Save Search

Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Fisheries Legislation Amendment Bill (No. 2) 2010

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

 

 

 

 

2010

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

SENATE

 

 

 

 

FISHERIES LEGISLATION AMENDMENT BILL (No. 2) 2010

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

 

Amendments and New Clauses to be Moved on Behalf of the Government

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



AMENDMENTS TO FISHERIES LEGISLATION AMENDMENT BILL (No. 2) 2010

 

 

OUTLINE

Government amendments to the Fisheries Legislation Amendment Bill (No. 2) 2010 (the Bill) will amend the Fisheries Management Act 1991 . The measures seek to strengthen Australia’s ability to prevent, deter and eliminate illegal fishing in Australian waters.

 

The amendments will:

1.       provide strengthened arrangements for Australia and France to cooperatively enforce fisheries laws in the Southern Ocean in respect of their exclusive economic zones; and

2.       clarify the defence that currently enables masters of foreign fishing vessels to plead the right to pass through the Australian fishing zone to enter Australian state and Northern Territory coastal waters.

 

The amendments to the Bill deliver measures that address illegal, unreported and unregulated fishing in Australian coastal waters and the exclusive economic zone around Australia’s Southern Ocean territories.

 

Australia / France cooperation in the Southern Ocean

The amendments will give effect to the Agreement on Cooperative Enforcement of Fisheries Laws between the Government of Australia and the Government of the French Republic in the Maritime Areas Adjacent to the French Southern and Antarctic Territories, Heard Island and the McDonald Islands Paris,

8 January 2007 . This Agreement provides for strengthened arrangements for Australia and France to cooperate in the use of their resources to enforce fisheries laws in their respective maritime zones. For Australia this includes Heard Island and the McDonald Islands, and for France, the Kerguelen Islands, Crozet Islands, Saint-Paul Island and Amsterdam Island. The Agreement allows authorised French vessels, under the control of an Australian officer to patrol Australia’s maritime zone around Heard Island and the McDonald Islands, and vice versa. An Australian officer will undertake the enforcement of Australian fisheries laws onboard French vessels with the assistance of French officers. Likewise French officers will undertake the enforcement of French fisheries laws onboard Australian vessels. Enforcement activities will include boarding, inspection, hot pursuit, apprehension, and the seizure and investigation of illegal fishing vessels.

 

The Agreement complements the Treaty between the Government of Australia and the Government of the French Republic on cooperation in the maritime areas adjacent to the French Southern and Antarctic Territories (TAAF), Heard Island and the McDonald Islands , Canberra, 24 November 2003. The Treaty was ratified and entered into force on 1 February 2005. The Agreement and the Treaty are intended to create a complementary framework for cooperation between Australia and France to combat illegal fishing activity within Australian and French waters in the Southern Ocean.

 

Deterrence of Illegal Fishing

Australia maintains a strong position against illegal fishing. These amendments will strengthen Australia’s ability to deter and prosecute foreign fishers traversing the Australian fishing zone to fish illegally within Australian coastal waters, and thus help protect Australia’s sustainably managed fisheries.

 

Amendments are required to address a technical legal issue in the Fisheries Management Act 1991 which was identified by the Commonwealth Department of Public Prosecutions in an alleged illegal foreign fishing case. In this case, the charges were not laid against the fisher because it was possible that he could utilise a defence in the Fisheries Management Act 1991 despite clearly stating his intention to transit the Australian fishing zone to coastal waters to undertake illegal fishing in those waters.

 

Without rectification, foreign fishers could potentially change their methods of operations making it difficult for Australian authorities to prosecute alleged illegal fishing operators. The deterrence value against illegal foreign fishing would therefore be diminished.

 

Amendments will define that a point outside the Australian fishing zone must be on the seaward side and not the landward side, which would then exclude state and Northern Territory coastal waters from the defence for traversing the Australian fishing zone.

 

 

FINANCIAL IMPACT STATEMENT

The amendments have been assessed as having an insignificant financial impact on the Australian Government or affected parties.



GOVERNMENT AMENDMENTS TO THE FISHERIES LEGISLATION AMENDMENT BILL (No. 2) 2010

 

NOTES ON AMENDMENTS

 

Amendment (1)

This amendment inserts a new part heading for the existing provisions on co-management and other regulatory reforms into Schedule 3 of the bill.

 

Amendment (2)

This amendment inserts a new part heading and three further items regarding illegal transiting of the Australian fishing zone into Schedule 3 of the bill. Each item inserts an offence for a foreign fishing vessel to be traversing through the Australian fishing zone to coastal waters.

 

Item 12 repeals paragraph 101(1)(d) and substitutes a new defence for being in the Australian fishing zone; that the boat must be travelling by the shortest practical route, with gear stowed, from a point beyond the outer limits of the Australian fishing zone to another such point.

