Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2008-2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
FISHERIES LEGISLATION AMENDMENT BILL 2009
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Agriculture, Fisheries and
Forestry,
the Hon. Tony Burke, MP)
FISHERIES LEGISLATION AMENDMENT BILL 2009
GENERAL OUTLINE
The Fisheries Legislation Amendment Bill 2009 (the Bill) deals with three
key matters and will amend the Fisheries Management Act 1991 (the FM Act)
and the Torres Strait Fisheries Act 1984 (the TSF Act).
The Bill will:
1. improve the ability of the Australian Fisheries Management Authority
(AFMA) to provide an efficient and cost effective fisheries management
service through changes to the administration of fisheries licensing
and the introduction of electronic decision-making;
2. ensure that fisheries officers engaged in investigating suspected
illegal fishing can be properly equipped to safely perform that
function; and
3. provide for consolidated arrangements regarding holders of fish
receiver licences in the Torres Strait.
Electronic decision-making (eLicensing)
A core part of AFMA's business under the FM Act is the granting of fishing
concessions and the facilitation of transactions between concession
holders, including the grant of a fishing permit upon the expiry of a
previous permit, and the transfer of concessions. The Bill will enable AFMA
to arrange for such routine, high volume decisions to be made
automatically, by operation of a computer program, and will ensure that
such decisions are valid. The computer program will apply the same
considerations as would be applied by an AFMA delegate, and will make the
same decision as the delegate would make. Any applications which require
the exercise of judgement will be identified and referred for manual
processing. Further, the computer program will only make a decision in
favour of an applicant, if a ground exists on which an application may be
refused, the matter will automatically be referred for manual processing.
Associated with eLicensing, the Bill removes some restrictions on the
trading of fishing concessions. Restrictions on the transfer of concessions
are removed by re-defining AFMA's role as one of registering, rather than
approving transfers, and by limiting AFMA's discretion to refuse to
register a transfer to certain prescribed circumstances. Those
circumstances include: suspension of a fishing permit; the holder being
investigated for a fisheries offence; the holder having been convicted of a
fisheries offence; the levy on the permit not being paid; or other
circumstances to be prescribed in the regulations.
The amendments are expected to result in a reduction in AFMA's
administrative costs, and subsequently the costs passed onto industry
through fees and levies. It will also enable the market to operate more
efficiently, including through the ability of concession holders to engage
in 'real time' transactions. These measures will significantly assist AFMA
to achieve its legislative objective of implementing efficient and cost
effective fisheries management on behalf of the Commonwealth.
Defensive Equipment
AFMA fisheries officers are responsible for enforcing the FM Act through
the investigation and detection of alleged illegal activities carried out
by domestic and foreign fishers in the Australian Fishing Zone and
Commonwealth managed fisheries.
Under revised arrangements with states and the Northern Territory which
came into force on 1 July 2009, AFMA officers are undertaking front line
fishery inspections and patrol activities previously undertaken by state
and territory officers. While the ability of AFMA to issue officers
involved in such work with the necessary defensive equipment is implicit in
the FM Act, the Bill provides express authority for AFMA fisheries officers
to be issued with, and carry, prescribed defensive equipment in the course
of their duties.
Defensive equipment includes, for instance, bulletproof vests, extendible
batons and handcuffs. Any other equipment would need to be prescribed under
the regulations.
Torres Strait Fish Receiver Licence
Previous amendments to the TSF Act, (done under the Fisheries Legislation
Amendment Act 2007) were intended to provide that all individuals who
received fish directly from Torres Strait commercial fishers required a
fish receiver licence. Upon implementation it became apparent that these
provisions had created an overly cumbersome regulatory system.
The amendment will provide for it to be an offence if a person does not
hold a fish receiver licence (or another type of licence that enables the
person to receive fish) but receives fish directly and the fish were taken
by someone required to hold a specified licence. In addition the person
must intend to process the fish or sell the fish. It will also be an
offence if a person holds a fish receiver licence but they receive fish
from a person who is not a commercial fisher and the person intended to
process or sell the fish. For both offences it is permissible for a person
to not hold a fish receiver licence if they intend to process the fish for
personal consumption or use.
