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Fisheries (Validation of Plans of Management) Bill 2004



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Parliament of Australia

Department of Parliamentary Services

Parliamentary Library BILLS DIGEST

Information, analysis and advice for the Parliament

29 November 2004, no. 51, 2004-05, ISSN 1328-8091

Fisheries (Validation of Plans of Management) Bill 2004

Angus Martyn Law and Bills Digest Section

Contents

Purpose....................................................................................................................................... 2

Background ................................................................................................................................ 2

Main Provisions ......................................................................................................................... 3

Endnotes..................................................................................................................................... 3

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2 Fisheries (Validation of Plans of Management) Bill 2004

Fisheries (Validation of Plans of Management) Bill 2004

Date Introduced: 17 November 2004

House: Senate

Portfolio: Agriculture, Fisheries and Forestry

Commencement: On Royal Assent.

Purpose

To retrospectively validate fisheries management plans made, amended or revoked under the Fisheries Management Act 1991 and things done for the purposes of such plans.

Background

The Fisheries Management Act 1991 (the Act) provides for plans of management to be made for Commonwealth fisheries so as to regulate the operation of the fishery in question. The relevant Commonwealth authority is the Australian Fisheries Management Authority (AFMA). The process for making, amending and revoking such plans are set out in the Act.

In his second reading speech, Senator Ian Campbell stated that

a legal audit was undertaken last year which identified that there is a potential argument that there may have been an inconsistency in the process by which plans of management were determined, amended or revoked before July 2003 by the Managing Director or by the Acting Managing Director of AFMA….The Australian Government is of the view that all current plans of management are valid. However, it is important for industry that these plans are placed beyond risk and are certain. The consequences of a successful challenge could be significant. It would undermine many of the existing arrangements and rules underpinning the management of Commonwealth fisheries. This would create uncertainty and instability within the industry.1

Whilst there is nothing specific in the second reading speech or explanatory memorandum about the nature of the potential legal problem, one possibility is the fact that management plans were made, amended or revoked by the AFMA managing director or acting director in a number of different ways. For example, copies of plans show that some were made by the managing director ‘acting on behalf’ of the AFMA board, whereas others are expressed to have been made by the managing director ‘acting as delegate’ of the Board.

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Fisheries (Validation of Plans of Management) Bill 2004 3

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Whilst it is understood that AFMA’s legal advice is that these variations do not affect the validity of the plans, the Bill is designed put the issue entirely beyond doubt.

Main Provisions

New section 3 provides that any determination, amendment or revocation of management plans by the AFMA managing director or acting director under section 17 of the Act is to be taken as always having legal affect. Thus if there is a legal problem as discussed above, new section 3 retrospectively validates the relevant plans. New section 3 also provides that ‘anything done under or for the purposes of such a plan’ is likewise deemed to be have always been legally valid.

Endnotes

1 Senate Debates, 17 November, p. 8.

 Copyright Commonwealth of Australia 2004

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This paper has been prepared to support the work of the Australian Parliament using information available at the time of production. The views expressed do not reflect an official position of the Information and Research Service, nor do they constitute professional legal opinion.

Members, Senators and Parliamentary staff can obtain further information from the Information and Research Services on (02) 6277 2764.