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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