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2004-2005
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE SENATE
FISHERIES LEGISLATION AMENDMENT (COOPERATIVE FISHERIES MANAGEMENT
ARRANGEMENTS AND OTHER MATTERS) BILL 2005
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Fisheries, Forestry and
Conservation, Senator the Hon Ian Macdonald)
CONTENTS
1. GENERAL OUTLINE 3
Financial Impact Statement 5
2. NOTES ON CLAUSES 6
FISHERIES LEGISLATION AMENDMENT (COOPERATIVE FISHERIES ARRANGEMENTS AND
OTHER MATTERS) BILL 2005
1. GENERAL OUTLINE
1. The Bill clarifies the meaning of the Commonwealth's fisheries
management objectives and enables cooperative fisheries management
arrangements to operate with more flexibility and efficiency.
2. Schedule 1 of the Bill provides for a number of amendments to the
Fisheries Management Act 1991 (FMA) and the Fisheries Administration
Act 1991 (FAA) to clarify the meaning of two legislative objectives.
3. Under current legislation, the Commonwealth Minister and AFMA must
pursue the objective of "maximising economic efficiency in the
exploitation of fisheries resources". However, there is uncertainty
within the Australian community, particularly the commercial fishing
industry, about what this objective actually means.
4. The economic efficiency objective has been the subject of many
different interpretations and several court cases over the years.
Although the courts have arrived at an interpretation of the economic
efficiency objective that is consistent with Government policy, the
Government has decided to amend the FMA and FAA to express the
objective in more simple terms.
5. In rewording the economic efficiency objective in the FMA and FAA, the
Government is not attempting to change or otherwise influence the
established judicial interpretation of the economic objective. In the
Government's view, the new wording simply restates the objective in
'plain English' terms.
6. Schedule 1 of the Bill inserts into the FMA and FAA the principles of
ecologically sustainable development (ESD) that complement those found
in the Environment Protection and Biodiversity Conservation Act 1999
(EPBC Act).
7. The FMA and FAA require the Australian Fisheries Management Authority
(AFMA) to ensure the exploitation of Australia's fisheries resources is
conducted in a manner consistent with the principles of ESD, however,
the legislation currently provides no guidance on how this objective
should be interpreted. In the absence of an explicit articulation of
the principles of ESD current case law requires the ESD objective to be
interpreted quite narrowly.
8. The insertion of principles for ESD from the EPBC Act fulfils a
commitment made in the 2003 Commonwealth Fisheries Policy Review (the
Review), and will provide a more solid basis for environmental,
economic and social factors affecting the fisheries to be considered in
decisions relating to the management of Commonwealth fisheries.
9. Beyond clarifying the meaning of the objectives, the Government does
not expect the amendments to the fisheries management objectives to
have any significant impact on how the Commonwealth fisheries are
managed.
10. Schedule 2 of the Bill addresses current inadequacies in the FMA and
FAA in relation to Offshore Constitutional Settlement (OCS) fisheries
arrangements. Specifically, the Bill contains amendments that enable
the Government to adapt the OCS fisheries arrangements to reflect
improved understanding of fish stocks and their dynamics, contemporary
management issues and provide flexibility for cooperative agreements
between the State/Northern Territory (NT) and Australian Governments.
11. The OCS fisheries arrangements were established in 1979 to allow the
jurisdictional lines, which provide for state laws to apply inside
three nautical miles and Commonwealth laws to apply from three to 200
nautical miles, to be overridden by agreement between the Australian
Government and relevant governments.
12. The intention of OCS fisheries arrangements is to provide for the
holistic management of fisheries - recognising that fisheries do not
align with boundaries drawn on maps. Already, more than 50 active
fisheries arrangements have been agreed between the Commonwealth and
the states/NT. The FMA refers to these as "arrangements" but the term
"OCS" is used colloquially.
13. The Australian Government's 2003 Commonwealth Fisheries Policy Review
(the Review) identified concerns with the current OCS fisheries
arrangements. The Review highlighted that there is a general lack of
consistency and effective cooperation on the management of some fish
stocks straddling Commonwealth, State and NT jurisdictions. The Review
committed the Government to progressively review OCS fisheries
arrangements with the states and NT. The Bill will support the
implementation of this commitment.
