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Fisheries Management Bill 1991



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House: House of Representatives Portfolio: Primary Industries and Energy Purpose To introduce a new regulatory regime for the management of Commonwealth fisheries which will include fisheries plans of management and statutory fishing rights. The Bill will also establish offences for the taking of certain marine species and ban driftnet fishing in the Australian Fishing Zone.

Background The gross value of Australian fisheries production in 1988-89 was $740 million and the quantity of Australian fish produced 162.1 kilo tonnes (kt). Statistics relating to the outlook for Australian fisheries are contained in Table 1 below.

Table 1: Outlook for Australian Production of Major Fisheries Products

Quantity- (Q) and Value- (V) of Australian production of major fisheries products (j) 1989-90 (p) 1990-91(f) Tuna (Q)- 4.5kt (V)$16m (Q)- 4.3kt (V)$64m Other Fin Fish (k) (Q)- 125kt (V)$210m (Q)- 114kt (V)- $200m Prawns (Q)- 17kt (V)- $155m (Q)- 22.5kt (V)- $184m Rock Lobster (Q)- 15.2kt (V)- $245m (Q)14.2kt (V)- $264m Abalone (Q)- 5.1kt (V)- $91m (Q)- 4.9kt (V)- $84m Scallops (Q)- 6.3kt (V)- $20m (Q)- 7.8kt (V)- $19m Oysters (Q)- 7.1kt (V)- $40m (Q)- 6kt (V)- $37m(Note:(j)=liveweight; (k)=excludes freshwater species and fish not for human consumption; (p)=preliminary; (f)=forecast)

In 1988-89, exports totalled 32.9 kt, valued at $565 million, with Japan the principal destination of the exports. Exports to Japan are estimated to total 19 060 tonnes in 1989-90 and be worth $278.6 million. Statistics relating to the outlook for exports are contained in Table II below.

Table II: Outlook for Exports of Major Australian Fisheries Products

Quantity (Q) and Value (V) of Australian Fisheries Products Exports 1989-90 (p) 1990-91 (f) Tuna (h) (Q)- 3.4kt (V)- $15m (Q)- 2.6kt (V)- $59m Other Fish (Q)- 13.4kt (V)- $104m (Q)- 14kt (V)- $100m Prawns- Headless, Whole and Meat (Q)- 11.3kt (V)- $162m (Q)- 15.4kt (V)- $222m Rock Lobster-Tails and Whole (Q)- 6.6kt (V)- $184m (Q)- 6.6kt (V)- $204m Abalone- Frozen and Canned (Q)- 3 (V)- $120m (Q)- 3kt (V)- $109m Scallops (j) (Q)- 0.9 (V)- $22 (Q)- 0.8kt (V)- $25m(Note:(h)=excludes transhipments; (j)=includes crumbed scallops; (p)=preliminary and (f)=forecast)

The Australian Fishing Zone (AFZ) covers an area of 8.94 million square kilometres. The AFZ covers waters up to 200 nautical miles off continental Australia, Tasmania and the Cocos, Macquarie, Christmas, Heard, McDonald, Norfolk, and Lord Howe Islands. The Australian fishing industry employs approximately 21 000 people in the catching sector and approximately 3 600 in processing.

The Commonwealth and States are responsible for managing fisheries within the AFZ in accordance with traditional jurisdictional arrangements (States to three nautical miles and Commonwealth from three to 200 nautical miles) or arrangements under the Offshore Constitutional Settlement (OCS). Basically, the OCS provides for Commonwealth/State agreements, the aims of which include to have individual fisheries managed under a single law, Commonwealth or State, and to reduce the number of licences a fisherperson has to hold. The Australian Fisheries Council co-ordinates fisheries policy between the Commonwealth and the States. The major fisheries for which the Commonwealth has exclusive management responsibility include the: Northern Prawn Fishery; Southern Shark Fishery; Torres Strait Rock Lobster Fishery; East Coast Tuna Longline Fishery; and South East Trawl Fishery. Fisheries for which the Commonwealth has responsibility are currently administered by the Australian Fisheries Service which is a part of the Department of Primary Industries and Energy.

In December 1989, the Minister for Primary Industries and Energy released a policy statement - New Directions for Commonwealth Fisheries Management in the 1990s. The Statement sets out management strategies and directions for fisheries under Commonwealth control. The stated reasons for the new management strategies and directions include that the Commonwealth has a responsibility to ensure that Australia's fisheries resources are conserved and used efficiently, and that some fish stocks are under serious threat and profits to fisherpersons are falling.

