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2008-2009-2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
FISHERIES LEGISLATION AMENDMENT BILL (No. 2) 2010
EXPLANATORY MEMORANDUM
FISHERIES LEGISLATION AMENDMENT BILL (No. 2) 2010
GENERAL OUTLINE
The Fisheries Legislation Amendment Bill (No.2) 2010 will amend the
Fisheries Management Act 1991 (FM Act), the Fisheries Administration Act
1991 (FA Act) and the Fishing Levy Act 1991 (FL Act) to facilitate the
implementation of
co-management, regulatory simplification, the rationalisation of management
advisory committees (MACs) and allow the Australian Fisheries Management
Authority (AFMA) to provide services to other agencies.
The co-management and MAC amendments will enable industry to be given a
more prominent and direct role in the management of fisheries, and will
improve the effectiveness of MACs.
Co-management
The Bill will enhance the ability of AFMA to achieve efficient, cost
effective and sustainable fisheries management, and to thereby meet its
objectives under the
FM Act and the FA Act, by facilitating the implementation of co-management
with various stakeholders in Commonwealth fisheries. The benefits of co-
management are highlighted in the Fisheries Research and Development
Corporation report,
Co-Management: Managing Australia's fisheries through partnership and
delegation.
To enable the co-management arrangements to be fully implemented, the
amendments will provide AFMA with the capacity to delegate powers and
functions under the
FM Act to primary stakeholders in a fishery in which there is a co-
management arrangement. 'Primary stakeholders' are defined in the Bill as
the holders of fishing concessions or an incorporated body that represents
those holders, such as the Commonwealth Fishing Association or another
person prescribed by the regulations. The exercise of those functions and
powers by delegates will be subject to the directions of the AFMA Chief
Executive Officer (CEO). The CEO will have the power to revoke a
delegation. The power to delegate to primary stakeholders will also be
subject to other requirements of the Acts Interpretation Act 1901.
Although some powers and functions will be delegated to primary
stakeholders, AFMA will still have oversight capabilities to ensure
governance and sustainability requirements under the Commonwealth Fisheries
Harvest Strategy Policy and reporting under the Environment Protection
Biodiversity and Conservation Act 1999.
Regulatory Simplification
The Bill will simplify the regulatory regime administered by AFMA by:
1. enabling the regulations to prescribe common conditions that apply to
the holders of fishing concessions across different fisheries; and
2. simplifying the requirements for amending fisheries plans of management
to remove conditions that have been prescribed by the regulations, or
which are otherwise redundant.
The Bill will remove the requirement that a plan of management for a
fishery contains measures that duplicate administrative processes, which
are redundant or already prescribed under regulation (and therefore result
in unnecessary costs that are passed on to the holders of fishing
concessions), particularly with regard to reporting and accountability;
consolidate the powers in the FM Act to direct the closure or partial
closure of a fishery; and simplify the procedures for making minor
amendments to fisheries management plans (such as the correction of errors,
or changes in format).
The Bill will also simplify the consultation processes for amending a plan
of management, particularly for minor amendments. In cases where an
amendment is more than a minor modification of a plan of management, as a
minimum, consultation with the MAC and peak industry body representing
holders of fishing concessions will be required.
Rationalisation of management advisory committees (MACs)
The Bill will also remove the restriction in subsection 56(4) of the FA Act
on abolishing a MAC that is provided for in a fishery management plan.
Under the existing legislation, AFMA can abolish a MAC that is provided for
in a plan, but only by amending the particular plan. This would be a more
costly process, particularly where amendments are required to a number of
plans.
The amendment will therefore enable AFMA to complete the restructure of the
MACs. Industry and MAC members participated in (and were supportive of) the
decision to reduce the MAC structure from twelve to six. This decision was
considered by all parties to be appropriate to improve efficiency and
effectiveness in the delivery of advice to AFMA, with the added benefit of
lowering the fisheries administration costs borne by industry.