14. In particular, the Bill seeks to address a primary problem in the
current legislation, which is that Governments have no power to amend
or vary OCS fisheries arrangements.
15. At present, to correct any errors, clarify any ambiguities or vary a
jurisdiction in an OCS fisheries arrangement, the original instrument
must be terminated and an entirely new agreement created. This process
impacts management plans, permits and other instruments which are
established under an OCS fisheries arrangement. It is also inefficient
and time and resource intensive.
16. This Bill provides a broad, express power in the FMA to change existing
and future OCS fisheries arrangements. The power will be given to
Commonwealth and State/NT Ministers. This is considered to be the most
effective, flexible and time efficient process for amending OCS
fisheries arrangements.
17. Schedule 2 also amends the FMA to give the powers to create and
terminate OCS fisheries arrangements, which currently rest with the
Governor-General and State/NT Governors, to Commonwealth and State/NT
Ministers. Approval through the Governor-General and State/NT
Governors is considered to be a formality and creates an additional
administrative step. The power to create, vary and terminate an OCS
should be provided as a package to a single level of administration.
18. Aside from the administrative amendments to OCS fisheries arrangements,
the Bill also introduces a new and innovative option for the management
of fisheries resources by the Commonwealth and State/NT governments. At
present, the FMA limits the legal jurisdiction of Joint Authority
cooperative fisheries arrangements that involve the Commonwealth and
more than one State to being managed under Commonwealth law. In
practice, this model is restrictive as there will be multi-
jurisdictional arrangements where it is most appropriate, and desired
by all parties, to apply State laws. The Natural Resources Management
Ministerial Council has agreed to the proposed amendment at its meeting
of 3 December 2004. This means that the States and NT are committed to
amending relevant legislation to reflect the Australian Governments
legislative changes and ensure that the FMA amendments will be
effective.
19. The Bill addresses this limitation by introducing the concept of
regional fisheries arrangements. Regional fisheries arrangements will
be similar to existing Joint Authority arrangements in that they will
allow the Commonwealth and one or more States to enter into a single
OCS arrangement for a fishery. However, these arrangements can be
distinguished from Joint Authority arrangements in two important ways.
Firstly, State laws could be applied under an arrangement involving the
Commonwealth and more than one State. Secondly, regional fisheries
arrangements would allow more than one law to be applied in a fishery
under a single OCS. This will work in practice by defining the areas in
which each law would apply, with these areas most likely next to each
other but not overlapping. This option provides for greater flexibility
for cooperative management arrangements and the ability to rationalise
existing OCS fisheries arrangements.
20. Australia's fishing industry will benefit from the amendments to OCS
fisheries arrangements as they will provide for better and more
flexible management of Australia's important fisheries resources. These
changes are essential to ensure that our marine resources are managed
in the most efficient and effective manner possible.
Financial Impact Statement
The Bill is not intended to have any financial impact on the fishing
industry or AFMA. The only cost to the Australian Government associated
with the legislative amendments is the usual costs of developing and
implementing the legislation.
4 NOTES ON CLAUSES
Clause 1: Short title
1. Clause 1 is a formal provision specifying the short title of the Act.
The Act will be called the Fisheries Legislation Amendment (Cooperative
Fisheries Arrangements and Other Matters) Act 2005.
Clause 2: Commencement
1. Clause 2 provides that this Act will commence on the day on which the
Act receives the Royal Assent.
Clause 3: Schedule(s)
1. Clause 3 provides that the Fisheries Management Act 1991 and the
Fisheries Administration Act 1991 are amended or repealed as set out in
the Items in Schedule 1 and 2 of the Bill.
Schedule 1: Objectives
Fisheries Administration Act 1991
Item 1: Subsection 4(1)
1. Item 1 inserts a definition of the 'principles of ecologically
sustainable development' which is consistent with the definition of
ecologically sustainable development (ESD) in section 3A of the
Environment Protection and Biodiversity Conservation Act 1999 (EPBC
Act).
2. This definition of ESD is referenced to the definition of ESD in
section 6A of the Fisheries Administration Act 1991, which is inserted
by item 4.