The Government's proposed fisheries management strategy has three principal objectives: * to ensure the conservation of fisheries resources and the environment which sustains those resources; * to maximise economic efficiency in the exploitation of those resources; and * to collect an appropriate charge from individual fishermen exploiting a community resource for private gain.

The principal management strategies and directions set out in the Statement included: * the establishment of a new statutory authority - the Australian Fisheries Management Authority (AFMA), which will carry out the Commonwealth's fisheries management responsibilities. The functions of the AFMA will include: developing and implementing management plans for commercially exploited Commonwealth fisheries; setting appropriate catch limits or effort constraints on the basis of biological and economic advice to meet the statutory objectives; collecting monies in exchange for access to fisheries; and ensuring that the interests of recreational fisherpersons are adequately considered in fisheries management of operational functions; * that the AFMA's operating budget will be met by the industry and the Commonwealth, with the burden of cost to be in proportion to the benefits received; * that access rights to develop fisheries will be allocated on an ongoing basis to fisherpersons who are entitled to operate in those fisheries (i.e. licences specific to individual fisheries will be the norm) and a formal register of those rights will be established and fisherpersons will be given documentation showing the rights they hold; * that exploratory and feasibility fishing will be open to foreign operators (note:subject to the proviso that the Australian community benefits from their fishing and once commercial exploitation is commenced Australian fisherpersons will be given preference over foreign operators); and * that the Government will provide unmatched research funds to the Fishing Industry Research and Development Trust Fund of 0.5% of the gross value of fisheries production, and the Government will match contributions from the fishing and aquaculture industries to the Trust Fund up to 0.25% of the gross value of fisheries production .

(Note:the statistics contained in the `Background' to this Digest are taken from ABAREs Agriculture and Resources Quarterly, Vol. 3, No. 1, March 1991 and the Government's policy statement - New Directions For Commonwealth Fisheries Management in the 1990s, December 1990)

Main Provisions The Bill will apply to Australian persons and boats inside and outside the AFZ (clause 6).

The Bill will not apply to waters declared by the Governor-General to be excepted waters (clause 9).

It will be an offence for a person to engage in driftnet fishing in the AFZ. The maximum penalty which may be imposed for a breach of this provision will be a fine of $50 000 (clause 12).

For the purpose of conserving the marine environment, regulations may be made prohibiting, or prescribing activities, or use of specified practices, by persons fishing in the AFZ and Australian boats and persons on those boats engaged in fishing outside the AFZ (clause 13).

It will be an offence for a person to take without a scientific permit in the AFZ, or a prescribed part of the AFZ: turtles, marine mammals, crocodiles, black cod, or prescribed fish. The maximum penalty which may be imposed for a breach of this provision will be a fine of $5 000. In addition, it will be an offence for a person on an Australian boat outside the AFZ to take a prescribed fish, or prescribed marine animal. The maximum penalty which may be imposed for a breach of this provision will be a fine of $5 000 (clause 14).

Part 3 of the Bill (clauses 15-41) deals with plans of management, statutory fishing rights and permits and licences. Clause 16 provides for plans of management. Basically, the AFMA may determine a plan of management for a fishery (a plan) where it has: given public notice of its intention; invited representations on its proposal; consulted with persons in commercial fishing that it considers appropriate; and considered any representations. A plan is to set out its objectives and the way they are to be achieved. In addition, a plan may provide for certain other matters, including: the amount of fish which can be taken; fishing concessions (a `fishing concession' is defined to be a statutory fishing right, fishing permit or foreign fishing licence); procedures for selecting persons to whom concessions are to be granted (i.e. by auction, tender or ballot); and the kind and quantity of equipment that may be used. Where a plan provides for statutory fishing rights, the plan is to: provide for registration of persons eligible for a grant; set out the conditions relevant for registration; and state any rights of review in relation to registration and the grant. Where a plan is in force, the AFMA is to perform and exercise its functions and powers in relation to the fishery in accordance with the plan.

Where the AFMA has determined a plan, it is to submit it to, and inform, the Minister of any representations received and consultations conducted prior to the making of the determination. The Minister is to accept the plan if it appears to the Minister that: adequate consideration was given to representations and adequate consultations were conducted; and the plan is consistent with the AFMA's corporate and annual operational plan. If the Minister does not accept a plan, it is to be referred back to the AFMA with reasons why it was not accepted. Where a plan has been referred back, the AFMA is to rectify it as soon as practicable and resubmit it to the Minister. The Minister may refer a plan back to the AFMA until it is acceptable (clause 17). Accepted determinations are to be gazetted and will be subject to disallowance by Parliament (clause 18). The AFMA may at any time amend or revoke a plan (clause 19).

