Bills Digest no. 102 2007–08
Fisheries Legislation Amendment (New Governance
Arrangements for the Australian Fisheries Management Authority and
Other Matters) Bill 2008
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
Contact officer & copyright details
Passage history
Fisheries Legislation Amendment (New
Governance Arrangements for the Australian Fisheries Management
Authority and Other Matters) Bill 2008
Date introduced: 20 March 2008
House: Representatives
Portfolio: Agriculture, Fisheries and
Forestry
Commencement:
Section 1 to 3 on day of Royal Assent; Schedule 1 on 1 July 2008;
Schedules 2 and 4 on 28th day after the day of Royal
Assent; Schedule 3 on a date fixed by Proclamation or the day after
a twelve month period from the date of Royal Assent.
Links: The relevant links to
the Bill, Explanatory Memorandum and second reading speech can be
accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The main purposes of the Bill
include:
- amending the governance arrangements of the Australian
Fisheries Management Authority to make them consistent with the
recommendations of the 2003 Uhrig Review on Corporate Governance of
Statutory Authorities and Office Holders;
- strengthening enforcement provisions of the Fisheries
Management Act 1991; and
- enhance the enforcement provisions to take action against
foreign vessels contravening international fisheries management
measures.
Mr John Uhrig was commissioned by the former Prime Minister, Hon
John Howard, to review the corporate governance of statutory
authorities, and to examine particularly the relationships between
the statutory authorities and the responsible Minister.[1] The stated purpose was to
improve the performance of these bodies without in any way
impinging or compromising on their statutory duties. The Review
undertook to do the following:
A key task was to develop a broad template of
governance principles that, subject to consideration by government,
might be extended to all statutory authorities and office holders.
As part of the process of developing that broad template, the
Review was asked to consider the governance structures of a number
of specific statutory authorities and best practice corporate
governance structures in both the public and private
sectors.[2]
The Review found that there were a number of governance issues
affecting several of the authorities that were part of the Review.
Some of those factors included
unclear boundaries in their delegation, a lack
of clarity in their relationships with Ministers and portfolio
departments, and a lack of accountability for the exercise of their
power. This lack of governance arises primarily due to a hands off
attitude assumed by many when dealing with statutory authorities.
This situation is often further complicated by the presence of a
board, particularly those where it is impractical for government to
provide the full governing powers required to be effective.[3]
According to the Department of Finance and Deregulation website,
the Australian Government s financial framework is established and
supported by key financial management and accountability
legislation, comprising:
The FMA Act sets out the financial management, accountability
and audit obligations of agencies (including Departments) that are
financially part of the Commonwealth (and form part of the General
Government Sector), in particular:
- for managing public resources efficiently, effectively and
ethically; and
- for maintaining proper accounts and records of the receipt and
expenditure of public money.[4]
The Commonwealth Authorities and Companies (CAC) legislation
comprises:
The CAC Act sets out the
financial management, accountability and audit obligations on
Commonwealth statutory authorities and companies in which the
Commonwealth has at least a direct controlling interest. In
particular, the Act provides:
- the reporting and audit obligations for directors of
authorities;
- standards of conduct for officers of authorities; and
- requirements for ensuring that wholly-owned Commonwealth
companies keep Ministers and Parliament informed of their
activities.[5]
As at 1 May 2008, there are 100 agencies subject to the FMA
Act and 89 bodies subject to the CAC Act.[6]
Australian
Fisheries Management Authority Current Governance Arrangements of
AFMA
The Australian Fisheries Management Authority (AFMA) is a
statutory authority responsible for the management and use of
Commonwealth fish resources.
AFMA s operations are overseen by an eight member board of
Directors, consisting of:
- a Chairperson;
- a Director representing the Commonwealth Government;
- AFMA s Managing Director; and
- five directors nominated via a legislative selection
committee.
