Bills Digest no. 88 2009–10
Fisheries Legislation Amendment Bill 2009
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
Date
introduced: 25 November
2009
House: House of Representatives
Portfolio: Agriculture, Fisheries and
Forestry
Commencement:
Section 1 to 3 on Royal
Assent. Schedules 1 and 2 come into force on the 28th day after the
Act receives 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/.
This Bill will amend the
Fisheries Management Act 1991 (the Act) to:
- introduce and enable electronic decision-making in relation to
certain fisheries licensing decisions, and
- authorise certain types of defensive equipment to be issued to
fisheries compliance officers.
This Bill will also amend the Torres Strait Fisheries Act
1984 to clarify those persons required to hold a fish receiver
licence.
The Australian Fisheries Management
Authority (AFMA) is a statutory authority established under the
Act. It is responsible for managing Australia s commercial
fisheries from three nautical miles off the Australian coast to the
boundary of the Australian Fishing Zone (AFZ), 200 nautical miles
out.[1]
The
Australian Fishing Zone
The AFZ is the same in area as Australia s Exclusive Economic
Zone (EEZ) and was first declared in 1979.[2] It relates only to the management and
protection of fisheries. The EEZ, however, relates to all resources
such as fish, oil, gas and minerals for example.[3] The AFZ is defined in section 4 of
the Act as follows:
Australian fishing zone means:
- the waters adjacent to Australia within the outer limits of the
exclusive economic zone adjacent to the coast of Australia;
and
- the waters adjacent to each external territory within the outer
limits of the exclusive economic zone adjacent to the coast of the
external Territory;but does not include:
- coastal waters of, or waters within the limits of, a State or
internal Territory; or
- waters that are excepted waters.[4]
The EEZ is defined in the Seas and
Submerged Lands Act 1973 by reference to Articles 55 and 57 of
the United Nations Convention on the Law of the Sea done at Montego
Bay on 10 December 1982. In its EEZ, Australia has sovereign rights
to explore and exploit, conserve and manage all natural resources
of the waters superjacent to the seabed and of the seabed and its
subsoil together with other activities such as the production of
energy from water, currents and wind .[5] Jurisdiction also extends to the
establishment and use of artificial islands, installations and
structures, marine scientific research, the protection and
preservation of the marine environment, and other rights and duties
.[6]
The AFZ is the third largest in the
world, covering approximately nine million square kilometres.
Within that area AFMA manages more than 20 Commonwealth commercial
fisheries. The Australian states and the Northern Territory are
responsible for the majority of recreational and commercial coastal
and inland fishing and for inland and coastal aquaculture
operations.[7]
Under international law, Australia has sovereignty over specific
waters called the territorial sea . The territorial sea extends
from the territorial sea baseline (or low water mark) and extends
seaward for 12 nautical miles. A number of activities are managed
within this area including mining for oil, gas and minerals,
fishing, shipping and management of marine parks, navigation and
shipwrecks.[8]
As AFMA explains:
The OCS is a jurisdictional arrangement between the Commonwealth
and States/NT which sets out responsibilities for offshore
fisheries, mining, shipping and navigation and crimes at sea. The
OCS provides for State/NT laws to apply inside three nautical miles
and for Commonwealth laws to apply from three to 200 nautical
miles.[9]
In practical terms, the arrangements rationalise the management
of particular species of fish. Under these arrangements, the states
and Northern Territory manage coastal or inshore species such as
rock lobster and abalone, while the Commonwealth manages offshore
or migratory species such as tuna .[10]
The Department of Agriculture, Fisheries and Forestry comments
that:
OCS fisheries arrangements allow the existing jurisdictional
boundaries described above to be overridden by agreement between
the Commonwealth and relevant States/NT. OCS arrangements are
developed when those default boundaries do not allow sensible
fisheries management. This allows management of fisheries on a
species basis.
