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FISHERIES LEGISLATION AMENDMENT BILL (NO. 2) 2010

                                    2010



               THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                                   SENATE




              FISHERIES LEGISLATION AMENDMENT BILL (No. 2) 2010




                    SUPPLEMENTARY EXPLANATORY MEMORANDUM




     Amendments and New Clauses to be Moved on Behalf of the Government















AMENDMENTS TO FISHERIES LEGISLATION AMENDMENT BILL (No. 2) 2010


OUTLINE

Government amendments to the Fisheries Legislation Amendment Bill (No.
2) 2010 (the Bill) will amend the Fisheries Management Act 1991. The
measures seek to strengthen Australia's ability to prevent, deter and
eliminate illegal fishing in Australian waters.

The amendments will:
   1. provide strengthened arrangements for Australia and France to
      cooperatively enforce fisheries laws in the Southern Ocean in respect
      of their exclusive economic zones; and
2. clarify the defence that currently enables masters of foreign fishing
   vessels to plead the right to pass through the Australian fishing zone
   to enter Australian state and Northern Territory coastal waters.

The amendments to the Bill deliver measures that address illegal,
unreported and unregulated fishing in Australian coastal waters and the
exclusive economic zone around Australia's Southern Ocean territories.


Australia / France cooperation in the Southern Ocean

The amendments will give effect to the Agreement on Cooperative Enforcement
of Fisheries Laws between the Government of Australia and the Government of
the French Republic in the Maritime Areas Adjacent to the French Southern
and Antarctic Territories, Heard Island and the McDonald Islands Paris,
8 January 2007. This Agreement provides for strengthened arrangements for
Australia and France to cooperate in the use of their resources to enforce
fisheries laws in their respective maritime zones. For Australia this
includes Heard Island and the McDonald Islands, and for France, the
Kerguelen Islands, Crozet Islands, Saint-Paul Island and Amsterdam Island.
The Agreement allows authorised French vessels, under the control of an
Australian officer to patrol Australia's maritime zone around Heard Island
and the McDonald Islands, and vice versa. An Australian officer will
undertake the enforcement of Australian fisheries laws onboard French
vessels with the assistance of French officers. Likewise French officers
will undertake the enforcement of French fisheries laws onboard Australian
vessels. Enforcement activities will include boarding, inspection, hot
pursuit, apprehension, and the seizure and investigation of illegal fishing
vessels.

The Agreement complements the Treaty between the Government of Australia
and the Government of the French Republic on cooperation in the maritime
areas adjacent to the French Southern and Antarctic Territories (TAAF),
Heard Island and the McDonald Islands, Canberra, 24 November 2003. The
Treaty was ratified and entered into force on 1 February 2005. The
Agreement and the Treaty are intended to create a complementary framework
for cooperation between Australia and France to combat illegal fishing
activity within Australian and French waters in the Southern Ocean.


Deterrence of Illegal Fishing

Australia maintains a strong position against illegal fishing. These
amendments will strengthen Australia's ability to deter and prosecute
foreign fishers traversing the Australian fishing zone to fish illegally
within Australian coastal waters, and thus help protect Australia's
sustainably managed fisheries.

Amendments are required to address a technical legal issue in the Fisheries
Management Act 1991 which was identified by the Commonwealth Department of
Public Prosecutions in an alleged illegal foreign fishing case. In this
case, the charges were not laid against the fisher because it was possible
that he could utilise a defence in the Fisheries Management Act 1991
despite clearly stating his intention to transit the Australian fishing
zone to coastal waters to undertake illegal fishing in those waters.

Without rectification, foreign fishers could potentially change their
methods of operations making it difficult for Australian authorities to
prosecute alleged illegal fishing operators. The deterrence value against
illegal foreign fishing would therefore be diminished.

Amendments will define that a point outside the Australian fishing zone
must be on the seaward side and not the landward side, which would then
exclude state and Northern Territory coastal waters from the defence for
traversing the Australian fishing zone.


FINANCIAL IMPACT STATEMENT

The amendments have been assessed as having an insignificant financial
impact on the Australian Government or affected parties.
GOVERNMENT AMENDMENTS TO THE FISHERIES LEGISLATION AMENDMENT BILL (No. 2)
2010

NOTES ON AMENDMENTS

Amendment (1)
This amendment inserts a new part heading for the existing provisions on co-
management and other regulatory reforms into Schedule 3 of the bill.

Amendment (2)
This amendment inserts a new part heading and three further items regarding
illegal transiting of the Australian fishing zone into Schedule 3 of the
bill. Each item inserts an offence for a foreign fishing vessel to be
traversing through the Australian fishing zone to coastal waters.

Item 12 repeals paragraph 101(1)(d) and substitutes a new defence for being
in the Australian fishing zone; that the boat must be travelling by the
shortest practical route, with gear stowed, from a point beyond the outer
limits of the Australian fishing zone to another such point.

