Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
1997
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
FISHERIES LEGISLATION
AMENDMENT BILL 1997
EXPLANATORY
MEMORANDUM
(Circulated by the authority
of the Minister for Resources and Energy,
Senator the Hon Warwick
Parer)
THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY
THE SENATE TO THE BILL AS INTRODUCED
88757 Cat. No. 96
9147 2 ISBN 0644 504420
FISHERIES LEGISLATION AMENDMENT BILL
1997
GENERAL OUTLINE
1. The Fisheries Administration Act
1991 and the Fisheries Management Act
1991 came into effect in February 1992
and the proposed amendments seek to correct
minor anomalies in them that
have been identified over the last 4 years, streamline
their administration
and generally improve the efficiency of fisheries management. As
a major
component of the amendments, this Bill seeks to implement Government
policy
by enhancing the security of long-term access rights to fisheries. A minor
consequential amendment is also made to the Remuneration Tribunal Act
1973.
2. The Torres Strait Fisheries Act 1984, being of earlier origin,
lacks some of the
features included in the Fisheries Administration and
Management Acts. It is
proposed to amend the Torres Strait Fisheries Act to
give the Torres Strait Protected
Zone Joint Authority one of the powers
considered central to modern fisheries
management, namely the power to make
management plans.
FINANCIAL IMPACT STATEMENT
3. The amendments in
the Bill have low financial significance for the
Commonwealth Budget. With a
view to improving compliance and enforcement, the
Bill contains provisions
for raising the level of penalties for breaches of the Fisheries
Management
Act. While these amendments are not intended as a revenue-raising
measure,
they should ensure that any financial impact flowing from the Bill will be
positive.
NOTES ON INDIVIDUAL CLAUSES
Clause 1: Short
title
4. This clause provides for the Act to be called the Fisheries
Legislation
Amendment Act 1997.
Clause 2: Commencement
5. This
clause provides for the Act to commence on the day on which it receives
Royal Assent.
Clause 3: Schedules
6. This clause provides for
the amendments to each of the 4 Acts being amended
to appear in a separate
Schedule.
Schedule 1 - Amendment of the Fisheries Administration Act
1991
Clause 1: Subsection 4(1)
7. This clause adds to the
definitions already set out in subsection 4(1) of the
Act. The new
definition covers the term Òprecautionary
principleÓ.
Clause 2: Paragraph 6(b)
8. This clause
substitutes a new paragraph which adds a further objective under
the Act
being the requirement to act in a manner consistent with the
Òprecautionary
principleÓ and to have particular regard to the
impact of fishing activities on the long
term sustainability of the marine
environment.
Clause 3: After paragraph 7(d)
9. This clause inserts
a new paragraph after paragraph (d) of section 7 of the Act,
specifying that
the Australian Fisheries Management Authority (AFMA) is not only
to devise
but also to manage and carry out adjustment, restructuring, exploratory and
feasibility fishing programs.
Clause 4: Paragraph
7(g)
10. This clause substitutes a new paragraph, which extends
AFMAÕs consultation
and information exchange function to encompass
State, Territory and overseas bodies
having functions similar to
AFMAÕs functions.
Clause 5: Subsection
12(2)
11. This clause changes the maximum period for which a person may
serve
consecutive terms as Chairperson or nominated director of AFMA from 3
terms to 9
years. The maximum length of a term is 3 years.
Clause 6:
After subsection 58(1)
12. This clause inserts two subsections which
specify, without limiting the
generality of AFMAÕs powers, that a
management advisory committee may establish
and abolish sub-committees as it
sees fit and determine their membership and
procedures.
Clause 7:
Subsection 67(4)
13. This clause relates to travelling allowance payable
to members of management
advisory committees and sub-committees. Currently,
there is provision only for
management advisory committee members and these
allowances need to be prescribed
by regulations under the Act. This clause
extends the provision to sub-committee
members and provides that the level
of allowances is to be determined by the
Remuneration
Tribunal.
Clause 8: At the end of subsection 67(5)
14. This clause
adds to section 67 a mention of members of a sub-committee
established as
set out above, meaning that such a membership is not a public office
within
the meaning of the Remuneration Tribunal Act 1973.