3. In administering the Fisheries Administration Act 1991, the Australian
Fisheries Management Authority (AFMA) must pursue ESD. In the absence
of an explicit articulation of the principles of ESD, current case law
requires the ESD objective to be interpreted quite narrowly. The
amendment will provide AFMA with guidance on how its decisions relating
to the management of Commonwealth fisheries must attempt to balance the
"triple bottom line" of economic, environmental and social outcomes for
fisheries
Item 2: Paragraph 6(b)
4. This item omits 'and the exercise of the precautionary principle' from
paragraph 6(b), and substitutes it with 'which include the exercise of
the precautionary principle'.
5. This slight change has been made because the principles of ESD that is
being inserted into the legislation virtually replicates the meaning of
the precautionary principle, as defined in the Fisheries legislation.
6. The change ensures that no one interprets the insertion of the
principles of ESD as giving more or less emphasis to the precautionary
principle than is currently required under the Fisheries Management Act
1991 and the Fisheries Administration Act 1991.
Item 3: Paragraph 6(c)
1. Item 3 repeals the current definition of the 'economic efficiency'
objective in paragraph 6(c) the Fisheries Administration Act 1991. It
then substitutes a new definition of the 'economic efficiency'
objective, which is expressed as 'maximising the net economic returns
to the Australian community from the management of Australian
fisheries. The economic efficiency objective encourages AFMA to make
decisions that will improve the net economic return to the Australian
community from allowing private access to a public resource.
2. In the Government's view, the new definition is entirely consistent
with previous court decisions of the meaning of economic efficiency and
simply restates the objective in more simple terms. Beyond clarifying
the issue the amendment is not expected to have any impact on how the
Australian fisheries are managed.
Item 4: After section 6
3. Item 4 inserts the definition of the principles of ESD. This
definition of ESD is consistent with the definition in the EPBC Act.
Fisheries Management Act 1991
Item 5: Paragraph 3(1)(b))
4. This item omits 'and the exercise of the precautionary principle' from
paragraph 3(1)(b), and substitutes it with 'which include the exercise
of the precautionary principle'.
5. The inclusion of reference to the precautionary principle in the
objectives of the Fisheries Management Act 1991 does not give more
weight to the precautionary principle than the other objectives of ESD.
Item 6: Paragraph 3(1)(c)
6. Item 2 repeals the current definition of 'economic efficiency' in
paragraph 3(1)(c) the Fisheries Management Act 1991. It then
substitutes a new definition of 'economic efficiency' which is
expressed as 'maximising the net economic returns to the Australian
community from the management of Australian fisheries. The economic
efficiency objective encourages AFMA to make decisions that will
improve the net economic return to the Australian community from
allowing private access to a public resource.
7. In the Government's view, the new definition is entirely consistent
with previous court decisions of the meaning of economic efficiency and
simply restates the objective in more simple terms. Beyond clarifying
the issue the amendment is not expected to have any impact on how the
Australian fisheries are managed.
Item 7: After section 3
8. This Item inserts a definition of the 'principles of ecologically
sustainable development' after section 3 of the Fisheries Management
Act 1991 which is consistent with the definition of ecologically
sustainable development (ESD) in section 3A of the Environment
Protection and Biodiversity Conservation Act 1999.
9. The inclusion of the definition of ecologically sustainable development
after section 3 in the Fisheries Administration Act 1991 provides the
Australian Fisheries Management Authority (AFMA) with additional
guidance on how its decisions must attempt to balance the 'triple
bottom line' of economic, environmental and social outcomes.
10. The inclusion of two references to the precautionary principle in the
objectives of the Fisheries Management Act 1991 does not give more
weight to the precautionary principle than other principles of ESD.
Item 8: Subsection 4(1)
11. Item 8 inserts the definition of the principles of ecologically
sustainable development (ESD) in subsection 4(1) of the Fisheries
Management Act 1991. This definition of ESD is entirely consistent and
cross referenced with the definition of ESD in section 3A.
12. The inclusion of the definition of ecologically sustainable development
after section 3 in the Fisheries Administration Act 1991 provides the
Australian Fisheries Management Authority (AFMA) with additional
guidance on how its decisions must attempt to balance the 'triple
bottom line' of economic, environmental and social outcomes.
Schedule 2: Amendments
Fisheries Administration Act 1991
Item 1: At the end of section 4
13. This item inserts a new subsection (3) in section 4 of the FAA.
14. This is a consequential amendment to the FAA, as the Bill creates a new
power to vary OCS fisheries arrangements. The new subsection ensures
that the FAA recognises that an OCS fisheries arrangement established
under Division 3 of Part 5 of the FMA can be varied. It also ensures
that any reference in the FAA to the arrangement recognises that the
arrangement has been varied.