Clauses 20-30 of the Bill deal with statutory fishing rights. A statutory fishing right is defined in clause 20 and includes: a right to a specified quantity, or proportion, of fish in a managed fishery; or a right to use a boat in a managed fishery for purposes specified in a plan. A fishing right may only authorise fishing by or from an Australian boat. The AFMA is to establish a system of statutory fishing rights where a plan provides for it, and give each person granted a fishing right a certificate evidencing the right. A fishing right will be subject to certain conditions, including: that it will cease to have effect if the plan is revoked or cancelled; and any conditions specified in the certificate. No compensation will be payable where a fishing right is cancelled, ceases to have effect, or ceases to apply to a fishery. The AFMA may vary or revoke a condition of a fishing right of its own initiative or at the request of the holder of a fishing right (clause 21). The AFMA may by public notice, declare that it intends to grant a fishing right for a specified managed fishery (clause 23). The AFMA is to issue a public notice specifying and describing certain matters, including: a description of the fishing activities that will be authorised by the fishing right; the way in which a grant is to be made; and the conditions that will have to be satisfied by persons applying for a grant (clause 24). Where a grant is made by auction, tender or ballot, the regulations are to prescribe the procedures to be followed for selecting the person who is to get the grant (clause 27). Where the allocation of a grant is by auction, the grant is to go to the highest bidder. Where allocation of a grant is by tender or ballot, the grant is to go to the highest ranked tender or highest ranked ballot participant. Where allocation is done other than auction, tender or ballot, the grant is to go to the person selected in accordance with the procedures set out in the plan (clause 28).

Clauses 31-33, 39, 89 and 92 provide for the grant, by the AFMA, of fishing, scientific, fish receiver and port permits, and foreign fishing and foreign master fishing licences. * A fishing permit will allow a person, or a person acting on their behalf, the use of a specified Australian boat for commercial fishing in a specified area of the AFZ, or a specified fishery. * A scientific permit will allow a person, or a person acting on their behalf, the use of a specified boat (including a foreign boat) for scientific research purposes in a specified area of the AFZ or a specified fishery. * A fish receiver permit will allow a person to receive fish from a person engaged in commercial fishing in a declared specified managed fishery. * A port permit will allow a person, or a person acting on that person's behalf, to bring a foreign fishing boat, in respect of which a foreign fishing licence is not in force, into an Australian port. * A foreign fishing licence will allow a person, or a person acting on their behalf, the use of a specified foreign boat for commercial fishing in a specified area of the AFZ or a specified fishery. * A foreign master fishing licence will allow a person to be in charge of a foreign boat used for commercial fishing in a specified area of the AFZ or a specified fishery.

Permits and licences will be subject to certain conditions, including such conditions as are specified in the permit or licence. No compensation will be payable where a permit or licence is cancelled, revoked, ceases to have effect or ceases to apply to a fishery.

Clause 36 gives effect at Australian law to the Treaty on Fisheries between the Governments of Certain Pacific Island States and the Government of the United States of America, a copy of which is contained in the Schedule to the Bill. Clause 36 largely mirrors section 9E of the Fisheries Act 1952.

Clauses 37 and 38 of the Bill deal with the suspension and cancellation of fishing concessions. The AFMA may suspend the operation of a concession in certain circumstances, including: if any fee, levy, charge or other money relating to the concession is not paid on time; and where the AFMA has reasonable grounds for believing that a condition of a concession has been breached. The AFMA may cancel a concession in certain circumstances, including where a concession holder is convicted of an offence under this Bill, or any other Commonwealth, New Zealand, Papua New Guinea, or State or Territory law relating to fishing.

The regulations may provide for holders of concessions to record and furnish returns with information on certain matters, including the taking, selling, carrying, transhipment, and processing of fish (clause 41).

Part 4 of the Bill (clauses 42-55) deals with the registration of statutory fishing rights. The AFMA is to keep a Register of Statutory Fishing Rights (the Register) (clause 42). The AFMA is to register each fishing right that it, or a Joint Authority managing a fishery, grants, by entering in the Register certain information, including: the name of the holder of the fishing right; a description of the fishing right; and the conditions of the fishing right (clause 43). Basically, the holder of a fishing right may deal (e.g. create or assign an interest) in the right. The holder may not do so if the Register shows that the rights are vested in another person, or approval for a transfer of the right has not been obtained or a licence condition prevents it (clause 46). The AFMA or a Joint Authority may only refuse a transfer of ownership in a fishing right if it would be against the requirements of a plan or a condition of the fishing right (clause 47). It will be an offence for a person wilfully to cause or concur in making a false Register entry, or present as evidence documentation falsely purporting to come from the Register. The maximum penalty which may be imposed for a breach of this provision will be a term of imprisonment of two years (clause 55).