Clauses 9 and 10:
Subsection 80(1A) (paragraph (a) of the definition of Deductible
component)
15. These clauses clarify the definition of the ÒDeductible
componentÓ of a levy
amount. This component is dedicated to funding
the Fisheries Research and
Development Corporation.
Clause 11: At the
end of section 91
16. Section 91 of the Act gives the Minister power to
give directions to AFMA in
exceptional circumstances. This clause adds a
subsection by which, if a fishery is
managed under Commonwealth law under a
Joint Authority arrangement, then the
Joint Authority Ministers, ie the
Commonwealth and State and/or Northern Territory
Ministers, will jointly
have the power to give such directions instead of the
Commonwealth Minister
alone.
Clause 12: Transitional
17. This clause refers to
clause 4 and makes it clear that the establishment,
operation and funding of
all sub-committees that a management advisory committee
had purported to
establish are to be deemed valid under the Act. Any such sub-
committee that
a management advisory committee had not purported to abolish prior
to the
commencement of clause 4 remains valid.
Schedule 2 - Amendment of the
Fisheries Management Act 1991
Clause 1: Paragraph
3(1)(b)
18. This clause substitutes a new paragraph which adds a further
objective under
the Act being the requirement to act in a manner consistent
with the Òprecautionary
principleÓ and to have particular
regard to the impact of fishing activities on the long
term sustainability
of the marine environment.
Clauses 2 to 11: Subsection
4(1)
19. These clauses add to the definitions already set out in
subsection 4(1) of the
Act. The new definitions cover the terms
ÒconveyanceÓ, Òevidential materialÓ,
Òexecuting officer (in relation to a warrant)Ó,
ÒmagistrateÓ, Òprecautionary principleÓ,
ÒpremisesÓ, Òreceive (in relation to fish)Ó,
ÒtakeÓ, ÒwarrantÓ, and Òwarrant
premisesÓ.
Clause 12: Subsections 13(1), (2) and
(4)
20. This clause expresses the $50,000 penalty in respect of certain
offences
relating to driftnet fishing as 500 penalty units, each currently
equivalent to $100.
Clause 13: Subsection 13(3)
21. This clause
expresses the $250,000 penalty applicable to a body corporate
incorporated
in Australia, or mainly carrying on activities in Australia, that engages in
driftnet fishing outside the Australian fishing zone as 2,500 penalty units,
each
currently equivalent to $100.
Clause 14: Subsections 15(1) and
(2)
22. This clause raises the penalty for taking black cod or a
prescribed fish in the
Australian fishing zone, and for a person on an
Australian boat taking a prescribed
fish outside the Australian fishing
zone, from $5,000 to $12,500 and expresses it as
125 penalty units, each
currently equivalent to $100.
Clause 15: Subsection
17(1)
23. This clause substitutes a new subsection and adds two others
that require
AFMA to determine plans of management for all fisheries. If
AFMA is of the view
that a plan of management for a particular fishery is
not warranted then it may make a
determination accordingly.
Clause
16: After subsection 17(2)
24. This clause adds a new subsection that
requires the terms of a public notice
issued under subsection 17(2) of the
Act to be notified to persons and organisations
listed on the register
referred to in clause 18.
Clause 17: After subsection
17(6C)
25. This clause adds a new subsection that requires plans of
management to
provide for the incidental catch of non-target commercial and
other species to be kept
to a minimum.
Clause 18: After section
17
26. This clause adds a new section that sets out the procedures for
setting up and
maintaining a register of persons and organisations who are
to be notified of draft
plans of management.
Clause 19: Subsection
26(2)
27. Subsection 26(2) sets out the conditions under which an
applicant for a fishing
right is to be registered as an eligible person.
This clause provides that the conditions
are to be subject to the new
section 31K, the contents of which are described under
clause
14.
Clause 20: After Division 4 of Part 3
28. This clause inserts
Division 4A, consisting of new subsections 31A to 31L
which relate to
providing that long term fishery access rights are recognised so that
holders of access rights under a management plan continue to have rights
under a new
plan that replaces it.
