Bills Digest no. 168 2006–07
Fisheries Legislation Amendment Bill 2007
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
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Fisheries Legislation Amendment Bill
2007
Date introduced:
23 May 2007
House: House of Representatives
Commencement: Proposed sections 1 to 3 commence
on Royal Assent. The majority of the operative provisions commence
28 days after Royal Assent. Items relating to the new forms of
licence under the Torres Strait Fisheries Act
1984 (see discussion of item 297 of Schedule 3 below)
commence 12 months after Royal Assent.
To amend various Commonwealth fisheries
legislation to, amongst other matters:
- amend various Ministerial powers and fisheries management tools
applying to Torres Strait fisheries
- make it easier to prosecute persons for illegal foreign fishing
in Australian waters Fishing Zone and the expand the existing
forfeiture provisions relating to such foreign fishing offences,
and
- make preparations to alter the governance of the Australian
Fisheries Management Authority in 2008.
The main piece of
Commonwealth fisheries legislation is the Fisheries Management
Act 1991 (the FMA). It regulates fishing
within the Australian Fishing Zone (AFZ), including fishing by
foreign-registered boats ( foreign boats ). The FMA also allows for
cooperative arrangements between the Commonwealth and relevant
States and the Northern Territory to manage fisheries that
straddle State/Territory coastal waters (these go out to three
nautical miles from coastal baselines) and the AFZ. The
Fisheries Administration Act 1991 (the FAA), created the
Australian Fisheries Management Authority (AFMA), which is the
relevant Commonwealth management body.
However, in the Torres Strait area, fisheries
regulation is principally through the Torres Strait
Fisheries Act 1984 (TSFA). The TSFA gives effect
to relevant aspects of the Torres Strait Treaty between Australia
and Papua New Guinea. Amongst other matters, the Treaty establishes
the Torres Strait Protected Zone. In turn, the TSFA provides for
the Protected Zone Joint Authority (the PZJA), which is responsible
for management of commercial and traditional fishing in the
Australian area of the Protected Zone and designated adjacent
Torres Strait waters. In this statutory role, the PZJA must
currently have regard to the rights and obligations conferred on
Australia by the Torres Strait Treaty, in particular the protection
of the traditional way of life and livelihood of the traditional
inhabitants, including their traditional fishing.
In recent years, the Commonwealth has been
combating increased levels of illegal fishing by foreign boats.
This has principally been in Australia s northern waters, but there
have significant incursions into the Torres Strait and also waters
off Western Australia. There also have been a number of campaigns
mounted to enforce Australian fisheries law against foreign boats
operating illegally in the remote southern fisheries around Heard
and MacDonald Islands.
As part of these efforts around Australia, the
FMA has been progressively amended to increase the range of
offences, make it easier to prosecute these offences, and impose
harsher penalties, including the confiscation of foreign boats,
fishing gear and any fish catch. Notably, a ships master or owner
does not have be convicted by a court of an offence to have their
boat, gear etc confiscated. An officer authorised under the FMA can
seize a foreign boat, gear etc that he or she believes on
reasonable grounds has been used in a commission of an offence. The
ships owner or master must then institute court proceedings within
a certain period to recover these goods effectively they would have
to demonstrate that no offence was committed in order for the court
to order the return of the boat and gear and order any suitable
compensation. More recently, the Border Protection Legislation
Amendment (Deterrence of Illegal Foreign Fishing) Act 1995
amended the FMA and TSFA to provide for a law enforcement and
detention regime for suspected illegal foreign fishers consistent
with the Migration Act 1958.(1)
According to the Explanatory
Memorandum:(2)
The amendments are expected to involve additional
administrative costs to the Australian Government. Those costs
relating to the Torres Strait fisheries are subject to cost-sharing
arrangements with the Queensland Government. No additional costs
will be imposed on the Torres Strait fishers as a result of the
amendments.
AFMA s current functions, as set out in
section 7 of the FAA, essentially relate to fisheries management,
including the collection of relevant information pertaining to
fisheries and fishing operations. Item 3 will
expand AFMA s functions to include the collection and dissemination
of information relating to the control and protection of Australia
s borders . Item 21 in Schedule 2
allows for regulations to be made under the FMA to authorise the
collection and disclosure of such information for purposes other
than those related to fisheries.
