Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Fisheries Legislation Amendment Bill 2007

Schedule 2 Fisheries Management Act 1991

   

1  Subsection 4(1) (definition of observer )

Repeal the definition.

2  After paragraph 84(1)(ga)

Insert:

                   (gb)  seize all or any of the following that are forfeited to the Commonwealth under section 106AA or that the officer has reasonable grounds to believe are forfeited under that section:

                              (i)  a net, trap or other equipment;

                             (ii)  fish; and

                    (gc)  seize any fish that are the property of the Commonwealth because of the operation of section 106AC or that the officer has reasonable grounds to believe are the property of the Commonwealth because of the operation of that section; and

                   (gd)  seize anything:

                              (i)  that is on, in or attached to a boat and that forms part of the boat; and

                             (ii)  that is the property of the Commonwealth because of the operation of section 106AD or that the officer has reasonable grounds to believe is the property of the Commonwealth because of the operation of that section; and

3  Subsection 84(1A) (at the end of the note)

Add “, (gb), (gc) or (gd)”.

4  Paragraph 100B(1)(d)

Omit “, and the person is reckless as to that fact”.

5  Before subsection 100B(2)

Insert:

          (1A)  Strict liability applies to paragraph (1)(d).

Note:          For strict liability , see section 6.1 of the Criminal Code .

6  Paragraph 101AA(1)(d)

Omit “, and the person is reckless as to that fact”.

7  Before subsection 101AA(2)

Insert:

          (1A)  Strict liability applies to paragraph (1)(d).

Note:          For strict liability , see section 6.1 of the Criminal Code .

8  Paragraphs 106(1)(a) to (c)

Repeal the paragraphs, substitute:

                     (a)  if a boat was used in the commission of the offence—that boat; or

                     (b)  a net, trap or equipment that was on board that boat at the time of the commission of the offence, or that was used in the commission of the offence; or

                     (c)  fish on board that boat at that time or in relation to which the offence was committed; or

                     (d)  the proceeds of the sale of fish of the kind referred to in paragraph (c).

Note:       The heading to section 106 is altered by adding at the end “ of things used in certain offences ”.

9  Subsection 106(3)

Repeal the subsection.

10  At the end of Subdivision A of Division 6 of Part 6

Add:

106AAA   Forfeiture of additional things on forfeited boats

             (1)  This section applies if:

                     (a)  a court orders a boat to be forfeited under section 106 because:

                              (i)  it was used in the commission of an offence (the relevant offence ) against section 13, subsection 95(5) or section 105C or 105F; or

                             (ii)  it is a boat in relation to which an offence (also referred to as the relevant offence ) against section 102, 103, 104, 105A, 105B or 105E was committed; and

                     (b)  at the time the court makes the order, there are nets, traps, equipment or fish (the additional things ) on the boat that the court cannot order to be forfeited under section 106.

Forfeiture within 2 years

             (2)  If the order for the boat to be forfeited is made within 2 years after the commission of the relevant offence, the court may order the forfeiture of the additional things.

Things owned by the person who owned the boat

             (3)  If the additional things are owned by the person who owned the boat immediately before the relevant offence was committed, the court may order the forfeiture of the additional things.

             (4)  For the purposes of subsection (3), the additional things are taken, unless the contrary is proved, to be owned by the person who owned the boat immediately before the relevant offence was committed.

Things owned by persons who commit offences

             (5)  If the additional things are owned:

                     (a)  by the person who committed the relevant offence; or

                     (b)  by a person who committed an offence against:

                              (i)  section 6 of the Crimes Act 1914 ; or

                             (ii)  an ancillary offence (within the meaning of the Criminal Code );

                            that relates to the relevant offence;

the court may order the forfeiture of the additional things.

             (6)  For the purposes of subsection (5), the additional things are taken, unless the contrary is proved, to be owned:

                     (a)  for the purposes of paragraph (5)(a)—by the person who committed the relevant offence; and

                     (b)  for the purposes of paragraph (5)(b)—by a person who committed an offence against:

                              (i)  section 6 of the Crimes Act 1914 ; or

                             (ii)  an ancillary offence (within the meaning of the Criminal Code );

                            that relates to the relevant offence.

             (7)  To avoid doubt, nothing in subsection (2), (3) or (5) limits the operation of another subsection of this section.