29. Subsection 31A provides for
statutory fishing right options to be held by each
former holder of fishing
rights if a management plan for a fishery is revoked. This does
not apply
where the revocation is immediately followed by the determination of a
new
management plan that is in all substantial respects identical to the earlier one
and
gives all holders of statutory fishing rights under the old plan
equivalent rights under
the new plan.
30. In the case where a
management plan is not immediately remade after
revocation, subsection 31B
specifies in what circumstances the new plan of
management is deemed the
same or substantially the same as the former plan and, if
this applies,
gives the formula in accordance with which the number of statutory
fishing
rights to be held by a holder of options under the new plan is to be
calculated.
31. Subsection 31C specifies in what circumstances the new
plan of management
is deemed to have some features in common with the former
plan of management, but
not to be the same or substantially the same as that
former plan, and sets out the
manner in which fishing rights are then to be
allocated to option holders. Essentially,
the number of rights then
allocated is to be as determined fair and equitable by
AFMA, having
particular regard to the points set out in this section.
32. Subsection
31D sets out how a statutory fishing rights option is to be
exercised by a
person and states that failure to exercise an option within the period
specified by AFMA will lead to the option lapsing.
33. Subsection 31E
provides for AFMA to keep a Register of Statutory Fishing
Rights Options,
how it is to be kept and the particulars about options that are to be
recorded.
34. Subsection 31F provides for dealing in interests in
statutory fishing rights
options, the instruments that may be presented to
AFMA as evidence of dealing, the
conditions under which registration of
dealing may be refused and the documents that
AFMA is to make available for
inspection.
35. Subsection 31G sets out the conditions under which AFMA
is required to
register a claim of interests in statutory fishing rights
options, the circumstances under
which the registration is to be cancelled
and the procedure for the registration of
further dealings in the
options.
36. Subsection 31H provides that trusts are not registrable on
the Register.
37. Subsection 31J provides the holder of a statutory
fishing rights option with
the power to deal with the option as absolute
owner subject only to any rights
appearing in the Register to be vested in
another person. This subsection protects the
purchaser only if the purchaser
deals with the holder in good faith for value and
without notice of any
fraud on the part of the holder.
38. Subsection 31K sets out the
obligations of AFMA in respect of granting
statutory fishing rights under a
new plan of management. AFMA is required to give
written notice to every
person holding a statutory fishing rights option in relation to
the plan.
The notice is to ask the person to tell AFMA in writing within 30 days after
a specified date whether the person wishes to exercise the option and the
number of
statutory fishing rights in respect of which the option is to be
exercised. AFMA must
ensure that those exercising options are granted
statutory fishing rights and may
remove options from the Register only after
all options have been exercised or have
lapsed.
39. Subsection 31L
makes the Register of Statutory Fishing Rights Options
subject to the same
provisions as the Register of Statutory Fishing Rights, already in
the Act.
These provisions relate to the inspection of the Register and documents,
evidentiary provisions, orders for rectification of the Register, correction
of clerical
errors in the Register, the circumstances in which AFMA is not
liable to an action,
suit or proceeding connected with exercising powers
related to keeping the Register,
and the penalty for wilfully causing a
false entry to be made in the Register or
producing false documents. The
penalty in the latter case is 2 years imprisonment.
Clause 21: At the end
of section 38
40. This clause adds a note about the powers of a court
under section 98 to
suspend a fishing concession.
Clause 22: At the
end of section 39
41. This clause adds a note about the powers of a court
under section 98 to cancel
a fishing concession.
Clause 23: After
subsection 46(3)
42. This clause inserts a new subsection (3A) which
refers to documents that are
required by AFMA for the registration of
fishing rights and provides the option of a
party to a dealing lodging with
AFMA a summary of the instrument evidencing the
dealing.
Clause 24:
Subsection 46(4)
43. Subsection 46(4) requires AFMA to register a dealing
when the documents
specified in subsection 46(3) are lodged. This clause
subjects subsection 46(4) to the
provisions set out in subsection (4C)
(inserted under clause 19) and provides that the
summary referred to in
clause 17 may be lodged in lieu of the instrument evidencing
the
dealing.