The FAA provides that AFMA consists of a
Chairperson, a managing director, a Government director and five
nominated directors . Whilst the nominated directors are appointed
by the administering Minister, there is an extensive statutory
process for their selection and appointment. Item
7 will allow the Minister to appoint directors of AFMA for
up to nine months without having to follow the statutory process.
The rationale for this, as explained in the Explanatory Memorandum
is that:(3)
The Government intends for AFMA to become a
commission on 1 July 2008. If the establishment of a commission is
delayed, a board will need to be retained beyond 30 June 2008 but
appointment processes can take up to six months. The current
legislation does not provide for the reappointment of
directors.
The change to a
Commission was previously announced in October 2006, and is in
response to the Review of the Corporate Governance of Statutory
Authorities and Office Holders (the Uhrig
Review).(4)
Items 4 to 7
make it easier to prosecute foreign fishing boats operating
illegally within Australia s 12 nautical mile territorial sea. The
relevant offences were introduced into the FMA by the Fisheries
Legislation Amendment (Foreign Fishing Offences) Act 2006 and
provide for a maximum penalty of 2 or 3 years imprisonment,
depending on the particular offence.(5) The
changes have the effect that it is not longer necessary to prove
that the person in charge of the boat was reckless as to whether
boat was in the territorial sea the position of the boat will now
be a strict liability element. The Explanatory Memorandum comments
that:(6)
The Commonwealth Director of Public Prosecutions
has not been able to prosecute people for these offences because
there have been difficulties collecting sufficient evidence to
prove that the people intended to be in the territorial sea. The
amendment is required to ensure that Australia can prosecute and
imprison persons guilty of committing a foreign fishing offence in
Australia s territorial sea. The amendments do not alter the other
elements of the offence provisions, with the overall offence
remaining one in which fault must be proven.
The defence of reasonable mistake of fact
under section 9.2 of the Criminal Code Act 1995 is
available in cases of strict liability elements.
Existing sections 106-106H allow for boats,
fishing gear and fish (including the proceeds of the sale of the
fish) to be forfeited to the Commonwealth under certain
circumstances. This can be as a result of a court order following a
conviction on certain fishing offences or the result of automatic
forfeiture where, in the case of a foreign boat, an authorised
officer has seized the boat because he or she believes on
reasonable grounds it has been used in a commission of a certain
offence.(7) Item 10 inserts
proposed section 106AAA which will allow a court
to order the forfeiture of fishing gear, fish or other equipment on
a foreign boat that was involved in certain offences in cases where
the order is made up to two years after the relevant offence
occurred. Essentially this new section will mean that the
Commonwealth will not have to prove that the various items were
actually used in the relevant offence for which a person was
convicted it will be up to the master or owner of the boat to show
that that they were not. Item 14 makes a similar
change by inserting proposed section 106AA, which
deals with automatic forfeiture.
Item 15 inserts
proposed sections 106AC-AE. The effect of existing
forfeiture provisions in the FMA is that foreign boats and gear
used for illegal fishing become the property of the Commonwealth
from the time the relevant offence occurred. Item
15 provides that fish subsequently caught using such
Commonwealth property also automatically become Commonwealth
property unless such action was specifically authorised by the
administering Minister. Similarly, anything subsequently added to
the Commonwealth property boat (such as a new engine, sonar etc)
also becomes property of the Commonwealth.
Item 19 inserts
proposed section 106HA. This deals with the
situation where the owner or master has instituted civil
proceedings to recover a foreign boat that has been seized by the
Commonwealth under the FMA s automatic forfeiture provisions. In
such proceedings, the owner or master would attempt to show that,
according to the balance of probabilities, no relevant foreign
fishing offence was committed. Proposed section
106HA provides that conviction of a relevant offence in a
criminal proceeding is admissible as evidence in the civil
proceeding that the person committed that offence. Presumably the
owner or master would have to produce evidence to the contrary to
rebut the conviction. The Explanatory Memorandum
comments:(8)
The provision provides for the exceptional
circumstance where the person bringing the civil proceedings has
further overriding evidence to show that the offence was not
committed. Previously, the fact that a person had been convicted of
the offence would not be sufficient to prove in civil proceedings
that the offence had been committed or who had committed it.