106AAB   Forfeited things become the property of the Commonwealth

                   Any boat or other property (including fish) ordered by a court to be forfeited under this Subdivision becomes the property of the Commonwealth and must be dealt with or disposed of in accordance with the directions of the Minister.

106AAC   Rights and interests of the Commonwealth not limited

                   To avoid doubt, a provision of this Subdivision giving the Commonwealth rights or interests in relation to property does not limit any other right or interest the Commonwealth has or acquires otherwise than under this Subdivision.

11  Subdivision B of Division 6 of Part 6 (heading)

Repeal the heading, substitute:

Subdivision B Automatic forfeiture of things

12  Section 106A

Before “The”, insert “(1)”.

13  At the end of section 106A (after the note)

Add:

             (2)  If:

                     (a)  a boat is forfeited to the Commonwealth under subsection (1) because it was used in the commission of an offence; and

                     (b)  the boat is seized under paragraph 84(1)(ga);

any nets, traps or equipment on the boat at the time it is seized are taken, unless the contrary is proved:

                     (c)  for the purposes of subparagraph (1)(c)(i)—to have been on the boat at the time of the offence; and

                     (d)  for the purposes of subparagraph (1)(c)(ii)—to have been used in the commission of an offence against subsection 95(2) or section 99, 100, 100A, 100B, 101, 101A, 101AA or 101B.

             (3)  If:

                     (a)  a boat is forfeited to the Commonwealth under subsection (1) because it was used in the commission of an offence; and

                     (b)  the boat is seized under paragraph 84(1)(ga);

any fish on the boat at the time it is seized are taken, unless the contrary is proved:

                     (c)  for the purposes of subparagraph (1)(d)(i)—to have been on the boat at the time of the offence; and

                     (d)  for the purposes of subparagraph (1)(d)(ii)—to have been involved in the commission of an offence against subsection 95(2) or section 99, 100, 100A, 100B, 101, 101A, 101AA or 101B.

14  After section 106A

Insert:

106AA   Forfeiture of additional things on seized boats

             (1)  This section applies if:

                     (a)  a boat is forfeited to the Commonwealth under section 106A because it was used in the commission of an offence (the relevant offence ); and

                     (b)  the boat is seized under paragraph 84(1)(ga); and

                     (c)  at the time the boat is seized, there are nets, traps, equipment or fish (the additional things ) on the boat that have not been forfeited under section 106A.

Seizure within 2 years

             (2)  If the boat is seized within 2 years after it is forfeited, the additional things are forfeited to the Commonwealth at the time the boat is seized.

Things owned by the person who owned the boat

             (3)  If the additional things are owned by the person who owned the boat immediately before the relevant offence was committed, the additional things are forfeited to the Commonwealth at the time the boat is seized.

             (4)  For the purposes of subsection (3), the additional things are taken, unless the contrary is proved, to be owned by the person who owned the boat immediately before the relevant offence was committed.

Things owned by persons who commit offences

             (5)  If the additional things are owned:

                     (a)  by the person who committed the relevant offence; or

                     (b)  by a person who committed an offence against:

                              (i)  section 6 of the Crimes Act 1914 ; or

                             (ii)  an ancillary offence (within the meaning of the Criminal Code );

                            that relates to the relevant offence;

the additional things are forfeited to the Commonwealth at the time the boat is seized.

             (6)  For the purposes of subsection (5), the additional things are taken, unless the contrary is proved, to be owned:

                     (a)  for the purposes of paragraph (5)(a)—by the person who committed the relevant offence; and

                     (b)  for the purposes of paragraph (5)(b)—by a person who committed an offence against:

                              (i)  section 6 of the Crimes Act 1914 ; or

                             (ii)  an ancillary offence (within the meaning of the Criminal Code );

                            that relates to the relevant offence.

             (7)  To avoid doubt, nothing in subsection (2), (3) or (5) limits the operation of another subsection of this section.

106AB   Rights and interests of the Commonwealth not limited

                   To avoid doubt, a provision of this Subdivision giving the Commonwealth rights or interests in relation to property does not limit any other right or interest the Commonwealth has or acquires otherwise than under this Subdivision.