Part 5 of the Bill (clauses 56-80) largely mirrors Part IVA of the Fisheries Act 1952 that provides for the management of fisheries under joint authorities of the Commonwealth and one or more States or the Northern Territory, or by the Commonwealth only, or by one State or the Northern Territory only. Clauses 93-106 deal with offences against the provisions of the Bill. The more interesting offences include: removing a fish from a net, trap or other fishing equipment unless a person is the owner or has permission from the owner to do so (clause 94); and using a foreign boat for private fishing, or for processing or carrying fish that have been taken in the course of private fishing with the use of that boat or another boat (clause 98). The maximum penalty which may be imposed for such offences is a $5 000 fine.

Clauses 107-111 provide the machinery for the collection of the levy imposed by the Fishing Levy Bill 1991. Clause 108 provides that the due date for payment of the levy will be as prescribed by the regulations. Where the levy has not been paid on time, an additional levy, calculated at the rate of 20% per annum of the amount unpaid will be imposed (clause 110).

Clauses 112-116 provide the machinery for the collection of the levy imposed by the Foreign Fishing Licences Levy Bill 1991. Clause 113 provides that the AFMA may make arrangements with persons who are or will become liable to pay the levy: as to the time payment is due or the way in which payment is to be made. Clause 114 provides that the due date for payment of the levy will be in accordance with arrangements made under clause 113 (see above) or 30 days after the grant of

the foreign fishing licence. Where the levy has not been paid on time, an additional levy, calculated at the rate of 10% per month of the amount unpaid will be imposed (clause 114).

Clauses 117-121 provide the machinery for the collection of the levy imposed by the Statutory Fishing Rights Charge Bill 1991. Clause 118 provides that the due date for payment of the levy will be as prescribed by the regulations, or where the regulations do not so provide, at the time of the grant of the statutory fishing right. Where the levy has not been paid on time, an additional levy, calculated at the rate of 20% per annum of the amount unpaid will be imposed (clause 120).

Part 8 of the Bill (clauses 122-160) deals with the establishment, constitution, functions and powers of the Statutory Fishing Rights Allocation Review Panel (the Panel). The Panel will be established by clause 122. The Panel is to consist of a Principal Member, appointed by the Minister, and such other members as are appointed by the Minister following nomination by a selection committee (note: a maximum number may be prescribed) (clauses 123 and 124). The Minister is only to appoint a person to be the Principal Member if satisfied they have high level experience in industry, commerce, public administration or in the practice of a profession (clause 125). The constitution of a Panel for a review is to comprise the Principal Member and two members selected by the Principal Member (clause 127). Clauses 137-139 deal with the selection committee. The function of a selection committee will be to nominate, at the Minister's request, a person or persons for appointment to the Panel.

The function of the Panel will be to review decisions of the AFMA or a Joint Authority about whom should receive a grant (other than a grant made by way of auction, tender or ballot) of a statutory fishing right (clause 140). At a Panel hearing, a party to the proceeding may appear in person or be represented (clause 146). The Panel is to take oral evidence in public, except where the Panel is satisfied that it is in the public interest not to do so (clause 147). For the purposes of reviewing a decision, the Panel may exercise all the powers and discretions that are conferred by this Bill on the person or persons who made the decision. The Panel may: affirm, vary, or set aside and substitute a new decision (148). Where the Panel is satisfied it is in the public interest that: any evidence given before the Panel; any information given to the Panel; or the contents of any document produced to the Panel should not be published, or should not be published except in a particular manner and to particular persons, it may give a direction to that effect. A breach of a Panel direction will constitute an offence and may attract a maximum penalty of six months imprisonment (clause 154). An appeal will lie to the Federal Court on a question of law arising from any decision of the Panel (clause 158).

Clause 163 provides for review by the Administrative Appeals Tribunal of certain AFMA decisions, including: a decision to vary or revoke a condition of a statutory fishing right, or specify a condition or a further condition to which the fishing right will subject; a decision in relation to the grant of a fishing or scientific permit; and a decision to suspend or cancel a fishing concession.

The Governor-General may make regulations, including: prescribing penalties not exceeding $1000 for offences against the regulations; for the remission or refund of levy; the marking of boats engaged in commercial fishing in the AFZ and of fishing equipment used for taking fish; and the sale or disposal of unclaimed fishing equipment found in the AFZ (clause 166).

Bills Digest Service 17 June 1991 Parliamentary Research Service For further information, if required, contact the Economics and Commerce Group on 06 2772462.

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

Commonwealth of Australia 1991

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Published by the Department of the Parliamentary Library, 1991.