Clause 25: Subsection 46(5)
44. This clause
repeals the existing subsection and substitutes subsections (4A),
(4B),
(4C), (5) and (6). These set out in what circumstances AFMA must register a
claim to an interest in a fishing right, or cancel such a claim. The new
subsections also
set out the procedure by which AFMA is to give notice to
the person currently
registered as the holder of the fishing rights that an
application for registration of a
dealing has been received. The new
subsection (5) provides that the summary referred
to in clause 17 may be
produced by AFMA for public inspection instead of the copy
of the instrument
evidencing the dealing. The purpose of this provision is to protect
the
privacy of the parties involved in the dealing where one or more of the parties
considers that the instrument contains information that is inappropriate for
public
access. In certain circumstances, subsection (6) enables a party to
avoid lodging with
AFMA the original of the instrument evidencing the
dealing if that instrument has
been lodged with the Australian Securities
Commission. In this case, the requirements
of the Act are deemed to have
been met if 2 copies of each instrument lodged with the
Commission are
lodged with AFMA.
Clauses 26 and 27: Subsection 49(1) and subsection
49(2)
45. These clauses refer to fisheries Joint Authorities, consisting
of Commonwealth
and State or Territory Ministers responsible for fisheries.
Joint Authorities provide
one type of arrangement for achieving co-operation
between the Commonwealth, the
States and the Northern Territory in the
management of particular fisheries.
46. Under the current provisions of
the Act, AFMA has no intrinsic powers in
the management of Joint Authority
fisheries. These clauses (and several following
clauses) seek to amend the
Act to give AFMA this power and to create the same
relationship between AFMA
and Joint Authorities as AFMA has with the
Commonwealth Minister in respect
of other Commonwealth-managed fisheries. These
clauses delete mentions of
the Joint Authority in section 49 dealing with the
circumstances in which
AFMA may refuse to transfer ownership of a fishing right.
Clause 28:
Subsection 65 (1)
47. This clause amends the provision which enables a
Joint Authority to delegate
its powers to AFMA, a Commonwealth officer or
State authorities. With the new
powers being given to AFMA, the situation
where powers will need to be delegated
to AFMA or Commonwealth officers
should no longer arise. However, there is still to
be provision for
delegations to be given to State officers and authorities in respect of
those Joint Authority fisheries that are managed under State law. The clause
provides
that all powers of the Joint Authority may be so delegated except
the power to
delegate and the power to accept, vary or revoke management
plans.
Clause 29: Saving
48. This clause saves all
delegations given to officers and employees of any State
government or
authority and thus avoids the situation where they might have been
invalid
because of the repeal of the existing subsection 65(1).
Clause 30:
Subsection 65(2)
49. In accordance with the change made in clause 22,
this clause omits mention of
AFMA and the Commonwealth Department in the
wording which an instrument of
delegation may take.
Clause 31:
Section 78
50. This clause substitutes a new section for the section
setting out the functions
of a Joint Authority. The new section provides
that if the fishery is managed by a
Joint Authority under Commonwealth law,
then AFMA is to manage the fishery as it
manages any other fishery. However,
in the case of a Joint Authority fishery, AFMA
must seek approval for any
management plan for the fishery, and amendment or
revocation of the plan,
from the Joint Authority rather than from the Commonwealth
Minister
alone.
Clause 32: Sections 79 and 80
51. This clause repeals these
sections dealing with the powers of a Joint
Authority and the application of
provisions relating to offences. These are
superfluous under the amended
arrangements.
Clause 33: Section 82
52. This clause repeals the
section dealing with reconsideration of decisions by the
Joint Authority and
the right to review by the Administrative Appeals Tribunal
(AAT). Under the
amended arrangements, the provisions of this section are
superseded by
section 165, which provides for AFMAÕs decisions to be internally
reconsidered and reviewed by the AAT.
Clause 34: Paragraphs
84(1)(h) and (i)
53. This clause seeks to correct an anomaly and an error
in the conditions under
which an officer may enter and search the premises
of the holder of a fish receiver
permit. Currently, an officer may enter
such premises only with the consent of the
holder of the fish receiver
permit or under a warrant. This clause amends the Act to
enable officers to
enter premises subject to a fish receiver permit at any time without
the
requirement for either consent or a warrant, to conduct a search, make copies of
documents and secure anything providing evidence of a contravention of the
Act.
