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Fisheries Legislation Amendment (High Seas Fishing Activities and Other Matters) Bill 2004
Schedule 2 Miscellaneous amendments of the Fisheries Management Act 1991

Part 1 Logbooks for fisheries

1  Subsection 42(1)

Repeal the subsection, substitute:

             (1)  AFMA may, by a written determination, in relation to a particular fishery, provide for holders of fishing concessions in respect of that fishery to keep and maintain logbooks containing information in respect of their activities in that fishery.

          (1A)  Without limiting the generality of subsection (1), a determination by AFMA in respect of a particular fishery may cover matters including:

                     (a)  the form and content of logbooks for that fishery to be kept by the concession holder; and

                     (b)  the secure storage of such logbooks; and

                     (c)  the period for which retention of such logbooks is required; and

                     (d)  the furnishing to AFMA of such logbooks or of returns of information contained in them.

          (1B)  The content of the logbook kept by the holder of a fishing concession in respect of a particular fishery, and of any return of information from such a logbook, may extend to information in relation to:

                     (a)  the taking of fish under that fishing concession and the sale or disposal of such fish; or

                     (b)  the carrying, landing, transhipping or transporting of fish taken under that fishing concession; or

                     (c)  the receipt or processing of fish taken under that fishing concession and the sale or disposal of fish so received or processed; or

                     (d)  the course, or position at regular intervals, inside or outside the outer limits of the AFZ, of boats to which the fishing concession relates; or

                     (e)  any other matter relevant to the fishing concession in that fishery that is specified in the determination.

          (1C)  The obligations arising under this section from a determination made under subsection (1) in relation to a particular fishery override any provision to the contrary, in force immediately before the making of the determination:

                     (a)  in a plan of management for that fishery; or

                     (b)  in a condition to which a fishing concession in respect of that fishery is subject.

2  Subsection 42(2)

Omit “regulations made by virtue of”, substitute “determination made under”.

3  At the end of section 42

Add:

             (3)  A determination made under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Note:       The heading to section 42 is replaced by the heading “ Determinations relating to logbooks and the furnishing of returns ”.

4  Paragraph 95(1)(g)

Repeal the paragraph, substitute:

                     (g)  keep or purport to keep a logbook, or furnish or purport to furnish a logbook or return, relating to a matter specified in subsection 42(1B) knowing that the logbook so kept or the logbook or return so furnished contains a statement in respect of that matter that is false or misleading in a material particular.

5  Subsection 106(2A)

Omit all the words after paragraph (b), substitute:

in respect of a logbook kept or purported to be kept, or a logbook or return furnished or purported to be furnished, under section 42 of this Act, the court may order the forfeiture of all or any of the following:

                     (c)  if the logbook or return related, in whole or in part, to the taking, carrying, landing, transhipping, transporting or processing of fish—any boat employed in that activity;

                     (d)  if the logbook or return related, in whole or in part, to the taking or processing of fish—any net, trap or equipment on board a boat employed in that taking or processing for purposes related to that taking or processing;

                     (e)  if the logbook or return related, in whole or in part, to the taking, carrying, landing, transhipping, transporting or processing of fish—any fish on board a boat employed in that activity that were, or should have been, covered by the logbook or return;

                      (f)  if the logbook or return related, in whole or in part, to the taking, carrying, landing, transhipping, transporting, receipt or processing of fish—the proceeds of the sale of the fish that were, or should have been, covered by the logbook or return.

6  Subsection 167(1)

Repeal the subsection, substitute:

             (1)  AFMA must cause to be compiled, from logbooks or returns furnished under section 42 or from other sources, statistics in relation to matters mentioned in subsection 42(1B). 

          (1A)  AMFA may publish or make available, in any way it thinks fit, any of the statistics compiled under subsection (1).

7  Paragraph 168(2)(i)

Omit “regulations”, substitute “a determination”.

8  Saving provision

Despite the amendments of section 42 of the Fisheries Management Act 1991 made by this Schedule, any condition attaching to a fishing concession:

                     (a)  that was in force immediately before the making of a determination under section 42 as amended by this Act in respect of a particular fishery; and

                     (b)  that relates:

                              (i)  to the keeping of logbooks concerning fishing activities in that fishery undertaken before the making of that determination; or

                             (ii)  to the production of those logbooks to AFMA;

continues to apply, on and after the making of that determination, in relation to those fishing activities as if the amendments had not been made.



 

Part 2 Power to stop and detain vehicles and aircraft

9  Paragraph 84(1)(e)

Omit “with the consent of the owner or person in charge of the vehicle or aircraft or under a warrant issued under section 85”, substitute “, and subject to subsections (1AA) and (1AB)”.

10  After subsection 84(1)

Insert:

       (1AA)  Subject to subsection (1AB), the powers of an officer under paragraph (1)(e) in respect of any vehicle or aircraft must not be exercised without either:

                     (a)  the consent of the owner or person in charge of the vehicle or aircraft to the exercise of those powers; or

                     (b)  the obtaining of a warrant under section 85 or 86 authorising the exercise of those powers.

       (1AB)  If:

                     (a)  the owner or person in charge of a vehicle or aircraft referred to in subsection (1AA) refuses to consent to the exercise by an officer of powers under paragraph (1)(e); and

                     (b)  an officer seeking to exercise those powers believes, on reasonable grounds:

                              (i)  that there is in the vehicle or aircraft anything that may afford evidence of an offence against this Act; and

                             (ii)  that the delay that would occur if an application for a warrant were made (either in person or under section 86) would frustrate the effective execution of the warrant;

those powers may be exercised without a warrant but, if that is done, the officer must:

                     (c)  if it is practicable to do so, notify the owner or person in charge of a vehicle or aircraft that the officer will be exercising powers under paragraph (1)(e) without a warrant and that the reasons for the exercise of those powers may be requested; and

                     (d)  as soon as reasonably practicable, record the reasons for the exercise of those powers without a warrant; and

                     (e)  upon request by the owner or person in charge of the vehicle or aircraft—provide the record of those reasons to the person affected by the exercise of those powers.



 

Part 3 Charter fishing

11  Subsection 4(5)

Repeal the subsection, substitute:

             (5)  For the purposes of this Act, a charter boat, the person in charge of the boat and any other person fishing from the boat are taken to be engaged in recreational fishing.

12  Paragraph 10(3)(a)

After “recreational fishing” (first occurring), insert “(whether from a charter boat or otherwise) that is”.

13  Paragraph 10(3)(b)

After “recreational fishing” (first occurring), insert “(whether from a charter boat or otherwise) that is”.

14  Paragraph 15A(1)(b)

Repeal the paragraph, substitute:

                     (b)  takes the fish in the course of recreational fishing (whether from a charter boat or otherwise).

15  Paragraphs 32(4)(b) and (c)

Repeal the paragraphs, substitute:

                     (b)  for recreational fishing generally (whether from a charter boat or otherwise); or



 

Part 4 Amendment of the Treaty

16  Subsection 4(7)

After “the Treaty” insert “that alters the Treaty area that is within the AFZ or that alters a condition of a Treaty licence in a way that affects fishing by Treaty boats within the AFZ under a Treaty licence”.