The requirements will support the implementation of an effective quota
monitoring system in Torres Strait fisheries by increasing reporting
requirements on catch in the fishery. The system will provide the capacity
to verify fishers' catch records against records detailing information
about product landed at a port. It is important that the Torres Strait
Protected Zone Joint Authority has systems in place to regulate and monitor
the amount of fish being caught for commercial purposes. The fish receiver
licence is one of the measures that is utilised along with other reporting
regimes that are currently in place or planned for implementation as part
of a quota monitoring system such as log books, docket books and catch
disposal records. As such the licence will be a mechanism for providing
subsidiary records to AFMA as a method of cross-referencing and confirming
other catch records.
FINANCIAL IMPACT STATEMENT
The amendments have been assessed as having an insignificant financial
impact on the Australian Government or affected parties.
FISHERIES LEGISLATION AMENDMENT BILL 2009
NOTES ON ITEMS
Section 1: Short Title
Section 1 is a formal provision specifying the short title of the Act as
the Fisheries Legislation Amendment Act 2009.
Section 2: Commencement
Section 2 provides for the commencement of the Act.
Sections 1 to 3 will commence upon Royal Assent.
Schedules 1 and 2 commence on the 28th day after this Act receives the
Royal Assent. This will allow sufficient time for AFMA to make necessary
arrangements in relation to eLicensing and defensive equipment and for
agencies in the Torres Strait to implement administrative requirements to
issue fish receiver licences.
Section 3: Schedule(s)
Section 3 provides that each Act specified in a Schedule to the Act is
amended or repealed as set out in the applicable items of the Schedule
concerned, and any other item in a Schedule to the Act has effect according
to its terms.
Schedule 1-Amendment of the Fisheries Management Act 1991
Item 1: Subsection 4(1)
This item inserts into subsection 4(1) a definition of 'being investigated
for a fisheries offence'.
Item 2: Subsection 4(1)
This item inserts into subsection 4(1) a definition of 'computer function
notice', by reference to section 163D.
Item 3: Subsection 4(1)
This item inserts into subsection 4(1) a definition of 'defensive
equipment', by reference to section 89A.
Item 4: Subsection 4(1)
This item inserts into subsection 4(1) a definition of 'electronic
decision', by reference to section 163B.
Item 5: Subsection 4(1)
This item inserts into subsection 4(1) a definition of 'fisheries
legislation'. It provides that 'fisheries legislation' means the FM Act or
regulations, or another Act or regulations that are administered by the
Minister and prescribed under the regulations. This will enable other
provisions of the FM Act, or of another Act or regulations administered by
the Minister, to be prescribed as provisions under which an electronic
decision may be made, without amending the FM Act.
Item 6: Subsection 4(1)
This item inserts into subsection 4(1) a definition of 'fisheries offence'.
Item 7: Subsection 4(1)
This item inserts into subsection 4(1) a definition of 'fishing concession
certificate' by reference to section 163E.
Item 8: Subsection 4(1)
This item inserts into subsection 4(1) a definition of 'law enforcement
agency'.
Item 9: Subsection 4(1)
This item inserts into subsection 4(1) a definition of 'lease' which
applies where the FM Act refers to the lease of a statutory fishing right.
See item 18.
Item 10: Subsection 22(7)
This item repeals subsection 22(7). With the introduction of the electronic
licensing system (eLicensing) and developments in electronic record
keeping, the requirement of subsection 22(7) that the original certificate
evidencing the fishing right be returned upon the surrender of the right is
redundant.
Item 11: Subsection 32(1BA)
This item repeals and substitutes subsection 32A(1BA). The new subsection
provides that a boat may be nominated under subsection 32A(1A) or 32A(1B)
only if each of the requirements of paragraphs (a), (b) and (c) are
satisfied. This means that a permit granted by AFMA under subsection 32(1)
will authorise the use of an Australian boat, nominated by the person to
whom the permit is granted under subsections 32(1A) or (1B), if each of the
requirements of subsection 32(1BA) are satisfied.
Item 12: Subsections 32(9A) and (10)
This item repeals subsections 32(9A) and (10).
With the introduction of the electronic licensing system (eLicensing) and
developments in electronic record keeping, the requirement of subsection
32(9A) that the original permit be retuned upon the surrender of a fishing
permit is redundant.
The repeal of subsection 32(10) is consequent upon the insertion of new
subsection 32A.