However, seizure of the item(s) in question will still require the
personÕs consent or a
warrant.
Clause 35: Paragraph
84(7)(a)
54. Subsection 84(7) lists a number of offences under the Crimes
Act 1914.
Specifically, these are being an accessory after the fact,
attempting to commit an
offence, urging or inciting the commission of an
offence and conspiracy to commit an
offence. The subsection makes these
actions offences also under the Fisheries
Management Act. In addition,
section 5 of the Crimes Act, dealing with aiding and
abetting, is listed.
However, citing this section is technically superfluous. It is not
necessary
to refer in this Act to the Crimes Act to ensure that an action of aiding and
abetting in the commission of an offence against the Fisheries Management
Act is
equivalent to committing that offence. Therefore, this clause deletes
the mention of
section 5 of the Crimes Act.
Clause 36: Sections 85
and 86
55. This clause substitutes new sections 85, 85A, 85B, 85C, 85D,
85E, 85F, 85G,
85H, 85J, 85K and 86 dealing with search warrants. These
sections set out when
search warrants can be issued, the things that are
authorised by a search warrant, the
availability of assistance and use of
force in executing a warrant, the requirement to
give copies to the occupier
of the premises, specific powers available to the officer
executing the
warrant, the use of equipment to examine or process things, the use of
electronic equipment at the premises, compensation for damage to electronic
equipment, the requirement for copies of seized documents to be provided,
the
occupierÕs right to be present during the search, the receipts to
be provided for things
seized and the provision for warrants to be obtained
by telephone or electronic means.
In all these provisions, this clause
closely follows the provisions of sections 3E to 3R
of the Crimes Act
1914.
Clause 37: After section 88(1)
56. This clause adds
to the powers of AFMA to require security for the release of
seized
property. The Act currently enables AFMA to require security equal to the
value of the property (to cover the possibility that the court orders its
forfeiture) and
any fine that may be imposed. The amendment will enable
security to also be required
to cover the costs of prosecution to cover the
possibility that an order is made by the
court for the convicted party to
pay those costs.
Clause 38: Subsection 89(4)
57. This clause
raises the penalty for an ex-officer under the Act failing to return
his or
her identity card from $100 to $200 and expresses it as two penalty units,
currently equivalent to $100 per unit.
Clause 39: After subsection
95(1)
58. Section 95 deals with offences in relation to fishing. To
enable the implementation
of certain management and by-catch arrangements,
this clause inserts a mechanism
whereby no offence is committed if actions
which would otherwise be offences under
this section are authorised under a
management plan or regulations under the Act.
Examples of such arrangements
would include providing that overcatching in one year
may be counterbalanced
by undercatching in the following year and that by-catch in
excess of a trip
limit may be surrendered.
Clause 40: Subsection 95(2)
59. This
clause expresses the $50,000 maximum fine for illegal fishing involving a
foreign boat as 500 penalty units, currently equivalent to $100 per
unit.
Clause 41: Subsection 95(4)
60. This clause raises the
maximum fine for illegal fishing involving a foreign boat
from $10,000 to
$25,000 if the offence is dealt with by a court of summary
jurisdiction and
expresses it as 250 penalty units, currently equivalent to $100 per
unit.
Clause 42: Subsection 95(5)
61. This clause raises the
maximum fine for illegal fishing not involving a foreign
boat from $10,000
to $25,000 and expresses it as 250 penalty units, currently
equivalent to
$100 per unit.
Clause 43: Section 96
62. This clause
raises the penalty for illegally removing a fish from a net, trap or
other
equipment from $5,000 to $12,500 and expresses it as 125 penalty units,
currently equivalent to $100 per unit.
Clause 44: Subsection
97(1)
63. This clause raises the penalty applicable to a person not
holding a fish receiver
permit receiving (other than for private use) fish
from a fishery to which fish receiver
permits apply from $5,000 to $12,500
and expresses it as 125 penalty units,
currently equivalent to $100 per
unit.