Moreover, evidence of a criminal conviction may not be admissible
in civil proceedings.
However, the above does not apply where the
conviction is under appeal or where it has been quashed, set aside,
or where a pardon been given: proposed subsection
106HA(2).
Item 5 broadens the
definition of fishing in existing subsection 3(1) of the TSFA to
make it consistent with that in the FMA. For example, the
definition now includes an activity that can reasonably be expected
to result in the locating of fish. The net effect is that the range
of situations which might involve unlawful fishing is significantly
increased.
Currently, the meaning of a traditional
inhabitant under the TSFA is taken directly from the Torres Strait
Treaty. Item 11 will enable a traditional
inhabitant to also be defined through regulations. The Explanatory
Memorandum states:(9)
A significant amount of administrative licensing
policy has arisen to permit a broader range of people to qualify as
traditional inhabitants than the current definition permits. This
issue is important as it is the basis for qualifying to hold an
indigenous (community) commercial fishing licence. These additional
categories of people include former PNG nationals who obtained
Australian citizenship through a Department of Immigration amnesty
in 1978/1979, children of these traditional inhabitants and
Aboriginal people living in the Australian coastal area adjacent to
the Torres Strait on Cape York. This item provides a clearer
legislative basis as the Torres Strait fisheries move to output
controls to ensure that current fishers do not lose
entitlements.
Regulations are of course disallowable by
either House of Parliament in the usual fashion.
Item 19 amends
section 8 by inserting additional objectives that
must be taken into account in the administration of the TSFA.
Currently the focus in section 8 is on the traditional way of life
and livelihood of traditional inhabitants. Item 19 proposes to
expand this to include environmental protection, management of
commercial fisheries for optimum utilisation and promoting economic
development and employment opportunities for traditional
inhabitants.
Existing section 12 gives the administering
Minister the power to grant permits that authorise a person to fish
for scientific purposes under the conditions set out in the permit.
Items 25-27 will allow a new class of permit to be
granted to authorise fishing for developmental purposes , including
assessing the commercial viability of a fishery or the viability of
certain fishing gear or methods. The Explanatory Memorandum
suggests that this is modelled on similar provisions contained in
the Fisheries Act 1994 (Qld).(10)
Items 64-80 amend various
aspects of section 15A. Section 15A deals with the content of
fisheries management plans. Item 65 will require a
management plan to include performance criteria and timeframes
against which the measures in the plan can be assessed. This brings
the TSFA into line with the FMA. Item 67 allows
the fishing capacity of a fishery to be determined on a periodic
basis. Currently there is no specific provision to enable the
regular review and determination of a fishery s capacity on a
regular basis. The objective seems to be to enable the fixing of a
periodic total allowable catch for a fishery.
Existing section 17 provides that the
administering Minister may require that the taking of fish in the
course of community fishing may only be done under licence.
Community fishing is essentially commercial fishing undertaken by
traditional inhabitants. Item 137 inserts
proposed subsection 17(IAA) which gives the
Minister the power to require that a person in charge of a boat
used for such fishing must have a master fisherman s licence. The
Explanatory Memorandum comments that the intent
is:(11)
so that output controls can be effectively
monitored by recording catch or use against a single licence
number. These amendments retain the position that community fishers
do not need to comply with this requirement unless a specific
declaration has been made. It is envisaged that declarations would
only be made where output controls are in place.
Part V of the TSFA is currently titled
Arrangements with Queensland . Item 161 retitles
this to Protected Zone Joint Authority in recognition of the fact
that, under section 30, the Chair of the Torres Strait Regional
Authority is also as a member of the PZJA.
One of the main existing features of Part V is
section 31, which allows the Commonwealth to come to an arrangement
with Queensland that provides that either the PZJA, the
Commonwealth or Queensland is to have the management of a
particular fishery in waters adjacent to Queensland , which may
include Queensland coastal waters. Such a fishery may be managed
under Commonwealth or Queensland law, according its location and
the relevant section 31 arrangement.