Provision of Services
The Bill will serve the national interest by enabling AFMA to make its
expertise in fisheries management available to Commonwealth, state,
territory or overseas agencies by, for example, making trained fisheries
observers available to state or territory fisheries management agencies, or
by sharing its technical expertise in the installation and use of vessel
monitoring systems. This amendment will also allow AFMA to charge
Commonwealth and state agencies for the provision of services under the
existing section 94 of the FA Act.
Each of these measures is expected to result in a reduction in the costs
that are passed onto industry.
FINANCIAL IMPACT STATEMENT
The amendments have been assessed as having an insignificant financial
impact on the Australian Government.
FISHERIES LEGISLATION AMENDMENT BILL 2010
NOTES ON ITEMS
Section 1: Short Title
Section 1 is a formal provision specifying the short title of the Act may
be cited as the Fisheries Legislation Amendment Act 2010.
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 will commence on the 28th day after this Act receives the
Royal Assent.
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 Administration Act 1991
Item 1: Subsection 4(1)
This item inserts a definition of 'co-management arrangement' by providing
that it has the meaning given in new section 88 (see Schedule 1, Item 6).
Item 2 - Subsection 4(1)
This item inserts a definition of 'primary stakeholder', for the purpose of
new paragraph 93(1)(f) of the FA Act, new subsections 17(11) and 41A(2C) of
the FM Act. A description of primary stakeholder is required to define
organisations or persons to which AFMA is able to delegate powers and
functions under
co-management arrangements.
Item 3 - Paragraph 7(1)(g)
This item repeals paragraph 7(1)(g) of the FM Act and substitutes new
paragraphs 7(1)(fa) and (g). Paragraph 7(1)(fa) is in the same terms as the
former paragraph 7(1)(g). New paragraph 7(1)(g) gives AFMA an additional
function of making its expertise available to an entity in the
Commonwealth, a State, a Territory or a foreign country, or to another
person. Such expertise includes expertise in information technology,
technical capability (such as in vessel monitoring systems), and technical
experts (such as observers engaged pursuant to AFMA's function in paragraph
7(1)(ea) of the FA Act).
Item 4 - Section 54
This item removes from section 54 the words "subject to subsection 56(4)".
It is consequential to the repeal of subsection 56(4) (see Schedule 1, item
5).
Item 5 - Subsection 56(4)
This item repeals subsection 56(4), which provides that AFMA cannot abolish
a management advisory committee while the relevant fisheries management
plan (determined under s17 of the FM Act) makes provision for the
committee.
Subsection 56(2) retains the requirement for AFMA to establish management
advisory committees to assist it in the performance of its fisheries
management powers and functions. The repeal of subsection 56(4) enables
AFMA to restructure management advisory committees to achieve more
efficient and effective representation through consolidated multi-fishery
management advisory committees, without having to amend relevant fisheries
management plans individually. AFMA will therefore be able to restructure
management advisory committees by a more efficient and less costly process.
Item 6 - After section 87
This item inserts a new section 88, which provides that AFMA may enter into
a co-management arrangement with stakeholders in a fishery under which the
stakeholders assist AFMA to perform its functions and powers for the
sustainable management of a fishery. Stakeholders in a fishery might
include concession holders, industry representative bodies, indigenous and
environmental groups.
Item 7 - After paragraph 93(1)(e)
This item inserts new paragraph 93(1)(f), which adds a primary stakeholder
in a co-management arrangement to the persons or entities to which AFMA's
CEO may delegate functions or powers that have been delegated to the CEO by
the Commission. Under subsection 92(6) a delegate of the CEO is subject to
the directions of the CEO. The CEO may remove a delegation if the CEO deems
this appropriate. The delegation of powers under section 92 is also subject
to other requirements of the Acts Interpretation Act 1901.
'Primary stakeholder' is defined in new subsection 4(1) (see Schedule 1,
Item 2).
Schedule 2 - Amendment of the Fishing Levy Act 1991
Item 1- numbering system in section 7
This item provides for the inclusion of a second part to section 7 (see
Schedule 2, Item 2).