Clause 45: At the end of section 98
64. Where a person
holding a fishing concession has committed an offence against
the Act, this
clause adds to the penalties that are able to be imposed by a court the
power to cancel or suspend the concession.
Clause 46: Section
99
65. This clause raises the penalty for the use of a foreign boat for
recreational
fishing, or for carrying or processing fish taken in the course
of recreational fishing
from $5,000 to $12,500 and expresses it as 125
penalty units, currently equivalent to
$100 per unit.
Clause 47:
Subsection 100(2)
66. This clause expresses the $250,000 maximum fine for
illegally using a foreign
boat for commercial fishing as 2,500 penalty
units, currently equivalent to $100 per
unit.
Clause 48: Subsection
100(4)
67. This clause expresses the $25,000 maximum fine for illegally
using a foreign
boat for commercial fishing where the offence is dealt with
by a court of summary
jurisdiction as 250 penalty units, currently
equivalent to $100 per unit.
Clause 49: Subsection 101(2)
68. This
clause expresses the $250,000 maximum fine for illegally having on board
a
foreign boat nets, traps or other fishing equipment as 2,500 penalty units,
currently
equivalent to $100 per unit.
Clause 50: Subsection
101(4)
69. This clause expresses the $25,000 maximum fine for illegally
having on board a
foreign boat nets, traps or other fishing equipment where
the offence is dealt with by
a court of summary jurisdiction as 250 penalty
units, currently equivalent to $100 per
unit.
Clause 51: Subsection
102(1)
70. This clause expresses the $50,000 maximum fine for illegally
bringing a foreign
fishing boat into an Australian port as 500 penalty
units, currently equivalent to $100
per unit.
Clause 52: Subsection
102(2)
71. This clause expresses the $50,000 maximum fine applicable to
the operator of
a foreign fishing boat illegally overstaying in an
Australian port as 500 penalty units,
currently equivalent to $100 per
unit.
Clause 53: Subsection 102(5)
72. This clause raises the
maximum fine applicable to the offences set out in
clauses 45 and 46 where
the offence is dealt with by a court of summary jurisdiction
from $10,000 to
$25,000 and expresses it as 250 penalty units, currently equivalent
to $100
per unit.
Clause 54: Subsection 103(1)
73. This clause expresses
the $50,000 maximum fine applicable to the operator of
a foreign fishing
boat illegally landing catch in an Australian port as 500 penalty units,
currently equivalent to $100 per unit.
Clause 55: Subsection
103(3)
74. This clause raises the maximum fine applicable to the offence
set out in clause
48 where the offence is dealt with by a court of summary
jurisdiction from $10,000 to
$25,000 and expresses it as 250 penalty units,
currently equivalent to $100 per unit.
Clause 56: Subsection
104(2)
75. This clause expresses the $50,000 maximum fine applicable to
the operator of
a Treaty boat contravening the conditions of a Treaty
licence as 500 penalty units,
currently equivalent to $100 per
unit.
Clause 57: Subsection 104(4)
76. This clause raises
the maximum fine applicable to the offence indicated in
clause 50 where the
offence is dealt with by a court of summary jurisdiction from
$10,000 to
$25,000 and expresses it as 250 penalty units, currently equivalent to
$100
per unit.
Clause 58: Subsection 104(7)
77. This clause specifies
the penalty applicable to a person who, upon conviction
for the offence
indicated in clause 50, contravenes an order imposed by a court not to
be on
a boat for the purpose of engaging in fishing in the Australian fishing zone.
This
clause raises the maximum fine for such an offence from $2,000 to
$5,000 and
expresses it as 50 penalty units, currently equivalent to $100
per unit.
Clause 59: Subsection 106(1)
78. This clause extends the
circumstances in which a court may order the
forfeiture of a boat, net,
equipment, catch or proceeds of the sale of catch upon
conviction. In
addition to the offences in respect of which this power already exists,
this
clause adds driftnet fishing (prohibited in section 13) as an offence that can
attract
the aforementioned penalties.