The Board is responsible for setting the policy framework and
for ensuring that adequate resources and expertise are available to
meet AFMA s legislative obligations. Responsibility for the
implementation of fisheries management decisions and AFMA s
day-to-day business affairs resides with the Managing
Director.[7] A full
list of AFMA s functions are set out in section 7 of the
Fisheries Administration Act 1991.
The governance arrangements proposed by the Bill are in
accordance with the recommendations of the Uhrig Review and
contained in the Department of Finance s policy document
Governance Arrangements for Australian Government
Bodies. This provides guidance in implementing the changed
governance arrangements for the AFMA. It is intended that corporate
governance arrangements of statutory authorities be such that they
promote the effective implementation of policy. [8]
In the case of AFMA, the governance arrangements will be changed
so that it will be a prescribed agency under the FMA Act
and a statutory agency under the Public Service Act
1999.
These bodies are financially part of the
Commonwealth, holding public money that can only be spent under the
authority of an appropriation from the Australian Parliament. The
FMA Act should especially apply to primarily budget-funded bodies,
regulators and bodies that raise public money under a Commonwealth
law.[9]
The Bill removes the existing board of directors and establishes
a Commission with a Chairperson and a limit of 8 commissioners
including the Chief Executive Officer (CEO). The CEO replaces the
existing position of Managing Director. The Commission and the CEO
will perform the functions and powers of AFMA. The Commission will
be responsible for domestic fisheries management and the CEO for
foreign compliance matters. The CEO will report directly to the
Minister on these matters and the Explanatory Memorandum suggests
that this may have implications for foreign policy and should also
enable a better integration with border protection operations.
The Bill also sets out detailed provisions requiring
Commissioners to disclose conflicts of interest on appointment and
during their terms of office are obliged to report any conflicts of
interest arising in relation to a matter under consideration by the
Commission.
Australia has responsibilities under the 1995 United Nations
Agreement on the Conservation and Management of Straddling Fish
Stocks and Highly Migratory Fish Stocks (UN Fish Stocks Agreement)
which Australia ratified on 23 December 1999.
To date Australia has taken on greater
responsibilities for monitoring and controlling the activities of
domestic and foreign fishing vessels on the high seas as well as in
the Australian Fishing Zone (AFZ). Australia has an important role
in negotiations to establish regional management and conservation
measures and to secure the rights of existing and prospective
fishing by Australian vessels. This is particularly applicable with
highly migratory species, where the conservation measures and
exploitation rates adopted for the high seas have a direct impact
on sustainability levels inside the AFZ. [10]
Australia is a key member of a number of international and
regional fisheries and fisheries related forums, including the
Commission for the Conservation of Southern Bluefin Tuna, Indian
Ocean Tuna Commission, the Convention for the Conservation and
Management of Highly Migratory Fish Stocks in the Western and
Central Pacific Ocean and the Convention on the Conservation of
Antarctic Marine Living Resources.
In Schedule 3, the Bill widens a number of the definitions to
broaden the application of the Fisheries Management Act
1991 to encompass references to fish stocks by any prescribed
international fisheries management organisation and not just the UN
Fish Stocks Agreement. It provides a more comprehensive framework
to allow for authorised officers to exercise powers under section
84 of the Fisheries Management Act 1991 more broadly. That
is, under certain circumstances, to allow for the boarding and
inspection of foreign vessels not only in Australian waters, but
also on the high seas or in the waters of a foreign country. These
provisions can be found in new section 87HA. According to the
Explanatory Memorandum:
Under international law Australia has the right
to take surveillance and enforcement action against foreign vessels
in relation to breaches of international fisheries management
measures as are authorised by the country to which the vessel
concerned is flagged.[11]
According to the Explanatory Memorandum there are no significant
additional administrative costs to the Australian Government. There
is no reduction in AFMA s net funding or cash reserves. However
changes to AFMA s tax liabilities will save AFMA approximately
$900,000 per annum. Some of these savings will be passed on to the
industry through reduced annual levies. AFMA estimates that
increased reporting requirements required by the FMA Act and the
Public Service Act will cost approximately $250,000 annually. The
amendments to deter illegal, unreported and unregulated (IUU)
fishing will not have direct additional implications. AFMA will
fund apprehensions and prosecutions from its existing compliance
budget in the short term.[12]
Item 21, new subsection 8(2) provides that
Australian Fisheries Management Authority (AFMA) will no longer
have the power to acquire or dispose of real or personal property,
cannot enter into contracts or have the power to lease land or
buildings for the AFMA. It should be noted that certain other
agencies still have some or all of these powers even though they
are subject to the FMA Act and a prescribed agency under the FMA
Regulations 1997.