Where a fishery is managed by the PZJA under a
section 31 arrangement, item 169 will provide the
PZJA with the same powers the Commonwealth administering Minister
currently has to declare the use of certain equipment or boats to
be outside the meaning of traditional fishing . Similarly, where a
fishery is managed by the PZJA, item 170 will
enable the PZJA to determine a fishery management plan, something
the Commonwealth Minister can only presently do. The Explanatory
Memorandum comments that under:(12)
[current] section 31 arrangements with Queensland,
all commercial fisheries in the Torres Strait Protected Zone are
managed by the PZJA. This item will ensure the PZJA can manage
fisheries for which it has responsibility and enable the effective
introduction of output controls.
Note that under item 176, the
PZJA can delegate its powers and functions to an officer of the
Commonwealth administering department, AFMA employee, Commonwealth
officer in the Torres Strait Regional Authority or certain persons
acting in the service of Queensland or operating under Queensland
law. This power of delegation is the same applying to the
administering Minister under item 20 of Schedule 3.
Authorised officers under the TSFA may require
a boat to stop under certain circumstances for the purpose of
boarding it. If the boat fails to stop as directed, and it is not
an Australian boat, item 184 authorises the
officer to use reasonable force consistent with international law.
This power is the same as currently contained in paragraph
84(1)(aa) of the FMA.
Item 194 inserts
proposed sections 43A-43P. Section
43A requires that an officer must not use force in the
exercise of their powers unless it is necessary to ensure the
safety of an officer or to overcome obstruction of an officer in
the exercise of his or her power. Any force must not be more than
is reasonably required in the circumstances. This is consistent
with section 87J in the FMA.
Section 43B provides that an
officer is not liable to a civil or criminal action, suit or
proceeding relating to the exercise of powers under the TSFA or
regulations, as long as the officer was acting in good faith. This
protection is consistent with section 90 in the FMA.
Existing section 42 enables officers to obtain
search warrants from a Justice of the Peace where the Justice is
satisfied that there are reasonable grounds that there is
evidential material as to the commission of an offence under the
TSFA on any land or premises. These provisions are repealed by
item 189 and will be replaced by proposed
sections 43C to 43P (item 194), which are modelled on more
contemporary FMA provisions, with the exception of proposed
section 43K (see comment below). Amongst other things,
warrants will now be issued by Magistrates, and contain standard
provisions such as an occupier being entitled to be present during
a search. The Explanatory Memorandum notes that proposed
section 43K, which deals with compensation for damage to
electronic equipment during a search or subsequent examination, is
based on the current Office of Parliamentary Counsel drafting
direction 3.5 - Offences, penalties, self incrimination,
secrecy provision and enforcement powers. The equivalent
provision in the FMA, section 85G, is an older form of words, and
arguably more restrictive in its scope in terms of when
compensation is payable. It is not clear why section 85G has not
been updated to bring it into line with the above drafting
direction.
Items 237-240, 245 and 253
amend existing offences regarding illegal fishing within Australia
s 12 nautical mile territorial sea. The amendments have the same
affect as the equivalent amendments to the FMA introduced by
items 4-7 in Schedule 2 namely
that it is not longer necessary to prove that the person in charge
of the boat was reckless as to whether a boat was in the
territorial sea the position of the boat will now be a strict
liability element.
Item 255 adds
proposed sections 52AAA-52AAC, dealing with court
order forfeiture of a foreign boat, fishing gear etc. This is the
same as the amendment inserted into the FMA by item
10 in Schedule 2. Readers are referred to
that item for a discussion of the proposed provision. Item
259 makes a similar change by inserting proposed
section 52AA, which deals with automatic forfeiture, and
items 260-264 also make changes to the TSFA
equivalent to those proposed for the FMA in items
15-19 of Schedule 2.
Item 266 inserts
proposed sections 54B and 54C. These provide
alternative enforcement processes to criminal prosecutions and are
increasingly common in Commonwealth legislation.
