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.
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
© Commonwealth of Australia 2006
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Published by the Parliamentary Library, 2006.
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