Item 25, new subsection 10(1) provides that the
AFMA is a body corporate, it must have a seal and may sue or be
sued in its own name. New subsection 10(2)
provides that the seal must only be used for authorised purposes
for the performance or exercise of domestic fisheries functions or
foreign compliance functions by AFMA. New subsection
10(3) provides that judicial notice of the seal on a
document must be taken by courts, judges or persons acting
judicially.
New subsection 10B(1) provides that there will
be a Commission and a Chief Executive (CEO). The Commission will
have responsibility for domestic fisheries management (new
subsection 10B(2)) while the CEO is responsible for the
foreign compliance functions and giving effect to decisions of the
Commission (new subsection 10B(3)). Importantly,
the CEO is not subject to direction by the Commission in relation
to the CEO s powers and functions under the Financial
Management and Accountability Act 1997 (FMA Act) or the
Public Service Act 1999 or the foreign compliance
functions and powers of AFMA (new subsection
10B(4)).
New subsection 10C(1) provides that the
Minister can give written directions to the CEO relating to the
foreign compliance functions and powers of AFMA. A direction can
relate to one situation only (new subsection
10C(2)). Directions must be tabled within 15 days after
the direction is made (new subsection 10C(4)).
Note that the wording of subsection 10C(4) is
expressed in terms of the phrase of that House is somewhat unclear
in terms of its plain English meaning. The Minister can determine
not to table a direction if he or she determines it would be
prejudicial to the national interest to do so (new
subsection 10C(5)). Both the direction and the
determination made under section 10C are not legislative
instruments (new subsection 10C(6)) and so they
cannot be disallowed by Parliament.
New subsection 11(1) provides the constitution
of the Commission will consist of a Chairperson, part-time
commissioners and the CEO. There will be a limit of 8 part-time
commissioners including the Chairperson (new subsection
11(2)).
As is currently the case with the AFMA Board (except the
Managing Director) the Commissioners will be appointed by the
Minister.
Item 26, new subsection 12 (3) provides a list
of eligibility criteria for appointment as a commissioner and also
lists the areas of expertise from which persons may be considered.
These are broadly similar to the criteria in existing section 30
that relate to the five directors that are nominated via the
legislative selection committee.
However a new provision is that a commissioner must not hold any
of the following (new paragraph
12(3)(b)):
- an executive position in a fishing industry association;
- a fishing concession under the Fisheries Management Act
1991;
- a fishing licence or permit under the Torres Strait
Fisheries Act 1984;
- an executive position in a company that holds a fishing
concession, licence or permit.
The appointment of a commissioner is automatically terminated if
the Commissioner becomes the holder of any of the above positions
(new subsection 21(3)). These are presumably
designed to minimise any conflicts of interest.
Item 42, new subsection 20(1) provides that a
commissioner must give the Minister a written statement of any
interest, pecuniary or otherwise which may conflict with the
functions of the commissioner when appointed. A Commissioner must
make disclosures during the term of appointment if conflicts arise
(new subsection 20(2)) and as soon as possible
after they become known to the Commissioner (new subsection
20(3)). A register of interests must be maintained by the
Commission (new subsection 20(4)).