Item 2: Subsection 91(5)
15. Item 2 amends subsection 91(5) of the FAA to insert the concept of
"part of a fishery" in relation to OCS fisheries arrangements. The new
subsection will ensure that the Commonwealth's management powers will
still apply, even if they relate to only part of a fishery. Currently,
the arrangements can relate to only an entire fishery.
16. The Bill inserts an option in the FMA for more than one law to be
applied in a fishery under a single OCS by identifying the part of the
fishery to which each law must apply. This option provides for greater
flexibility in establishing cooperative management arrangements and the
ability to rationalise existing OCS fisheries arrangements. In doing
so, the concept of "part of a fishery" is created and must be
recognised in the FAA.
Fisheries Management Act 1991
Item 3: At the end of section 4
17. This item adds a new subsection (8) in section 4 of the FMA. It
clarifies that when an OCS fisheries arrangement is varied, any
reference in the FMA to the arrangement recognises that the arrangement
has been varied.
Item 4: Subsection 45(1)
18. This item amends subsection 45(1) to allow for the concept of "part of
a fishery" to be included in the Joint Authority management
arrangements under Commonwealth law.
19. This is a consequential amendment as the Bill amends the FMA to allow
more than one law to be applied in a fishery under a single OCS by
identifying the part of the fishery which each law is to apply. In
doing so, the concept of "part of a fishery" is created and is new to
the FMA, so must be recognised. Multi-jurisdictional arrangements are
desirable, as they can provide for cohesive and coordinated management
of fisheries across a number of jurisdictions. This will work in
practice by defining the areas to which each law will apply, with these
areas most likely flanking, but not overlapping, each other.
Item 5: Subsection 60(2)
20. This item is consequential amendment to take into consideration the
inclusion of the concept of "part of a fishery" into the FMA.
21. This amendment will ensure that a Minister acting on behalf of the
Commonwealth Minister will still have the same powers of authority over
the fishery even if those powers relate to only part of a fishery under
Commonwealth law.
Item 6: Subsections 71(2) and (3)
22. Item 6 inserts two new options for OCS fisheries arrangements into the
FMA.
23. Currently under subsection 71(2) of the FMA, a fishery can only be
managed in accordance with the law of the Commonwealth or the law of
the State. The addition of subsection (c) allows for a fishery to be
managed in accordance with the law of the Commonwealth and the law of
the State.
24. This amendment allows for multi-jurisdictional arrangements which can
be more desirable in some circumstances as they can provide for the
cohesive and coordinated management of fisheries in which both the
Commonwealth and State have an interest.
25. Similarly, in the current legislation under subsection 71(3), an OCS
fisheries arrangement involving two or more States can only be managed
in accordance with the law of the Commonwealth. The amendment will
allow for a fishery involving two or more States to be managed in
accordance with the law of the Commonwealth and the law of one or more
particular States that are parties to the arrangements.
26. The inclusion of these two new OCS fisheries arrangements will provide
greater flexibility in establishing cooperative management arrangements
and the ability to rationalise existing OCS fisheries arrangements.
27. Item 6 also inserts subsections (4) and (5). Subsection (4) clarifies
that when an arrangement provides for the fishery to be managed by more
than one jurisdiction, the geographical areas for which each
jurisdiction has management responsibility must be identified. The
intention of this amendment is to ensure that laws do not overlap each
other thereby causing jurisdictional inconsistencies and potential
conflicts.
28. The addition of subsection (5) clarifies that when a fishery, or part
of a fishery, is to be managed in accordance with the law of a State,
the arrangement may, if required by the Commonwealth, provide for
giving effect to Australia's obligations under international law
(including international agreements).
29. This intention of this provision is to act as a "trigger". It draws
attention to the Commonwealth's existing international obligations that
need to be considered when creating or varying an OCS fisheries
arrangement and any corresponding measures the Commonwealth may need to
impose.