Item 13: At the end of Division 5 of Part 3
This item is about the holder of a fishing permit transferring the right to
another person and it effectively replaces subsection 32(10). Previously,
under subsection 32(10), the transfer of a fishing permit was subject to
AFMA approval. Subsection 32A provides that the holder of the fishing
permit must apply to AFMA in the approved form to register the transfer,
the transfer takes place upon registration and AFMA must register the
transfer unless one of the circumstances specified in paragraphs 32A(4)
applies. Where one of those circumstances applies, AFMA may use its
discretion to register the transfer. Those circumstances are: the fishing
right has been suspended; the holder of the fishing right is being
investigated, or has been convicted of a fisheries offence; a levy on a
fishing right has not been paid; or other circumstances prescribed under
regulations exist.
Subsection 32A(5) requires AFMA to register a transfer in accordance with
subsection 32A(4) even if a requirement of a plan of management made under
section 17 of the FM Act is not satisfied. This makes clear that subsection
32A overrides all of the requirements in plans of management concerned with
the approval of transfers of fishing permits, which will no longer apply.
Item 14: Subsection 33(7A)
This item repeals subsection 33(7A). With the introduction of the
electronic licensing system (eLicensing) and developments in electronic
record keeping, the requirement of subsection 33(7A) that the original
permit be returned upon the surrender of a scientific permit is redundant.
Item 15: Subsection 34(10A)
This item repeals subsection 34(10A). With the introduction of the
electronic licensing system (eLicensing) and developments in electronic
record keeping, the requirement of subsection 34(10A) that the original
licence be returned upon the surrender of a foreign fishing licence is
redundant.
Item 16: Subsection 40(6A)
This item repeals subsection 40(6A). With the introduction of the
electronic licensing system (eLicensing) and developments in electronic
monitoring, the requirement of subsection 40(6A) that the original licence
be returned upon the surrender of a foreign master fishing licence is
redundant.
Item 17: Subsection 46(4)
The insertion of subsection 46(4D) replaces section 49.
Subsection 46(4) provides for registration of dealings in statutory fishing
rights by AFMA. This item omits in subsection 46(4) the words "subsection
46(4C)" and substitutes the words "subsections (4C) and (4D)". This means
that AFMA's obligation under subsection 46(4) to register a dealing will be
subject to both subsection 46(C) and subsection 46(D). Subsection 46(4D) is
consequential upon the repeal of section 49. Refer to item 19.
Item 18: After subsection 46(4C)
The transfer or lease of a statutory fishing right is a dealing in the
fishing right to which section 46 applies. As such, the transfer or lease
takes effect upon registration under section 46.
Subsection 46(4D) requires AFMA to register a lease, or transfer, of a
statutory fishing right unless a circumstance specified in paragraphs
46(4D)(a) to (d) applies. It effectively replaces section 49, under which
the transfer of a statutory fishing right was subject to AFMA approval. The
circumstances in which AFMA may refuse to register a lease or transfer of a
fishing right as the same as those in section 32A regarding the
registration of a transfer of a fishing permit.
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 exists.
Subsection 46(4E) requires AFMA to register a transfer in accordance with
subsection 46(4D) even if a requirement of a plan of management made under
section 17 of the FM Act is not satisfied. This makes it clear that
subsection 46(4D) overrides all of the requirements in plans of management
concerned with the approval of transfers of statutory fishing rights, which
will no longer apply.
Subsection 46(4D) refers to the 'lease' of fishing rights as the term has
become accepted industry usage to describe the circumstances in which the
original holder of a statutory fishing right assigns that right to another
person for a temporary period. Therefore 'lease' of a statutory fishing
right, is defined in subsection 4(1) as a temporary assignment of the
right. See item 9.
Item 19: Section 49
This item repeals section 49, and therefore removes AFMA's function of
approving the transfer of statutory fishing rights. This supports the
electronic decision making framework and is consequential upon the
amendments made by subsections 46(4D) and (4E). See item 18.
Item 20: After section 89
This item inserts a new section 89A about defensive equipment.
While it was implicit in the FM Act that AFMA has the power to issue such
equipment, this provision now expressly provides that the Chief Executive
Officer (CEO) of AFMA may authorise an officer (being an officer appointed
under section 83 of the FM Act) to be issued with, carry, use and store the
types of defensive equipment specified in paragraphs 89A(2)(a), (b) or (c),
or prescribed by regulations made for the purposes of paragraph 89A(2)(d).
It is necessary to provide for additional equipment to be prescribed by
regulation, in view of the possibly that circumstances might change, in
particular there could be a change in the assessment of the risk faced by
officers, which requires the CEO to authorise the use of additional
equipment in a timely manner.
The CEO may give such authorisation only if satisfied as to the matters
specified in subsection 89A(3).