Item 55, new subsection 23(6) provides that if
a commissioner has to leave a meeting because an interest in a
matter has arisen and he or she can no longer participate in the
meeting and there is no longer a quorum, the remaining
commissioners will constitute a quorum for the meeting s
deliberations and decisions. The Commission must keep minutes
(new subsection 23(7)) and the Commission may
invite persons to meetings to advise commissioners on any matter
(new subsection 23(8)).
Item 56, new subsection 24(1) provides that a
commissioner with an interest in a matter being considered by a
meeting must disclose the nature of the interest to the meeting and
do so as soon as he or she becomes aware of the facts (new
subsection 24(2)). These disclosures are to be recorded in
the minutes (new subsection 24(3)). The
Commissioner is not to be present when the matter is dealt with and
must not participate in any decision on the matter (new
subsection 24(4)) unless the Commission determines
otherwise and that will be recorded in the minutes (new
subsection 24(6)).
New subsection 25 (1) provides the Commission
is taken to have made a decision without a meeting if a majority of
commissioners agree and the agreement is in accordance with a
pre-determined method and all commissioners were informed of the
proposed decision. The Commission must keep a record of such
decisions (new subsection 25(4)).
Item 66, new section 68 provides that the staff
of AFMA will be employed under the Public Service Act 1999
(new subsection 68(1)) and that for the purposes
of the Public Service Act 1999 AFMA will be a
statutory agency with the CEO as its Head.
Item 72 repeals Division 8 of Part 2 which
relates to the financial activities of AFMA as a CAC Act
agency.
Item 73, new section 87 is inserted which
provides that AFMA must prepare and submit an annual report to the
Minister for presentation to Parliament. New
subsection 87(2) lists the elements to be
contained in the report.
Item 79, new section 92 provides that the
Commission may delegate functions and powers of the Authority to
the CEO in relation to domestic fisheries management. The CEO is
subject to the directions of the Commission in relation to this
delegation of power (new subsection 92(2)). The
CEO may then sub-delegate these powers, except the power of
delegation (Acts Interpretation Act 1901 section
34AB) (new subsection 92(3)).
New section 94B provides for the establishment
of the AFMA special account for the purposes of the FMA Act .
Item 111 repeals Division 2 of Part 8 Selection
and nomination process for members of the Statutory Fishing Rights
Allocation Review Panel.
Provisions relating to the appointment of Presiding member and
the Acting Presiding Member have been transferred from the
Fisheries Administration Act 1991 to the
Fisheries Management Act 1991. New
sections 139 to 141Q relate to the operations of the
selection committees which as the Explanatory Memorandum states
retains the relevant process for nominating members for the
Minister to appoint to the Statutory Fishing Rights Allocation
Review Panel.[13]
Existing sections 101-101AA contain offence provisions dealing
with foreign boats equipped for fishing or with other fishing
equipment being unlawfully in Australian waters. However, the
offences do not generally occur if the boat s fishing equipment is
properly stowed away. Schedule 2 makes some technical amendments to
clarify the operation of these provisions to make then easier to
enforce. However, the amendments do not appear to materially change
the law.
Item 1, subsection 4(1) is amended by inserting
a definition of Australian national to include a citizen, a
resident, or a body corporate incorporated in Australia or any
other body corporate that carries on its activities principally in
Australia. The definition is required because item
52 introduces offence provisions applicable to Australian
nationals that contravene international fisheries management
measures.
Under Part 6 of the Fisheries Management Act 1991,
authorised officers have wide-ranging enforcement powers, including
at-sea boarding and inspection powers. However, in relation to
international fisheries, these powers currently generally only
apply to foreign boats registered in countries that are parties to
the UN Fish Stocks Agreement. Item 32 expands
these powers so that they can be used in relation to enforcing
other international (including regional or bilateral) fisheries
agreements or arrangements to which Australia is a party.
Specifically, new subsection 87HA(1) provides
that an officer may exercise powers under existing section 84 if he
or she believes that a foreign boat has contravened international
fisheries measures and the action taken by the officer is
authorised by the country of nationality of the boat.