Proposed section 54B allows
for a system of infringement notices. The detail will be set out in
regulations, but persons alleged to have committed an offence under
section 14 (which includes commercial fishing, or purchasing of
such fish, taken in contravention of a Ministerial notice) or
Division 2 of Part VI (a wide range of offences) may elect to pay a
fine of not more than one-fifth that the maximum that would have
payable if they had been successful prosecuted under the relevant
offence provision.
Proposed section 54C allows
for a system of demerit points. Again the detail will be set out in
regulations, but demerit points may be accrued either for
conviction of certain offences or following payment of
proposed section 54B infringement penalties. The
accrual of a certain number of points would lead to the suspension
or revocation of the person s commercial fishing licence.
Item 283 allows for
regulations to be made enabling the collection and disclosure of
various types of information by persons exercising powers and
functions under the TSFA. This appears to be intended to complement
item 3 of Schedule 1, which will
expand AFMA s functions to include the collection and dissemination
of information relating to the control and protection of Australia
s borders .
Section 19 of the TSFA currently allows for
the granting of a commercial fishing licence such a licence
authorises a person to use a boat to catch, carry or process fish.
Item 297 amends section 19 to introduce two
additional types of licences. The first is to commercially fish
without using a boat and then subsequently carry or process such
fish. The second type is to receive fish caught under a separate
licence or authorisation. The intent appears to be to allow greater
flexibility in managing relevant fisheries. The relevant part of
the Explanatory Memorandum comments:(13)
There are a number of commercial fishing
activities that may be undertaken without a boat. This amendment
will enable greater flexibility and a more comprehensive tool kit
to ensure the total allowable catch (TAC) of a fishery is
maintained under output controls, such as permitting regulation of
people who hand fish from shore. The provision also enables
operators to retain their valuable licences when they lose their
boat through misadventure at sea. Current arrangements rely on
policy decisions to address these matters on a case-by-case basis
these amendments will [also] allow the Minister to regulate fish
receivers to ensure the TAC is maintained under the output controls
receivers of Torres Strait fish currently comply with a voluntary
system of information provision to AFMA and they were regulated,
until recently, as fish buyers under Queensland law.
This Act covers the use of surveillance
devices for the investigation of Commonwealth offences and State
offences with a federal aspect . Subsection 6(1) lists a number of
offences under the FMA to which this Act applies. Items
1-6 add additional FMA offences to the subsection 6(1)
list, as well as for the first time adding a number of offences
under the TSFA. All the offences relate to foreign, rather than
Australian, boats.
Concluding comments
The amendments to the FMA increase the ability
of Australian authorities to enforce fisheries law with respect to
foreign boats operating in Australian waters. They are the latest
in a trend to place an increased onus on the masters and owners of
foreign boats to demonstrate that they were operating lawfully in
such waters, and where they cannot, to increase the ability of the
Commonwealth to confiscate the possessions of such persons.
The amendments to the TFSA are more
fundamental in that they are part of reforms negotiated over
several years to modernise the management of Australian fisheries
in the Torres Strait.
-
See the Digest for the (then) Bill for details at: http://www.aph.gov.au/library/pubs/bd/2004-05/05bd121.pdf
-
Explanatory Memorandum, p. 2
-
ibid, p. 4.
-
Governance changes to AFMA Media Release, Senator the
Hon Eric Abetz, 18 October 2006. For more background on the Uhrig
review, see Dr. Richard Grant, The Uhrig Review and the future of
statutory authorities , Research Note no. 50,
Parliamentary Library, 2004 05.
-
See the Digest for the (then) Bill for details at:
http://www.aph.gov.au/library/pubs/bd/2005-06/06bd152.pdf.
-
op. cit, p. 5.
-
As noted above, the ships owner or master can institute civil
proceedings to recover the boat (that is, have it returned to
them).
-
op. cit, p. 8.
-
ibid, p. 10.
-
ibid, p.12.
-
ibid, p. 18.
-
ibid, p. 21.
-
At: pp. 30 31.
Angus Martyn
30 May 2007
Bills Digest Service
Parliamentary Library
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