The authorisation is subject to conditions (section 89A(4)).
Subsection 84A(5) defines the rules of engagement in relation to the use of
defensive equipment such that the use is subject to conditions in the CEO's
authorisation and the requirements in relation to reasonableness under the
FM Act section 87J.
Subsection 89A(6) provides that it is an offence if a person has been
issued with defensive equipment, the person stops being an officer and the
person does not, as soon as practicable, return the defensive equipment to
the CEO. The offence is worth two penalty units.
Subsection 89A(8) provides that an offence against subsection 89A(6) is an
offence of strict liability. This is consistent with other offences of this
nature, and complies with the recommendations of the Senate Standing
Committee for the Scrutiny of Bills, Sixth Report of 2002, Application of
Absolute and Strict Liability Offences in Commonwealth Legislation. It is
also consistent with the guidelines approved by the then Minister for Home
Affairs in December 2007 titled, A Guide to Framing Commonwealth Offences,
Civil Penalties and Enforcement Powers. The offence in subsection 89A(6)
carries a small penalty of 2 penalty units, its purpose being to ensure
that defensive equipment that has been issued to an officer is returned as
soon as practicable if an officer ceases to be an officer. If strict
liability did not apply, it could be difficult for the prosecution to prove
the fault element (knowledge) of the offence, and it is appropriate instead
that an officer charged with an offence under subsection 89A(6) has
available the defence of reasonable mistake of fact (section 89A(7)).
Item 21: Before section 163
This item inserts Division 1, comprising of sections 163A to 163E, into
Part 9 of the FM Act, regarding electronic decision making. The existing
provisions of Part 9 (sections 163 to 168) now form Division 2 of Part 9 of
the FM Act.
Section 163A explains that Division 1 is about AFMA using a computer
program to make certain decisions.
Subsection 163B(1) provides that AFMA may approve that a computer program,
which is under AFMA's control, be used to make a decision under sections
32, 32A, 46 or 91 of the FM Act, a plan of management determined under
section 17 of the FM Act, or another provision of the fisheries legislation
that is prescribed under the regulations (see item 5 for the definition of
'fisheries legislation'). This means that where an approval is in force, a
computer program can make decisions under those provisions, or a provision
of a plan of management, without the involvement of the Commission, the
CEO, an AFMA employee, or any other person in the making of the decisions,
other than in the prior construction of the computer program.
Subsection 163B(2) provides that while an approval is in place, a decision
made by the computer program (an 'electronic decision') is taken to be (a)
a decision, and (b) a decision made by AFMA.
Subsection 163B(3) provides that an approval under subsection 163B(1) must
be in writing.
Subsection 163B(4) provides that an approval made under section 163B is not
a legislative instrument within the meaning of section 5 of the Legislative
Instruments Act 2003. This provision is merely declaratory of the law, and
is included to assist readers of this part of the FM Act.
Subsections 163C(1) provides that AFMA may revoke an electronic decision
and replace it with a new decision if at any time the decision was made
when the computer program was not functioning correctly.
Subsection 163C(2) provides that a computer program is not functioning
correctly if the electronic decision that was made by the computer program
is not the same as the decision that AFMA would have made if an employee of
AFMA had made the decision.
Only certain types of decisions under the provisions specified in
subsection 163B(1) will be made electronically. Those decisions are ones
where all considerations relevant to the making of the decisions can be
identified in advance (and built into the computer program), and there is
no room for the exercise of discretion. 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.
For example, in making a decision as to whether to grant a fishing permit
under section 32 of the FM Act upon the expiry of a previous permit, the
only relevant considerations might be that the applicant held the same type
of fishing permit in the previous licensing period, had paid any levies
that were due in respect of the permit, and is not being investigated for
an offence in connection with the permit. The computer program will
identify whether each of those considerations are satisfied, and if they
are, will issue the permit. If any one of those conditions is not
satisfied, the computer program will not make the decision. Instead, the
decision will be referred to and made by a delegate, who will exercise
their discretion as to whether to grant the permit.
In contrast, a decision on an application for the grant of a permit under
section 32 where the applicant has not previously held a permit of that
type will in all cases be made manually, as the decision will necessarily
require the exercise of discretion.
Subsection 163C(2) recognises the possibility of an error occurring in the
computer program, or of a malfunction of the program, and that the computer
program could make an incorrect decision (i.e. not the decision that an
AFMA employee would have made). Such an error could occur, for example, if
the program is developed on the basis of incomplete or incorrect data, or
if there is an error in the computer processing algorithms, or if a
computer virus interferes with the operation of the computer program.