30. This provision is not imposing a new obligation on the States/NT, it is
merely intended ensure that any OCS fisheries arrangements or
variations which the Australian Government agrees are done so with
regard to the Commonwealth's international obligations. This is
because, while passing jurisdiction to the State for a particular
fishery, the Commonwealth may still have international responsibility
in relation to species contained in the area of the fishery.
31. For clarification purposes, the OCS fisheries arrangements referred to
in section 71 are not legislative instruments for the purposes of the
Legislative Instruments Act 2003 (the LIA). These arrangements apply
the law rather than determining it or altering its content. The purpose
of an arrangement is to state which law applies, rather than to
determine what the law is.
Item 7: Section 72
32. This item inserts a (1) into section 72 for the purposes of inserting a
new subsection 2.
Item 8: At the end of section 72
33. Item 8 inserts a new subsection into section 72.
34. The addition of subsection (2) clarifies that when a fishery, or part
of a fishery, is to be managed in accordance with the law of a State,
the arrangement may, if required by the Commonwealth, provide for
giving effect to Australia's obligations under international law
(including international agreements).
35. This intention of this provision is to act as a "trigger". It draws
attention to the Commonwealth's existing international obligations that
need to be considered when creating or varying an OCS fisheries
arrangement and any corresponding measures the Commonwealth may need to
impose.
36. This provision is not imposing a new obligation on the States/NT, it is
merely intended ensure that arrangements which the Australian
Government agrees are done so with regard to the Commonwealth's
international obligations. This is because, while passing jurisdiction
to the State for a particular fishery, the Commonwealth may still have
international responsibility in relation to species contained in the
area of the fishery.
Item 9: Subsection 74(1)
37. This item repeals existing subsection 74(1) and substitutes with a new
subsection which allows Commonwealth Ministers and State/NT Ministers,
rather than the Governor-General and State/NT Governors, to create OCS
fisheries arrangements.
38. Ministers currently approve all OCS arrangements before seeking further
approval from the Governor-General through Executive Council, with
State/NT Governor/s applying similar State/NT processes. This procedure
is essentially a formality and creates an additional administrative
step.
39. This amendment will provide a more flexible process for creating OCS
fisheries arrangements. Further, simplifying the administrative process
will help ensure effective management regimes that reflect contemporary
fisheries management issues are implemented in a timely and efficient
manner.
Item 10: At the end of section 74
40. This item inserts a new subsection in section 74 to clarify that the
instruments referred to in section74 are not legislative instruments.
The instrument referred to in section 74 is to allow the Commonwealth
Minister to issue the notice. It does not itself determine the law or
vary the content of the law, and does not affect any privileges,
interests, obligations or rights within the meaning of section 5 of the
LIA.
Item 11: After section 74
41. This item inserts a new subsection (section 74A) into section 74 of the
FMA. This new section will enable existing and future OCS fisheries
arrangements to be varied by the Commonwealth Minister and appropriate
State/NT Minister/s.
42. Currently, the FMA does not provide a legislative power to vary OCS
fisheries arrangements. To vary an arrangement, to correct any errors
or ambiguities or implement new policy, the original instrument must be
terminated and an entirely new agreement created. This process impacts
management plans, permits and other instruments established under an
OCS arrangements and is time and resource intensive. The addition of
section 74A will provide Commonwealth a broad, express power in the FMA
to vary existing and future OCS fisheries arrangements.
43. The ability to amend OCS is critical to ensure that fisheries
arrangements are current, accurate and in line with developments in
fisheries management. It will also provide opportunities to better
align jurisdictional arrangements with natural boundaries of fisheries
and ensure improved management arrangements are quickly implemented.
44. For clarification purposes, subsection 5 of section74A clarifies that
as arrangements under sections 61, 71 and 72 are not legislative
instruments for the purposes of the LIA, the instrument by which these
arrangements are varied are therefore not legislative instruments for
the purposes of the LIA. The instrument referred to in section 74A is
to allow the Minister to issue the notice. It does not itself
determine the law or vary the content of the law, and does not affect
any privileges, interests, obligations or rights within the meaning of
section 5 of the LIA.
Item 12: Subsection 75(1)
45. Item 12 amends subsection 75(1) to confer powers to terminate OCS
fisheries arrangements on the Commonwealth and State/NT Ministers as
opposed to the Governor-General and State/NT Governor/s. This amendment
is in line with the amendment in section 74.