Item 2 - Definition of 'holder'
This item inserts into the FL Act a definition of 'holder' for the purpose
of section 7.
Schedule 3 - Amendment of the Fisheries Management Act 1991
Item 1 - Subsection 4(1)
This items inserts a definition of 'holder' of a fishing concession, to
make clear that unless the contrary intention appears, the 'holder' of a
licence (including foreign fishing licence or foreign master fishing
licence), fishing permit, or statutory fishing right means the person to
whom the licence, permit or right was granted or transferred; and, in the
case of a statutory fishing right that is leased to another person, the
lessee of the right. Therefore, unless the contrary intention appears, both
the owner of a statutory fishing right and a person who has temporary use
of the right (such as under a lease agreement) are holders of the right.
This means, for example, and depending on the circumstances of the
contravention, that both the owner of a statutory fishing right and/or a
lessee of the right could be prosecuted for a breach of paragraphs 95(1)(d)
or (e) of the FM Act.
The definition reflects the fact that fishing permits, foreign fishing
licences and foreign master fishing licences authorise particular
individuals to engage in the specified activity, and therefore cannot be
leased or otherwise temporarily assigned. Leasing of statutory fishing
rights is defined under subsection 4(1) of the FM Act.
Item 2 - subsection 4(1)
This item inserts a definition of 'primary stakeholder', which mirrors the
definition in the FA Act (see Schedule 1, item 2).
Item 3 - Subsection 17(5)
This item makes it optional, rather that mandatory, for a plan of
management for a fishery to set out the objectives of the plan, the
measures by which the objectives are to be attained, and the performance
criteria against which, and timeframes within which, the measures taken
under the plan may be assessed. These requirements currently duplicate
administrative processes, which are redundant or already prescribed under
regulations, including accountability and performance assessment
requirements.
The current requirement that a plan of management includes a statement of
objectives, has lead to repetition of the objectives AFMA is required to
pursue as set out in section 3 of the FM Act and section 6 of the FA Act
within plans of management. AFMA is required to pursue these objectives in
the performance of all of its functions, including its function of devising
and implementing management regimes for Commonwealth fisheries. By making
the inclusion of objectives in a plan of management optional, unnecessary
duplication of objectives is eliminated.
The removal of duplication of objectives prescribed in legislation and
plans of management for individual fisheries, removes the duplication of
AFMA's reporting requirements. AFMA is required to provide comprehensive
performance assessments through its Annual Report to Parliament; its
various reports and assessment to the Department of the Environment, Water,
Heritage and the Arts, including as a condition of the accreditation of
plans of management under the Environment Protection Biodiversity and
Conservation Act 1999; and to the Department of Agriculture, Fisheries and
Forestry through the Bureau of Rural Sciences (BRS) and the Australian
Bureau of Agricultural and Resource Economics (ABARE).
The proposed regulatory simplification will mean that fisheries will be
increasingly managed under common rules and not under fishery specific
management plans. The plans will provide for the allocation and definition
of statutory fishing rights, but will no longer form all encompassing sets
of rules that lend themselves to performance assessment of the management
of fisheries.
Item 4 - Subsections 17(5A) and (5B)
This item repeals two subsections, because their requirements are replaced
by the amendment to s41A. All directions by AFMA that fishing is not be
engaged in, either in a fishery, or in a particular part of a fishery,
whether or not a plan of management is in force for the fishery, will be
given under s41A (see Schedule 3, item 9).
Item 5 - Subsection 17(6B)
This item repeals and replaces subsection 17(6B) to define a determination
as a legislative instrument.
Item 6 - Subsection 17(11)
This item repeals and replaces subsection 17(11). The amendment is a
consequence of the repeal of subsections 17(5A) and (5B) and also provides
that, in addition to the CEO, AFMA may delegate any power conferred upon it
under a plan of management for a fishery in accordance with paragraph
17(6)(aa) to a primary stakeholder who is to assist AFMA to manage the
fishery under a co-management arrangement (within the meaning of the FA
Act).
