BILLS DIGEST NO. 90, 2016–17              7 April 2017

Fisheries Legislation Amendment (Representation) Bill 2017

Bill McCormick
Science, Technology, Environment and Resources Section 

Date introduced:  8 February 2017

House:  Senate

Portfolio:  Agriculture and Water Resources

Commencement: The day after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at April 2017.

Purpose of the Bill

The purpose of the Fisheries Legislation Amendment (Representation) Bill 2017 (the Bill) is to amend the Fisheries Administration Act 1991 and the Fisheries Management Act 1991 to provide for explicit recognition of recreational and Indigenous fishers in this legislation and to require the Australian Fisheries Management Authority to take the interests of both these fishers and commercial fishers into account in all its decisions.

Background

Under the Fisheries Administration Act and the Fisheries Management Act, Commonwealth fisheries must be managed by the Australian Fisheries Management Authority (AFMA) in an efficient and cost-effective fashion with fishing to be carried out in a manner consistent with the principles of ecologically sustainable development.[1]

While the second reading speech noted that in 2015 no fish stock managed solely by the Commonwealth was subject to overfishing, in that year, of the 93 fish stocks managed solely or jointly by the Australian Government, 79 fish stocks were classified as not subject to overfishing, three were classified as subject to overfishing and 11 classified as uncertain with regard to fishing mortality.[2]

The value of Australia’s wild-caught fisheries was $1.6 billion in 2014-15, of which the catch of Commonwealth fisheries was valued at $350 million.[3] This figure does not include southern blue-fin tuna that are caught in the Commonwealth Southern Bluefin Tuna Fishery and towed to mariculture pens in South Australia where they are grown out for three to five months prior to sale ($122 million in 2013–14).[4]

The responsibilities of AFMA are shared between the AFMA Commission and the Chief Executive Officer (CEO). The Commission is responsible for domestic fisheries management, while the CEO is responsible for foreign compliance, for assisting the Commission and giving effect to its decisions, and for managing the agency that supports these functions.[5] There are presently seven of a possible eight Commissioners (including the Chairperson) on the Commission.[6] Commissioners must have expertise in one or more of: fisheries management, fishing industry operations, science, natural resource management, economics, business or financial management, law, and public sector administration or governance.[7] The present seven AFMA Commissioners have expertise in all these areas. In order to maintain the independence of the Commission, Commissioners are not permitted to hold an executive position in a fishing industry association and cannot hold a Commonwealth fishing concession, licence or permit or have a controlling interest or executive role in any entity holding a Commonwealth fishing concession, licence or permit.[8]

Stakeholder engagement for individual Commonwealth fisheries is normally carried out through participation on one of the several management advisory committees that are established by AFMA.[9] Through these committees, stakeholders can discuss any problems relating to this fishery, review scientific information and develop possible management measures.[10] The committees may include representatives from AFMA, the commercial fishing industry, scientific agencies, environmental non-government organisations, the recreational/charter fishing sector and state governments.[11] Committee members are appointed on an expertise basis for up to three years, following a public expression of interest process and recommendation to the AFMA Commission by an assessment panel.[12]

The Productivity Commission recently completed an inquiry into Marine Fisheries and Aquaculture, submitting its final report to the Minister on 19 December 2016. The report has yet to be tabled in Parliament. One of the inquiry’s terms of reference relates to balancing the interests of all stakeholders in fisheries, including the general community:

5. The extent to which fisheries management regimes align with and protect the interests of the wider community (in particular, the balance between commercial, recreational, indigenous fishing and conservation interests, and consumers' interests).[13]

Key points made in the draft report included:

•       the impacts of recreational and indigenous customary fishing activity are largely uncounted in Commonwealth, state and territory fishery management regimes

•       there needs to be greater recognition of recreational fishing in fisheries management

•       there is relatively poor input from Indigenous people in fishery management and Indigenous customary fishing should be incorporated into fisheries management systems.[14]

Committee consideration

Selection of Bills Committee

On 15 February 2017, the Senate Selection of Bills Committee determined that the Bill would not be referred to a committee for inquiry and report.[15]

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Scrutiny of Bills Committee had no comment on the Bill.[16]

Policy position of non-government parties/independents

While making no specific comments about increasing representation of recreational and indigenous fishers on the AFMA Commission, Joel Fitzgibbon, ALP Shadow Minister for Agriculture, Fisheries and Forestry, has said that a future Labor government would establish a Recreational Fishers Council chaired by the Minister for Agriculture and Fisheries to give recreational fishers ‘a seat at the decision making table’.[17]

Position of major interest groups

A number of bodies representing recreational and Indigenous fishers made comments about increased representation in their submissions to the Productivity Commission Inquiry into Marine Fisheries and Aquaculture.