Subsection 163C(3) gives AFMA an express power to revoke an electronic
decision if it is satisfied that the computer program was not functioning
correctly when the electronic decision was made, and to replace that
decision with the decision that would have been made if an employee of AFMA
had made the decision.
Where other circumstances exist in which an electronic decision could be
replaced, being circumstances which could apply equally to a decision made
by an AFMA employee, AFMA would be able to revoke and replace the decision
in the same way that it could take such action if the decision had been
made by an AFMA employee. For example, if the decision was obtained by
fraud or misrepresentation, or was made on the basis of incorrect
information. It is therefore unnecessary to include in the Bill a power to
revoke and replace an electronic decision in these other circumstances.
Subsection 163C(5) requires AFMA, as soon as is practicable after an
electronic decision is revoked, to give the person who had sought the
electronic decision a written notice that states the matters specified in
paragraphs 163C(5)(a), (b) and (c).
Section 163D(1) provides for AFMA to issue a computer function notice in
any proceedings. The notice is prima facie evidence of the matters stated
in the notice.
Subsection 163D(2) provides that a 'computer function notice' is a document
that is, or is purported to be signed, by the CEO (which includes a
delegate of the CEO) and states whether or not a specified computer program
was functioning correctly in relation to a specified electronic decision
(or decisions), and at a specified time or during a specified period.
It is appropriate for the CEO of AFMA to be able to issue a computer
function notice in these circumstances because a computer program would
only fail to make the correct decision -being the decision an AFMA employee
would have made-for technical reasons. That is, the data on which the
computer program is based is incorrect or incomplete; 'input' data is
correct but there is an error in the computer processing algorithms; or
there is a computer malfunction, for example, because of a virus that
interferes with the operation of the computer program.
Because a computer function notice will be confined to such technical
matters, it is also appropriate that a notice be prima facie evidence of
the matters stated in he notice. Making the notice prima facie evidence of
those matters would also result in more efficient court proceedings where
evidence of such matters is required, and would save time and costs. The
fact that a computer function notice is only prima facie evidence means
that AFMA would still be required to strictly prove each of the matters of
fact asserted in the certificate where a party to the proceedings adduces
evidence that puts those matters in doubt.
Subsection 163D(3) states when a computer program is functioning correctly.
This is consistent with subsection 163C(2).
Section 163E provides that all requirements in plans of management in force
under section 17 of the FM Act that require the holder of a fishing
concession to return the fishing concession certificate for the concession
to AFMA, no longer apply. The 'fishing concession certificate' is the
certificate that AFMA issued to the holder of the fishing concession as
evidence of the grant of the fishing concession. With the introduction of
the electronic licensing system (known as GOFish) and developments in
electronic record keeping, these requirements are redundant.
Item 22: Subsection 165(1) (definition of relevant decision)
This item omits the reference to section 49 of the FM Act, which is
consequent upon the repeal of that provision. See item 19.
Schedule 2-Amendment of the Torres Strait Fisheries Act 1984
Item 1: Subsection 3(1)
This item inserts the definition of a 'commercial fisher'.
Item 2: Subsection 3(1)
This item inserts the definition of a 'commercial fishing licence' to be a
licence under subsection 19(2) or (4) of the Torres Strait Fisheries Act
1984 (TSF Act).
Item 3: Subsection 3(1)
This item inserts the definition of a 'fish receiver licence' to be a
licence under subsection 19(4B) of the TSF Act.
Item 4: Section 46AA
This item replaces the existing section 46AA with a new one to ensure that
only the first receiver of fish, caught in the Torres Strait Protected Zone
or an area of water under subsection 15(1), is required to hold a fish
receiver licence.
This item creates two offences. Subsection 2 provides for an offence if a
person does not hold a fish receiver licence (or a licence that enables the
person to receive fish) but receives fish directly and the other
requirements of the subsection are met. Subsection 4 prescribes it an
offence if a person holds a fish receiver licence but they receive fish
from a person who is not a commercial fisher and the other requirements of
the subsection are met. The penalty for each offence is 50 penalty units.
It is permissible for a person to not hold a fish receiver licence if they
intend to process the fish for personal consumption or use.
This item will address an unintended error in the current legislation
whereby all individuals in the supply chain are required to hold a licence.