Item 13 repeals paragraph 101A(4)(d) and substitutes a new defence for
being in the Australian fishing zone; that the boat must be travelling by
the shortest practical route, with gear stowed, from a point beyond the
outer limits of the Australian fishing zone to another such point.

Item 14 repeals paragraph 101AA(2)(d) and substitutes a new defence for
being in the Australian fishing zone; that the boat must be travelling by
the shortest practical route, with gear stowed, from a point beyond the
outer limits of the Australian fishing zone to another such point.

Amendment (3)
This amendment inserts a new part heading and six further items regarding
the domestic implementation of the Cooperative Enforcement Agreement
between Australia and France into Schedule 3 of the bill.

Item 15 inserts into subsection 4(1) a definition of 'cooperative
enforcement' by reference to new section 84B. Section 84B provides that
'cooperative enforcement' is conducted in accordance with the Cooperative
Enforcement Agreement and within the area of cooperation.

Item 16 inserts into subsection 4(1) a definition of 'Cooperative
Enforcement Agreement' by reference to new section 84B which provides that
the Cooperative Enforcement Agreement is the Agreement on Cooperative
Enforcement of Fisheries Laws between the Government of Australia and the
Government of the French Republic in the Maritime Areas Adjacent to the
French Southern and Antarctic Territories, Heard Island and the McDonald
Islands that was done at Paris on 8 January 2007.

Item 17 inserts into subsection 4(1) a definition of 'international
officer' by reference to new section 84B. An international officer is a
person authorised by a competent authority of the Government of the French
Republic to conduct cooperative enforcement.

Item 18 inserts a new section 84B on the Cooperative Enforcement Agreement.
The new section sets out what agreements encompass the Cooperative
Enforcement Agreement for the purpose of implementing Australia's
international obligations with France to jointly tackle illegal fishing in
their respective maritime zones in the Southern Ocean.

Subsection 84B(1) states the purpose of the section to implement the
Cooperative Enforcement Agreement.

Subsection 84B(2) authorises and provides powers of fisheries officers
(outlined in this Division) to international officers and that, during
cooperative enforcement activities, international officers will be taken to
have exercised the powers as an officer.

Subsection 84B(3) provides that regulations may prescribe conditions for
the exercise of powers by an international officer.

Subsection 84B(4) ensures that international officers will be required to
identify themselves when boarding and conducting enforcement activities on
vessels. This approach is consistent with the Enforcement Agreement, which
provides that officers from both France and Australia will carry
identification. If an international officer seizes a person's catch,
equipment or boat they must provide written notice to the person of the
grounds on which the action was taken.

Subsection 84B(5) ensures that where an international officer exercises a
power under Part 6 of the Fisheries Management Act 1991, this action is
valid and the officer is not liable to any civil or criminal proceedings in
respect of anything done or omitted in good faith when conducting
activities outlined in subsection (3).

Subsection 84B(6) provides that an officer may perform powers granted by
the Government of the French Republic in the conduct of cooperative
enforcement activities.

Subsection 84B(7) provides an officer is not liable to any civil or
criminal proceedings in respect of anything done or omitted in good faith
when conducting activities outlined in subsection (6).

Subsection 84B(8) provides definitions for 'cooperative enforcement',
'Cooperative Enforcement Agreement' and 'international officer'.

'Cooperative enforcement' is defined in the Cooperative Enforcement
Agreement and means 'fisheries enforcement activities such as the boarding,
inspection, hot pursuit, apprehension, seizure and investigation of fishing
vessels that are believed to have violated applicable fisheries laws,
undertaken by one Party in cooperation with the other Party'. Cooperative
enforcement is to be conducted in accordance with the Cooperative
Enforcement Agreement and within the area of cooperation, as defined in the
Cooperative Enforcement Agreement.

'International officer' is defined as a person who is authorised by the
Government of the French Republic to conduct cooperative enforcement
activities.

Item 19 omits the words 'but not within the territorial sea of another
country' from
subsection 87(1) to permit a hot pursuit commenced in Australia's maritime
zones to continue through the territorial sea of another State, subject to
Item 18 (the Cooperative Enforcement Agreement provisions). For example,
this will permit Australian officers to continue a hot pursuit commenced in
Australia's maritime zones through France's territorial sea, and vice
versa, in accordance with the Cooperative Enforcement Agreement.

Item 20 inserts a new subsection 87(1) (1AA) to ensure that the powers
relating to hot pursuit are not exercised at a place outside the Australian
fishing zone in the territorial sea of another State unless authorised by a
written agreement, which may be evidenced in a treaty such as the
Cooperative Enforcement Agreement. Such agreement could also be obtained in
writing on an ad hoc basis in relation to specific cases of hot pursuit, as
and when required.