Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
1998-99
THE
PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
EXPLANATORY
MEMORANDUM
(Circulated
by the authority of the Minister for Agriculture, Fisheries and Forestry, the
Hon Warren Truss MP)
ISBN: 0642 426589
The purpose of the Fisheries Legislation Amendment Bill (No.2)
1999 is to introduce new measures for control, monitoring and enforcement of
foreign and domestic fishing operations, including the collection of accurate
fishing data, to increase management effectiveness and support sustainable use
of Australia’s fisheries resources.
There is no direct financial impact from the components of the Bill
associated with improving data collection and enforcement action against
misreporting fishing. The financial impact of the Australian Fisheries
Management Authority being liable to pay fringe benefits tax (FBT) is estimated
as amounting to $60,000 for the 1998/99
financial year had the Authority been liable to FBT. For the future, AFMA is
considering salary packaging arrangements which may increase the FBT paid but
would be exactly offset by reduced cash
salaries.
This item provides for the Act to be called the Fisheries Legislation
Amendment Act (No. 2) 1999.
The Act is to commence on Royal Assent, subject to the variations
below.
Both Schedules 1 and 2 commence on a day or days to be fixed by
Proclamation. Should a Part of these Schedules not have commenced within six
months of the Act receiving Royal Assent, the Part will commence the day after
this period.
This clause provides that the Acts referred to in the Schedules are amended
as set out in the Schedules and the other items in the Schedules have effect
according to their terms.
Item 1: Paragraph 7(da)
This item will allow for the Australian Fisheries Management Authority (AFMA)
to manage and carry out programs such as adjustment, restructuring, exploratory
and feasibility programs not developed by AFMA in addition to those developed by
AFMA.
Item 2: Paragraph 7(e)
This item adds to the functions of AFMA by enabling the placement of
observers on foreign fishing boats on the high seas to gather scientific and
compliance data. Such placement would only occur where there is a fisheries
management arrangement involving Australia and the foreign vessels flag State
(nationality) and an agreed requirement for embarkation of an
observer.
Item 3: At the end of section 87
Part 1 – Fisheries Administration Act 1991
Item 1: After section 8
8A Regulations may provide for placement of observers on foreign fishing
boats operating outside the AFZ
This is a new item which provides for
the making of regulations allowing for the placement of observers onboard
foreign fishing boats operating outside the Australian fishing zone. This would
provide flexibility to implement arrangements agreed both with foreign countries
and within regional fisheries organisations. It would also provide a legitimate
basis for observers being placed on foreign boats on the high seas. Observers
would utilise limited powers for their duties of gathering data for research and
compliance monitoring.
Item 2: Paragraph 14(2)(c)
This item adds new clauses to extend the
making of regulations to cover requiring records and returns of by-catch taken.
A regulation requiring collection of data of by-catches taken in the course of
fishing operations removes any doubt over the capacity of the present provisions
to explicitly allow for regulation to cover the making of returns in relation to
by-catch. Such regulations could for example be necessary to gather data on the
effect of long lining on seabirds.
Item 3: Subsection 15(3)
This item provides a revision to clarify
the meaning of the clause by deleting a second ‘or’.
Item
4: At the end of subsection 17(1A)
Item 5: After subsection
17(1A)
Item 6: Subsection 17(1B)
These items clarify the requirements for
AFMA to make and Gazette a determination when a plan of management is not
warranted and also to revoke a previous determination.
Item 7: Subsection 17(6D)
This item replaces a existing provision
in order to clarify management of incidental catch of fish and non fish species.
The replacement paragraph requires provisions, eg. mitigation measures, in
management plans directed at reducing to a minimum incidental catch not taken
under or in accordance with that plan.
Item 8: Subsection 17A(1)
This item increases AFMA’s
notification responsibilities in preparing draft fishery management plans by
adding a need to notify stakeholders of a determination affecting the
preparation of a fishery management plan.
Item 9: Paragraph 94(4)(d)
Item 10: Subsection 94(8) (definition of foreign fishing
boat)
This item repeals and replaces the definition of a foreign
fishing boat. It will allow regulation of port access by foreign boats which
are either equipped for fishing or being used, or are intended to be used, to
support fishing. Such regulation can be used to deter or not to support fishing
(through provisioning, bunkering etc) by foreign boats engaged in illegal,
unregulated and unreported fishing. This item also clarifies that this control
of access to ports covers foreign boats equipped for fishing which need not also
to have been boats designed for fishing.
Item 11: Paragraph
95(1)(d)
Item 12: Paragraph 95(1)(e)
Item 13: Paragraph
95(1)(e)
Item 14: Paragraph 95(1)(f)
Item 15: Paragraph 95(1)(f)
These items amend a group of offences
dealing with contravention of conditions of fishing authorisations by adding
scientific permits, fish receiver permits and port permits. This will enable
enforcement of the conditions associated with these types of permits.
Item 16: At the end of subsection 95(1)
Item 17: Saving provisions
This item is a saving provision to save
the paragraphs 95(1)(d,e,f), as if the amendments had not been made, for the
purposes of any enforcement proceedings initiated but not concluded.
Item 18: At the end of section 98
This item adds further clauses to
a section dealing with court orders following conviction. The proposed
amendment is to allow the court to determine the time of commencement of the
period(s) that a person not be on a boat engaged in fishing, or for that
person’s fishing concession be suspended. It will also allow for
exclusion of periods of time from counting towards the period ordered by the
court. Such additions to this section allow for an effective sanction of an
operator in a fishery which may have closed seasons.
Item 19: At the
end of subsection 101(1)
Item 20: At the end of subsection 101A(4)
These items add the
holding of a scientific permit to the authorisations that may be held so that
offences associated with having a foreign boat equipped with fishing equipment
in the AFZ do not apply.
Item 21: Subsection 102(6) (definition of foreign fishing
boat)
This item repeals and replaces the definition of a foreign
fishing boat as it applies in this section to allow regulation of port access by
a foreign boat which is either equipped for fishing or being used, or is
intended to be used, to support fishing.
This item is associated with
the proposed amendments in Item 11.
Item 22: Subsection 106(1)
Item 23: After subsection 106(2)
These items add new clauses that
provide for forfeiture of the boat, fishing gear, catch or proceeds of sale of
this catch for offences which relate to the provision of false and misleading
information to the AFMA. Accurate data is essential for quota monitoring and
for management of fisheries.
Item 24: Paragraph168(2)(a)
This item increases the maximum penalty that may be prescribed by regulations from 10 penalty units to 25 penalty units (currently $2,750) consistent with penalties for similar offences under the Fisheries Management Act and recognising the character of many matters covered by the regulations.
Item 25: Paragraph 168(2)(i)
This item adds section 95 offences to
those for which penalty infringement notices may be issued. This provides
flexibility by allowing an alternative to prosecution for minor
transgressions.
Item 26: Paragraph 168(2)(r)
This item substitutes the term persons
for officer to enable Regulations to be made for observers, which are not
prescribed officers, to be carried on board fishing boats.