Clause 60: Subsections 153(1)
and (2)
79. This clause converts the $3,000 penalty applicable to the
offence of refusing
to take an oath, make an affirmation, answer questions
or produce documents as asked
or required under summons by the Statutory
Fishing Rights Allocation Review Panel
to 30 penalty units, currently
equivalent to $100 per unit.
Clause 61: Section 156
80. This
clause expresses the $3,000 penalty for the offence of failing, without
reasonable excuse, to appear before the Statutory Fishing Rights Allocation
Review
Panel as required by summons as 30 penalty units, currently
equivalent to $100 per
unit.
Clause 62: Paragraph
164(9)(b)
81. This clause deletes a mention of section 5 of the Crimes
Act for the same
reason as it is deleted in clause 29.
Clause
63: Subsection 165(1) (definition of relevant decision )
82. This clause
relates to decisions by AFMA that are subject to reconsideration
by AFMA and
review by the Administrative Appeals Tribunal. This clause adds to
the
decisions that are so reviewable three types of decisions by AFMA that relate to
the new statutory fishing rights option provisions set out in clause 14. The
first is
AFMAÕs right under section 31B to determine whether the
fishery to which a new
plan of management applies is the same, or
substantially the same, as the fishery to
which the former plan applied. The
second is AFMAÕs right under section 31C to
determine the number of
statutory fishing rights that an option holder may receive if
the new plan
is not the same or substantially the same as the former plan. The third is
AFMAÕs right under section 31F(7) to refuse to register a dealing in
statutory fishing
rights.
Clause 64: Subsection
166(4)
83. This clause follows on from the amendments set out in clauses
20 to 26. This
clause repeals subsection 166(4) which, in the case of Joint
Authority fisheries, made
the Minister (instead of AFMA) the issuing
authority of certain classes of evidentiary
certificates. With the
abovementioned amendments, AFMA is to be the issuing
authority of these
certificates, as it is in respect of other fisheries.
Clause 65:
Subsection 166(5)
84. Subsection 166(5) currently refers to subsection
166(4), which is to be
repealed as set out above. Subsection 166(5) enables
the Minister to give a certificate
on any matter relating to decisions of a
Joint Authority or instruments executed by a
Joint Authority. While this
provision will remain, this clause deletes the incidental
reference to
subsection 166(4).
Clause 66: Paragraph 168(2)(a)
85. This clause
converts the $1,000 maximum penalty that may be prescribed in
regulations
made by the Governor-General to 10 penalty units, currently equivalent to
$100 per unit.
Schedule 3 - Amendment of the Torres Strait
Fisheries Act 1984
Clause 1: Before section 16
86. This clause
adds a new section 15A providing for the Minister to determine
management
plans for Torres Strait Protected Zone (TSPZ) fisheries. This clause
provides for the making of management plans for Torres Strait fisheries
based on units
of fishing capacity which could take the form of input or
output controls.
87. Section 15A gives the Minister power to determine
management plans and
sets out what is to be, and may be, included in a
management plan. Foremost among
provisions that may be included in a plan
are the determination of the fishing capacity
permitted for the fishery and
of the division of this determination into units of fishing
capacity.
Provision is made for the allocation of these units to persons and their
assignment to boats. Provision is made for all administrative procedures
relating to
units: their duration, variation, re-assignment, transfer,
surrender, replacement,
renewal, suspension and cancellation. Provision is
also made for recording procedures,
the reconsideration of decisions and the
payment of fees. The terms of a management
plan are stipulated to be binding
on the Minister and AFMA. The manner in which a
fishery may be identified is
defined and there is provision for disallowance of
determinations and review
of decisions by the Administrative Appeals Tribunal.
Schedule 4 -
Amendment of the Remuneration Tribunal Act 1973
Clause 1: After
subsection 7(4)
88. This clause adds a new subsection to the Remuneration
Tribunal Act to enable
the Tribunal to determine travelling allowances for
members of fisheries management
advisory committees and sub-committees as
set out in Schedule 1 clause 5. The reason
for this new subsection is that
the abovementioned members are not remunerated
beyond their eligibility for
travelling allowance. Without this amendment, it would not
be possible for
the Tribunal to determine travelling allowances for the members
concerned
without taking the additional step of determining a level of remuneration for
them.
16
17