 

Item 13 repeals paragraph 101A(4)(d) and substitutes a new defence for being in the Australian fishing zone; that the boat must be travelling by the shortest practical route, with gear stowed, from a point beyond the outer limits of the Australian fishing zone to another such point.

 

Item 14 repeals paragraph 101AA(2)(d) and substitutes a new defence for being in the Australian fishing zone; that the boat must be travelling by the shortest practical route, with gear stowed, from a point beyond the outer limits of the Australian fishing zone to another such point.

 

Amendment (3)

This amendment inserts a new part heading and six further items regarding the domestic implementation of the Cooperative Enforcement Agreement between Australia and France into Schedule 3 of the bill.

 

Item 15 inserts into subsection 4(1) a definition of ‘cooperative enforcement’ by reference to new section 84B. Section 84B provides that ‘cooperative enforcement’ is conducted in accordance with the Cooperative Enforcement Agreement and within the area of cooperation.

 

Item 16 inserts into subsection 4(1) a definition of ‘Cooperative Enforcement Agreement’ by reference to new section 84B which provides that the Cooperative Enforcement Agreement is the Agreement on Cooperative Enforcement of Fisheries Laws between the Government of Australia and the Government of the French Republic in the Maritime Areas Adjacent to the French Southern and Antarctic Territories, Heard Island and the McDonald Islands that was done at Paris on 8 January 2007.

 



Item 17 inserts into subsection 4(1) a definition of ‘international officer’ by reference to new section 84B. An international officer is a person authorised by a competent authority of the Government of the French Republic to conduct cooperative enforcement.

 

Item 18 inserts a new section 84B on the Cooperative Enforcement Agreement. The new section sets out what agreements encompass the Cooperative Enforcement Agreement for the purpose of implementing Australia’s international obligations with France to jointly tackle illegal fishing in their respective maritime zones in the Southern Ocean.

 

Subsection 84B(1) states the purpose of the section to implement the Cooperative Enforcement Agreement.

 

Subsection 84B(2) authorises and provides powers of fisheries officers (outlined in this Division) to international officers and that, during cooperative enforcement activities, international officers will be taken to have exercised the powers as an officer.

 

Subsection 84B(3) provides that regulations may prescribe conditions for the exercise of powers by an international officer.

 

Subsection 84B(4) ensures that international officers will be required to identify themselves when boarding and conducting enforcement activities on vessels. This approach is consistent with the Enforcement Agreement, which provides that officers from both France and Australia will carry identification. If an international officer seizes a person’s catch, equipment or boat they must provide written notice to the person of the grounds on which the action was taken.



Subsection 84B(5) ensures that where an international officer exercises a power under Part 6 of the Fisheries Management Act 1991 , this action is valid and the officer is not liable to any civil or criminal proceedings in respect of anything done or omitted in good faith when conducting activities outlined in subsection (3).

 

Subsection 84B(6) provides that an officer may perform powers granted by the Government of the French Republic in the conduct of cooperative enforcement activities.

 

Subsection 84B(7) provides an officer is not liable to any civil or criminal proceedings in respect of anything done or omitted in good faith when conducting activities outlined in subsection (6).

 

Subsection 84B(8) provides definitions for ‘cooperative enforcement’, ‘Cooperative Enforcement Agreement’ and ‘international officer’.

 

‘Cooperative enforcement’ is defined in the Cooperative Enforcement Agreement and means ‘fisheries enforcement activities such as the boarding, inspection, hot pursuit, apprehension, seizure and investigation of fishing vessels that are believed to have violated applicable fisheries laws, undertaken by one Party in cooperation with the other Party’. Cooperative enforcement is to be conducted in accordance with the Cooperative Enforcement Agreement and within the area of cooperation, as defined in the Cooperative Enforcement Agreement.

 

‘International officer’ is defined as a person who is authorised by the Government of the French Republic to conduct cooperative enforcement activities.

 

Item 19 omits the words ‘but not within the territorial sea of another country’ from

subsection 87(1) to permit a hot pursuit commenced in Australia’s maritime zones to continue through the territorial sea of another State, subject to Item 18 (the Cooperative Enforcement Agreement provisions). For example, this will permit Australian officers to continue a hot pursuit commenced in Australia’s maritime zones through France’s territorial sea, and vice versa, in accordance with the Cooperative Enforcement Agreement.

 

Item 20 inserts a new subsection 87(1) (1AA) to ensure that the powers relating to hot pursuit are not exercised at a place outside the Australian fishing zone in the territorial sea of another State unless authorised by a written agreement, which may be evidenced in a treaty such as the Cooperative Enforcement Agreement. Such agreement could also be obtained in writing on an ad hoc basis in relation to specific cases of hot pursuit, as and when required.