15  After Subdivision B of Division 6 of Part 6

Insert:

Subdivision BA Automatic ownership of things

106AC   Fish taken with Commonwealth property

                   If:

                     (a)  a thing is forfeited to the Commonwealth under section 106 or 106A; and

                     (b)  the thing is used for, or in the taking of, fish:

                              (i)  after it is forfeited; and

                             (ii)  without the written permission of the Minister for such use;

the fish are the property of the Commonwealth.

106AD   Things on, in or attached to boats

                   At any time during which a boat is the property of the Commonwealth because:

                     (a)  the court has ordered the forfeiture of the boat under section 106; or

                     (b)  the boat is forfeited under section 106A;

anything on, in or attached to the boat that forms part of the boat is also the property of the Commonwealth.

106AE   Rights and interests of the Commonwealth not limited

                   To avoid doubt, a provision of this Subdivision giving the Commonwealth rights or interests in relation to property does not limit any other right or interest the Commonwealth has or acquires otherwise than under this Subdivision.

16  Subdivision C of Division 3 of Part 6 (heading)

Repeal the heading, substitute:

Subdivision C Dealing with things seized

17  Section 106B

Repeal the section, substitute:

106B   Application of this Subdivision

                   This Subdivision sets out rules about the following:

                     (a)  a thing that an officer seizes under paragraph 84(1)(ga) or (gb):

                              (i)  because the thing is forfeited under Subdivision B; or

                             (ii)  because the officer has reasonable grounds to believe the thing is forfeited under Subdivision B;

                     (b)  a thing that an officer seizes under paragraph 84(1)(gc) or (gd):

                              (i)  because the thing is the property of the Commonwealth because of the operation of Subdivision BA; or

                             (ii)  because the officer has reasonable grounds to believe the thing is the property of the Commonwealth because of the operation of Subdivision BA.

18  Subsection 106C(1)

Repeal the subsection, substitute:

Giving notice

             (1)  The officer must give written notice of the seizure of the thing:

                     (a)  if the thing is, or was on, a boat, or was used in connection with a boat:

                              (i)  to the person who was the master of the boat immediately before the seizure; or

                             (ii)  to the person whom the officer has reasonable grounds to believe was the master of the boat immediately before the seizure; or

                     (b)  in a case not covered by paragraph (a):

                              (i)  to the owner of the thing; or

                             (ii)  to the person who had possession, custody or control of the thing immediately before it was seized.

          (1A)  However, if the officer cannot conveniently give the notice to the person in person, the officer may give written notice of the seizure of the thing by fixing the notice to a prominent part of the thing, unless the thing is a fish.

19  At the end of Subdivision C of Division 6 of Part 6

Add:

106HA   Evidence

             (1)  For the purposes of proceedings taken:

                     (a)  to recover a thing forfeited under Subdivision B; or

                     (b)  for a declaration that a thing seized under paragraph 84(1)(ga) or (gb) is not forfeited under Subdivision B;

if a person has been convicted of an offence mentioned in paragraph 106A(1)(a) or (b), the person is taken, unless the contrary is proved, to have committed the offence.

             (2)  Subsection (1) does not apply in relation to a conviction:

                     (a)  in respect of which a review or appeal (however described) has been instituted but not finally determined; or

                     (b)  that has been quashed or set aside; or

                     (c)  in respect of which a pardon has been given.

20  After paragraph 168(2)(ha)

Insert:

                   (hb)  subject to section 8A, providing for the placement of persons as observers on board boats used for commercial fishing; and

21  At the end of subsection 168(2)

Add:

            ; and (u)  providing (in addition to the collection of information in the exercise or performance of its other powers and functions under this Act) for the collection by AFMA of information relating to:

                              (i)  possible breaches of the laws of Australia or of a foreign country; or

                             (ii)  the control and protection of Australia’s borders; or

                            (iii)  the administration and management of fisheries or marine environments; or

                            (iv)  research or monitoring conducted, or proposed to be conducted, into fisheries or marine environments; and

                     (v)  providing for the disclosure by AFMA of information, including personal information, relating to:

                              (i)  possible breaches of the laws of Australia or of a foreign country; or

                             (ii)  the control and protection of Australia’s borders; or

                            (iii)  the administration and management of fisheries or marine environments; or

                            (iv)  research or monitoring conducted, or proposed to be conducted, into fisheries or marine environments.