Under the terms of these arrangements, the States/NT generally
manage coastal, slow moving or inshore species (such as rock
lobster and abalone) while the Australian Government manages
deepwater or migratory species and species subject to international
agreements (such as orange roughy, tuna and billfish) throughout
their range.[11]
AFMA provides fisheries management services in the Torres Strait
on behalf of the Torres Strait Protected Zone Joint Authority (the
Joint Authority) (which was established under the Torres Strait
Fisheries Act 1984).[12] It comprises the Commonwealth Minister for Agriculture,
Fisheries and Forestry; the Queensland Minister for Primary
Industries Fisheries and Rural and Regional Queensland; and the
Chair of the Torres Strait Regional Authority. The Joint Authority
is responsible for commercial and traditional fishing activities
(involving traditional inhabitants of the Torres Strait) in the
Torres Strait and designated adjacent waters.[13]
AFMA has been developing a package of electronic services to
improve the cost effectiveness of Commonwealth fisheries. The
cornerstone of the package is the eLicensing system, which enables
a range of high volume, routine licensing decisions under the Act
to be made electronically .[14] According to the Minister for Agriculture,
Fisheries and Forestry, Tony Burke MP, AFMA estimates that 80 per
cent of transactions will be done by eLicensing by 2011. In 2008 09
there were 4562 transactions.[15]
GOFish is the self-service portal developed by AFMA to enable
the fishing industry to log on to its website and complete a range
of licensing transactions (such as transferring fishing concessions
and viewing quota holdings).[16]
The Bill authorises AFMA to approve the use of a computer
program to make high volume, routine decisions that do not require
the exercise of judgment by an AFMA officer .[17] This means, for example, that
when the holder of a fishing permit applies via GOFish to have the
permit renewed, the decision will be made by a computer program
under AFMA s control without any involvement or intervention by a
person employed or authorised by AFMA, other than in the prior
construction of the computer program .[18]
The Fisheries Legislation Amendment Bill 2009 will be considered
at the next meeting of the Senate Selection of Bills Committee in
2010.[19]
The Explanatory Memorandum states that the Bill will have an
insignificant financial impact on the Australian Government or
affected parties.[20]
Items 1-9 insert definitions of various terms
into subsection 4(1) of the Act.
Item 11 repeals existing subsection
32(1BA) and inserts a new provision in its place.
Proposed subsection 32(1BA) provides that for a
boat to be nominated for the grant of a fishing permit under
subsections 32(1A) or 32(1B), the requirements set out in proposed
paragraphs 32(1BA) (a), (b) and (c) have to be satisfied.
Item 12 repeals subsections 32(9A) and
(10) which become redundant as a result of the
introduction of the electronic licensing system. Currently,
subsection 32(9A) requires a person to return the original permit
after it ceases to be in force, while subsection 32(10) enables
AFMA to transfer a permit from the permit holder to another
person.
Item 13 inserts proposed section
32A to regulate the transfer of fishing permits and in
effect replace existing subsection 32(10). The holder of a permit
must apply to AFMA to register the transfer of a permit. The
transfer takes effect once AFMA has registered the transfer
(subsection 32A(3)). Subsection
32A(4) provides that AFMA must register the
transfer unless one of the circumstances set out in paragraphs (a)
to (d) apply:
- the fishing permit is suspended under section 38
- the permit holder is being investigated for a fisheries offence
or has been convicted of a fisheries offence
- there is an unpaid levy on the fishing permit, or
- other circumstances exist that are prescribed in the
regulations.
Proposed subsection 32A(5) provides that
proposed subsection 32A(4) applies, despite the fact that a
requirement in a plan of management relating to the transfer has
not been satisfied. In effect the operation of proposed
section 32A means that it will override all requirements
in management plans relating to the approval of transfers of
fishing permits which, as the Explanatory Memorandum states, will
no longer apply.[21] Proposed section 32A does not apply to
a fishing permit that is stated to be non-transferable
(proposed subsection 32A(6)).
Item 18 inserts proposed subsection
46(4D) which provides similar conditions in relation to a
lease or a transfer of ownership of a fishing right as apply to the
transfer of a fishing permit in proposed subsection 32A(4). The
Explanatory Memorandum notes that AFMA will develop a policy to
guide the exercise of the discretion to refuse to register a lease
or transfer where one of the prescribed circumstances exist
.[22]
Proposed subsection 46(4E) provides that
subsection 46(4D) still applies (that is, AFMA must register a
lease or transfer of ownership) despite the fact that any
requirement relating to a lease or transfer in a plan of management
has not been satisfied.
Item 20 inserts proposed section
89A which relates to the use of defensive equipment by
AFMA fisheries officers. The second reading speech notes that:
Work undertaken by AFMA compliance officers is potentially
dangerous. There are a number of documented assaults against
fisheries officers engaged in such work, and it is essential that
these officers are adequately equipped and trained to ensure their
own safety in appropriate circumstances.[23]
Defensive equipment is defined in proposed subsection
89A(2) as a bulletproof vest, an extendible baton,
handcuffs or other equipment as prescribed in the regulations. The
CEO of AFMA may authorise a fisheries officer to be issued with
defensive equipment and to carry, use and store it if the CEO
considers it reasonably necessary for the officer to use the
equipment in order to perform his functions and exercise his powers
under the Fisheries Management Act 1991. Authorised use is
dependent upon the officer having received adequate training in the
effective, lawful and safe carriage, use and storage of such
equipment (proposed subsection
89A(3)). The authorisation may be subject to conditions
(proposed subsection 89A(4)).