46. For clarification purposes, a note has been added that as the OCS
fisheries arrangements under sections 61, 71 and 72 are not legislative
instruments for the purposes of the LIA, the instrument by which these
arrangements are terminated is not a legislative instrument for the
purposes of the LIA.
Item 13: Paragraph 75(3)(a)
47. This item removes the reference to the Governor-General and substitutes
it with "Commonwealth Minister" to ensure consistency with the
amendments in section 74 and the new section 74A.
Item 14: Paragraph 75(3)(b)
48. This item removes the reference to the Governor of the State and
substitutes it with "appropriate Minister of the State" to ensure
consistency with the amendments in section 74, section 74A and section
75(1)
Item 15: At the end of section 75
49. This item inserts a new subsection in section75 to clarify that the
instruments referred to in section 75 are not legislative instruments.
The instrument referred to in section 75 is to allow the Minister to
issue the notice. It does not itself determine the law or vary the
content of the law, and does not affect any privileges, interests,
obligations or rights within the meaning of section 5 of the LIA.
Item 16: Section 76
50. Item 16 amends section 76 to cause the existing paragraph to become
subsection (1) for the purposes of item 17.
Item 17: At the end of section 76
51. Item 17 adds a new subsection into section 76 of the FMA.
52. This amendment clarifies that when part of a fishery is to be managed
by the Commonwealth and it is identified to be partly in the coastal
waters of the State, then those coastal waters are to be included in
the Australian Fisheries Zone for the purposes of the FMA.
53. This is a consequential amendment to the FMA to recognise the new
concept of "part of a fishery."
Item 18: Section 77
54. Item 18 repeals the existing provision and replaces it with a provision
that includes the new concept of "part of a fishery." This ensures that
when part of a particular fishery is to be managed in accordance with
the law of the State, it is clear that the FMA does not apply to that
fishery, except in relation to foreign matters such as foreign boats,
persons on foreign boats and operations on and from foreign boats.
Item 19: Section 78
55. This item inserts a (1) into section 78 for the purposes of inserting a
new subsection into the paragraph.
Item 20: At the end of section 78
56. Item 20 inserts a new subsection in section78 of the FMA.
57. This item ensures that where the Commonwealth has management
responsibility for part of a fishery, AFMA has the same powers in
relation to the part of the fishery as it would have if the part of the
fishery were under the management of AFMA.
58. The amendment also ensures that the reference to the Minister in
section 18 and section 20, in relation to part of the fishery, are
references to the Joint Authority.
59. This is a consequential amendment to the FMA to recognise the new
concept of "part of a fishery."
Item 21: Section 163
60. Item 21 amends section163 by including reference to section74, 74A and
75. This amendment ensures that the new Ministerial powers to create,
vary and terminate OCS fisheries arrangements provided by the Bill
cannot be delegated to any of the listed persons in section163.
Item 22: Savings and application provision
61. Item 22 clarifies that existing OCS fisheries arrangements will
continue after the commencement of the Bill. This amendment also
clarifies that existing OCS fisheries arrangements will be able to be
varied or terminated in the same way as an OCS fisheries arrangement
made under the new amendments to the FMA.
62. This provision also deals with the staggered implementation of the new
OCS fisheries arrangements. At present, the states/NT have
complementary legislation that reflect the OCS fisheries arrangements
provisions in the FMA. If the new provisions were to be implemented
immediately it would cause inconsistencies between the Commonwealth and
State/NT legislation.
63. The intention of this provision is to permit the amendments in Schedule
2 to apply to a particular State/NT once that State/NT has enacted the
necessary legislation, rather than delay the application of the
amendments until all the States/NT have enacted their legislation.
64. This is considered to be a more efficient and effective means of
implementing the new OCS fisheries arrangements compared with delaying
the implementation of the Bill until all States/NT have amended their
legislation.
65. This provision will allow for the option of new cooperative fisheries
arrangements to be considered by the States as soon as they amend their
respective legislation.
66. For clarification purposes, subsections (6) and (7) clarify that the
declaration and notice referred to in the savings and application
provision are not legislative instruments for the purposes of the LIA.
67. The effect of the declaration is to be merely to allow the Minister to
issue the notice. It does not itself determine the law or vary the
content of the law, and does not affect any privileges, interests,
obligations or rights within the meaning of section 5 of the LIA.