New subsection 87HA(2) provides that an officer
may exercise powers under section 84 in relation to a foreign boat
on the high seas if he believes it has been used, is being used or
intended to be used for fishing and the appropriate country of
nationality of the boat has authorised the exercise of those
powers.
New subsection 87HA(3) provides that an officer
can exercise powers under section 84 in the waters of a foreign
country, in the Exclusive Economic Zone, territorial sea,
archipelagic waters or the inland waters of a foreign country with
the authorisation of the country of nationality of the boat and the
country in whose waters the boat is situated. Item 35, new
section 88A provides that regulations may provide that
some or all of the Act dealing the seizure and forfeiture of
property do not apply to foreign boats in specified circumstances.
Particular procedures may be specified in the regulations
(new subsection 88A(2)).
Item 52, new subsection 105E provides that a
person in a foreign boat on the high seas commits an offence if the
person contravenes an international fisheries management measure.
The maximum penalty is 60 penalty units or $6600. Strict liability
applies which means that the person is liable under section 6.1 of
the Criminal Code 1995 even in the absence of
negligence or intention. The defence of mistake of fact under
section 9.2 of the criminal Code is available (new
subsection 105E(2)). New subsection
105E(1) does not apply if the boat is authorised by the
country of nationality of the boat. New subsection
105EA provides that where an offence is committed and
there is evidence of fault elements of intention, knowledge,
recklessness or negligence in contravening an international
fisheries measure that would allow a prosecution to proceed, then a
much greater penalty will apply a maximum 500 penalty units or
$55,000.
New subsection 105EB(1) provides that the
Attorney-General is required to provide written consent before the
prosecution of a foreign national can proceed. The Attorney-General
must take account of the views of the country of nationality of the
boat (new subsection 105EB(2)). In the absence of
consent, there are to be no delays in arresting, charging or
commencing extradition proceedings or remanding an offender in
custody or on bail (new subsection 105EB(3)). If
the Attorney-General does not grant consent, the court cannot
proceed to hear the case (new subsection
105EB(4)).
New section 105F creates a strict liability
offence for an Australian national in a foreign boat in the
Exclusive Economic Zone, territorial sea, archipelagic waters or
internal waters of a foreign country and who contravenes an
international fisheries measure carrying a maximum penalty 60
penalty units or $6600. New section 105FA provides
that where an Australian national on a foreign boat in the
Exclusive Economic Zone, territorial sea, archipelagic waters or
the internal waters of a foreign country has committed an offence
and there is evidence of the fault elements of intention,
knowledge, recklessness or negligence in contravening an
international fisheries measure, then a much greater penalty will
apply 500 penalty units or $55,000.
New section 105H creates an offence where the
law of the country of nationality of the boat requires
authorisation to fish and the boat does not have that
authorisation. The penalty is 60 penalty units or $6600. Strict
liability applies to this offence.
New section 105I creates an offence that where
there is sufficient evidence of intention, knowledge, recklessness
or negligence for a person on a foreign boat on the high seas and
the law of the country of nationality of the boat require
authorisation and the fishing is not authorised and there is
evidence to support a prosecution, then the maximum penalty is 500
penalty units or $55,000.
Concluding comments
This Bill is one of many over the two years or so that have
dealt with implementation of the recommendations of the Uhrig
Review on Corporate Governance of Statutory Authorities and Office
Holders.[14] On the
face of it, the proposed governance changes may not have any
significant effect on either Commonwealth fisheries management
policy or AFMA s day-to-day operations. However, neither the second
reading speech nor the Explanatory Memorandum provide any detail
about whether stakeholders in the fisheries management sector have
been consulted regarding the proposed changes.
[12] Fisheries
Legislation Amendment (New Governance Arrangements for the
Australian Fisheries Management Authority and Other Matters) Bill
2008, Explanatory Memorandum, p.6.
Moira Coombs
14 May 2008
Bills Digest Service
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