For example, the Victorian Recreational Fishing Peak Body noted that the Commonwealth fisheries legislation did not adequately recognise recreational fishing values and the potentially adverse impacts of AFMA decisions on recreational fishing.[18] The Tasmanian Association for Recreational Fishing Inc. recommended that the objectives of the Fisheries Administration Act and the Fisheries Management Act should be amended to require AFMA to ‘have regard to the interests of recreational and Indigenous fishers (and other users of the marine environment)’.[19]

The Northern Land Council recommended that there should be:

… an appropriate engagement framework to facilitate Aboriginal participation in fisheries management as a priority. The framework must not only enable a dialogue on governance, participation and practical application of fisheries management but also invest in Indigenous leadership and community participation. The framework must be resourced to support expert advice and research development to inform policy decisions.[20]

Financial implications

The Explanatory Memorandum states that the Bill will have no financial impact for the Commonwealth.[21]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[22]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights found that the Bill did not raise human rights concerns.[23]

Key issues and provisions

AFMA’s objectives

Section 6 of the Fisheries Administration Act currently sets out a number of objectives that AFMA must pursue in the performance of its functions. These include, for example, ensuring that fishing activities are conducted in a manner consistent with the principles of ecologically sustainable development.[24]

Item 2 of Schedule 1 of the Bill proposes to add an additional objective to the Fisheries Administration Act in a new subsection 6(2), which would require AFMA to take into account the interests of commercial, recreational and Indigenous fishers while carrying out its functions.

Subsection 3(1) of the Fisheries Management Act currently sets out five objectives that must be pursued by the Minister in the administration of this Act and by AFMA in the performance of its functions.[25] These objectives are similar to those of the Fisheries Administration Act. Subsection 3(2) of the Fisheries Management Act sets out additional objectives that the Minister, AFMA and Joint Authorities ‘are to have regard to’:

(a)              ensuring, through proper conservation and management measures, that the living resources of the AFZ are not endangered by over-exploitation; and

(b)               achieving the optimum utilisation of the living resources of the AFZ; and

(c)               ensuring that conservation and management measures in the AFZ and the high seas implement Australia’s obligations under international agreements that deal with fish stocks; and

(d)               to the extent that Australia has obligations:

                            (i)               under international law; or

                            (ii)               under the Compliance Agreement or any other international agreement;

in relation to fishing activities by Australian-flagged boats on the high seas that are additional to the obligations referred to in paragraph (c)—ensuring that Australia implements those first-mentioned obligations;

but must ensure, as far as practicable, that measures adopted in pursuit of those objectives must not be inconsistent with the preservation, conservation and protection of all species of whales.[26]

Item 12 amends these objectives in subsection 3(2) of the Fisheries Management Act to add an additional objective requiring the Minister, AFMA and any Joint Authorities to ensure that the interests of commercial, recreational and Indigenous fishers are taken into account.

AFMA commissioners

Subsection 12(3) of the Fisheries Administration Act currently sets out the requirements for eligibility for appointment to the AFMA Commission. The individual must have a high level of expertise in one or more of: fisheries management, fishing industry operations, science, natural resource management, economics, business or financial management, law, and public sector administration or governance.[27]

Item 4 proposes to amend this subsection to expand the eligibility of AFMA commissioners to include having high levels of expertise in matters relating to recreational or Indigenous fishing. Since there is no requirement for individuals with expertise in each of the matters to be appointed to the Commission, it is possible that individuals with expertise in recreational and Indigenous fishing may not necessarily be appointed as commissioners. It should be noted that at present there are seven Commissioners but, under the Fisheries Administration Act, it is possible to appoint one additional Commissioner.[28]

Paragraph 12(3)(b) of the Fisheries Administration Act currently prohibits an individual from being appointed a Commissioner if that person holds an executive position in a fishing industry association.

Item 6 amends this paragraph to add a further prohibition to ensure that no person who holds an executive position of a fishing representative organisation can be appointed as an AFMA commissioner. This aims to ensure that the AFMA commissioners are independent.