Item 7 - Subsections 19(2) and (3)
This item repeals subsections 19(2) and 19(3). These provisions make
reference to sections under the Acts Interpretation Act 1901 which have now
been superseded in the Legislative Instruments Act 2003.
Item 8 - At the end of section 20
This item inserts new subsections 20(6) to 20(8).
Subsection 20(6) provides that consultation requirements (as prescribed
under subsections 20(2), subsections 17(1B) to (4), section 18 and section
19 of the FM Act) do not apply to an amendment of a plan of management that
is minor in nature or where the amendment brings the plan into line with
legislation or regulations. The types of amendments are specified in
paragraphs 20(6)(a) to (d) and include:
a) corrections to an error in the plan; or
b) changes to the format or presentation of the plan; or
c) changes to a matter in the plan to make the plan consistent with
the FM Act or another Act, or the regulations. An example is the
removal of conditions in plans that concern the closure of
fisheries, or parts of fisheries, to fishing activities, following
the repeal by this Bill of s17(5A) of the FM Act; or
d) removal of conditions from the plan if conditions dealing with the
same subject matter (for example, conditions prescribing the
requirements for boats to have an operational vessel monitoring
system) have been prescribed in the regulations, whether or not the
conditions are in the same terms. In this circumstance, AFMA would
necessarily have engaged in extensive prior consultation, including
with the Minister, as part of the regulation making process.
As section 18 does not apply, Ministerial acceptance of a plan of
management is not required, before an amendment to a plan of management is
determined. In addition, after making the amendment, AFMA is not required
to give notification to the holders of statutory fishing rights that were
granted under the plan.
Subsection 20(7) provides that certain consultation requirements (as
prescribed under subsections 20(2), subsections 17(1B) to (4) and section
19) do not apply to an amendment of a plan if AFMA has engaged in prior
consultation as prescribed in the subsection.
However, an amendment in accordance with subsection 20(7) requires the
Minister to accept the amendment in accordance with section 18 before the
plan of management can be determined (as part of the requirement of
subsection 20(5)). In considering the amendment the Minister must
consider, and be satisfied, that AFMA engaged in prior adequate
consultation, and gave due consideration to any representations received.
The Minister must also consider, and be satisfied, that the plan is
consistent with AFMA's corporate plan and current operational plan.
Item 9 - subsections 41A(1) and (2)
This items repeals and substitutes subsections 41A(1) and (2). These items
also replace subsections 17(5A) and (5B).
The new subsections 41A(1) and (2) apply to all fisheries, whether or not a
plan of management is in force; and provide that before directing that
fishing is not to be engaged in, either in a fishery, or in a particular
part of a fishery (a closure direction), AFMA must consult with the
management advisory committee for the fishery, or, if there is no
management advisory committee, with all holders of fishing concessions,
scientific permits or foreign master fishing licences for the fishery.
New subsection 41A(2A) provides that AFMA must tell all holders of fishing
concessions, scientific permits or foreign master fishing licences about
the direction, in writing, at least 7 days before the direction takes
effect; unless the direction is given in an emergency.
New subsection 41A(2B) provides that if a direction is given in an
emergency, AFMA must give that notice about the directions as soon as it
can practicably do so.
New subsection 41A(2C) provides that AFMA may delegate the power to give a
closure direction to the CEO or to a primary stakeholder who is to assist
AFMA to manage the fishery under a co-management arrangement (within the
meaning of the FA Act).
Item 10 - After section 42A
This item inserts new s42B, which provides that the regulations may
prescribe conditions that apply to fishing concessions or foreign master
fishing licences; and that a provision of a plan of management has no
effect to the extent that it is inconsistent with such regulations
Item 11 - Paragraph 57H(1)(a)
This item replaces in paragraph 57H(1)(a) the reference to the "person to
whom the permit is granted" with the "holder of the permit". The amendment
makes clear that AFMA is required to enter into the Fishing Permits
Register both the name of the person to whom a permit is initially granted,
and a person to whom the permit is transferred.