Proposed subsection 89A(5) provides that the
officer may use the defensive equipment if the officer considers it
reasonably necessary to do so in order to perform functions or
exercise powers under the Act (or its associated regulations)
subject to any conditions placed on the authorisation and section
87J of the Act (which relates to the use of force in relation to a
boat). Proposed subsection 89A(6) creates an
offence that is committed by a person who has been issued with
defensive equipment and who is no longer an officer but who has
failed as soon as possible to return the defensive equipment to the
CEO. The penalty is two penalty units (a maximum penalty of $220),
however if the person has a reasonable excuse subsection (6) does
not apply (proposed subsection
89A(7)). This is an offence of strict liability
(proposed subsection 89A(8)).[24]
Item 21 inserts Division 1 Electronic
decision-making into Part 9 of the Act. Proposed
subsection 163B(1) provides that AFMA may approve a
computer program (under AFMA s control) to be used to make certain
decisions under the following sections of the Act:
- section 32 (granting of fishing permits)
- section 32A (transferring of fishing permits)
- section 46 (the creation, assigning, transferring, transmitting
or extinguishing of interests in a fishing right)
- section 91 (grant of fish receiver permits)
- a plan of management, or
- any other provision of the Act prescribed in the
regulations.
Proposed subsection 163B(2)
provides that an electronic decision made by the approved computer
program is taken to be a decision made by AFMA. AFMA s approval of
the computer program must be in writing (proposed
subsection 163B(3)). An approval under this
section is not a legislative instrument (proposed
subsection 163B(4)) which means that it is not subject to
parliamentary disallowance under the Legislative Instruments
Act 2003.
Section 163C(1) applies if AFMA
is satisfied that an electronic decision was made when the computer
program was not functioning properly, for example because of a
computer virus or a typographical error. The program is not
functioning correctly if the decision made by the computer program
is not the same as the decision that would have been made by an
AFMA employee (proposed subsection 163C(2)). The
Explanatory Memorandum emphasises that the decisions to be made
electronically are purely factual and have no discretionary
elements and concludes:
Therefore, a computer program, functioning correctly, will in
all cases make the same decision that an employee of AFMA would
make on the same facts.[25]
Proposed subsection 163C(3) provides that AFMA
may revoke the electronic decision and replace it with the correct
AFMA decision. Proposed subsection 163C(4)
provides that AFMA may revoke the electronic decision and replace
it with the decision that would have been made by an AFMA employee,
either on its own initiative or on the written application of the
person/entity who sought the electronic decision initially. If AFMA
revokes the electronic decision after notifying the applicant about
the electronic decision , it must then notify the applicant that
the decision has been revoked and the reasons for doing so. It must
also inform the applicant of the new decision (proposed
subsection 163C(5)).
Proposed section 163D provides that a computer
function notice is prima facie evidence of the matters stated in
the notice (proposed subsection 163D(1)). A
computer function notice is defined as a document signed or
purportedly signed by the CEO stating whether or not a specified
computer program was functioning correctly in relation to a
specified electronic decision and at a specified time or period
(proposed subsection 163D(2)).
Items 1-3 of Schedule 2 to the
Bill insert definitions of various terms into subsection 3(1) of
the Torres Strait Fisheries Act 1984.
Item 4 repeals existing section
46AA and substitutes proposed section
46AA which concerns offences in relation to a fish
receiver licence .[26] Proposed section 46AA
applies to fish taken from the Protected Zone or an area of waters
which is the subject of a declaration under section 15(1).[27] Proposed
subsection 46AA(2) creates an offence that is committed if
:
- a person receives fish directly from another person
- the fish were taken by the other person in circumstances that
requires him or her to hold a commercial fishing license or Treaty
endorsement[28],
and
- the person intends to process the fish (other than for personal
consumption or use) or sell the fish but does not have a licence to
receive fish under the Act. The penalty is 50 penalty units (a
maximum penalty of $5500).
Proposed subsection 46AA(3)
provides that a person receives fish directly from another person
if the person received the fish from the other person or from
someone engaged by that person to transport the fish.
Proposed subsection 46AA(4) creates an offence
that is committed by a person who holds a fish receiver licence and
receives fish from someone who is not a commercial fisher, and the
person intends to process the fish (other than for personal
consumption or use) or sell the fish. The penalty is 50 penalty
units (a maximum penalty of $5500).
Concluding comments
This Bill enables efficiencies to be made in the administration
of Australian fishing, particularly through the approval of
computer programs that will allow faster processing of routine
licensing decisions. The Bill also clarifies the types of defensive
equipment that can be employed by fisheries officers when
investigating illegal fishing activities so that they are better
able to protect and defend themselves if need be. The Bill provides
for additional equipment to be prescribed in the regulations at a
future date. The Bill also seeks to improve the licensing system by
clarifying the persons required to hold fish receiver
licences.
[9]. Department of
Agriculture, Fisheries and Forestry, Fact Sheet: Management
processes affecting Commonwealth Fisheries , website,
viewed 23 December 2009,
http://www.daff.gov.au/__data/assets/pdf_file/0005/5792/res_share_factsheet.pdf
Moira Coombs
28 January 2010
Bills Digest Service
Parliamentary Library
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277 6277
2784.
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