years imprisonment, with three years applying
if the person prosecuted is the ship s master.
Existing section 49 contains the offence of a master of a
foreign fishing boat unlawfully bringing the boat into the part of
the Torres Strait that is a protected zone within Australian
jurisdiction. This offence is one of strict liability that is, no
fault elements need be proved. Item 2 inserts
new section 49A containing a similar offence, but
one only applying within that part of the territorial sea within
the Torres Strait protected zone that is outside Queensland state
waters. The maximum penalty for the new offence is a fine of 500
penalty units ($55,000) or two years imprisonment, or both. As it
carries a prison term, the offence is not one of strict
liability. The existing defence of an unforeseen emergency
requiring the securing of the safety of human life or of the boat
also applies. However defendants must prove that the emergency
existed rather than the existing language in subsection 49(2) which
requires them to satisfy the court . It is not clear whether under
existing subsection 49(2) the defendant must satisfy the court
according a balance of probabilities standard or a beyond
reasonable doubt standard. If the former, the change in terminology
may mean that a greater onus is placed on the defendant. Note also
that item 9 of Part 2 makes this change of
terminology to existing subsection 49(2).
Existing section 51 contains the offence of having a foreign
boat equipped for fishing in an area of Australian jurisdiction
when the nets and other fishing equipment are not stored and
secured in the approved manner. This offence is one of strict
liability. Item 3 inserts new section
51A containing a similar offence, but one only applying
within that part of the territorial sea within the Torres Strait
protected zone that lies outside of Queensland state waters. In the
case of a ship s master, the maximum penalty for the new offence is
a fine of 2,500 penalty units ($275,000) or three years
imprisonment, or both. For any other person, the maximum is a fine
of 500 penalty units ($55,000) or two years imprisonment, or both.
As it carries a prison term, a section 51A offence is not
one of strict liability. Again there is a terminology change
defendants must prove the defences listed in subsection 51A(2)
rather the existing language in subsection 51(4) which requires
them to satisfy the court . Note also that item 11
of Part 2 makes this change of terminology to existing subsection
51(4).
The bulk of these amendments insert into the TSFA references to
the new offences created by Part 1. They also make the changes of
terminology noted above.
- These are generally the low-water mark, but may be drawn
between coastal headlines and the like and around islands.
- $388.9m budget boost in fight against illegal foreign fishing
in Australian waters ,
Senator Abetz, Media Release 9 May 2006.
- Explanatory Memorandum, p. 3.
- That is, the boat is not authorised by an appropriate fishing
licence.
- See comments on items 6, 7, 9 and 10.
- The fines are the same as in the existing section 100A and
range up to $825,000 for an individual.
- The three-year term is applicable if the boat is 24 metres or
more in length.
- The maximum fine is the same as existing section 101A: up to
$550,000 for an individual.
- Explanatory Memorandum, p. 5.
Angus Martyn
14 June 2006
Bills Digest Service
Parliamentary Library
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ISSN 1328-8091
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