Advisory committees

Items 8 and 9 relate to management advisory committees which facilitate stakeholder involvement for many of the Commonwealth managed fisheries.

Section 60 of the Fisheries Administration Act currently provides that management advisory committees are composed of a chairperson, the AFMA staff member responsible for the management of the fishery for which the advisory committee has been established and up to seven other members.[29] Item 8 proposes to amend this section to expand the potential membership of the committees from seven to ten (in addition to the Chairperson and AFMA staff member).

Subsection 62(3) currently requires that AFMA must try to ensure that an advisory committee includes members who are engaged, or have experience, in the industry in the fishery for which the committee was established.[30] There is no requirement for members with experience and interests outside the specific fishing industry to be appointed.

Item 9 replaces the existing subsection 62(3) to specify that AFMA should try to ensure that members of the committee include not only those individuals who are engaged, or have experience, in the relevant fishery, but also members engaged or with experience in recreational fishing in that fishery. Some of the management advisory committees presently include recreational fishing stakeholders while others do not have an identified recreational stakeholder member.[31]

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[1].              Fisheries Administration Act 1991, section 6; Fisheries Management Act 1991, section 3; Australian Fisheries Management Authority (AFMA), ‘Fisheries’, AFMA website.

[2].              J McGrath, ‘Second reading speech: Fisheries Legislation Amendment (Representation) Bill 2017’, Senate, Debates, 8 February 2017, p. 323; Department of Agriculture and Water Resources (DAWR), Fishery status reports 2016, research by the Australian Bureau of Agricultural and Resource Economics and Sciences (ABARES), Canberra, December 2016, p. 3.

[3].              DAWR, Australian fisheries and aquaculture statistics 2015, research by ABARES, Canberra, December 2016, p. 13.

[4].              EconSearch, The economic impact of aquaculture on the South Australian state and regional economies, 2013/14, report to PIRSA Fisheries and Aquaculture, Adelaide, 5 June 2015, p. viii.

[5].              AFMA, ‘The AFMA commission’, AFMA website.

[6].              Fisheries Administration Act 1991, section 11.

[7].              Ibid., section 12.

[8].              Ibid.

[9].              Ibid., section 56.

[10].              AFMA, ‘Southern Bluefin Tuna Fishery’, AFMA website.

[11].              Ibid.

[12].              AFMA, ‘Committees’, AFMA website.

[13].              Productivity Commission (PC), ‘Completed inquiries: marine fisheries and aquaculture: terms of reference’, PC website, 23 December 2015.

[14].              PC, Marine fisheries and aquaculture: overview and draft recommendations, Draft report, PC, Canberra, August 2016, p. 2.

[15].              Senate Selection of Bills Committee, Report, 2, 2017, The Senate, 16 February 2017, p. 3.

[16].              Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 2, 2017, The Senate, 15 February 2017, p. 17.

[17].              J Fitzgibbon (Shadow Minister for Agriculture, Fisheries and Forestry), ‘Recreational fishing announcement transcript’, media release, 18 June 2016.

[18].              Victorian Recreational Fishing Peak Body, Submission to Productivity Commission, Inquiry into Marine Fisheries and Aquaculture, submission no. 25, 29 March 2016, pp. 1, 3.

[19].              Tasmanian Association for Recreational Fishing Inc., Submission to Productivity Commission, Inquiry into marine fisheries and aquaculture, submission no. 42, 18 April 2016, p. 8.

[20].              Northern Land Council, Submission to Productivity Commission, Inquiry into Marine Fisheries and Aquaculture, submission no. DR101, 21 October 2016, p. 8.

[21].              Explanatory Memorandum, Fisheries Legislation Amendment (Representation) Bill 2017, p. 3.

[22].              The Statement of Compatibility with Human Rights can be found at page 4 of the Explanatory Memorandum to the Bill.

[23].              Parliamentary Joint Committee on Human Rights, Report, 1, 2017, The Senate, 16 February 2017, p. 32.

[24].              Fisheries Administration Act, paragraph 6(b).

[25].              Fisheries Management Act, subsection 3(1).

[26].              Ibid., subsection 3(2).

[27].              Fisheries Administration Act, paragraph 12(3)(a).

[28].              Ibid., section 11.

[29].              Ibid., section 60.

[30].              Ibid., subsection 62(3).

[31].              AFMA, ‘Tropical Tuna Management Advisory Committee’, AFMA website; AFMA, ‘Northern Prawn Fishery Management Advisory Committee’, AFMA website.