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Wednesday, 19 October 1983
Page: 1901

Mr KERIN (Minister for Primary Industry)(11.10) —I move:

That the Bill be now read a second time.

This Bill implements the fisheries aspects of the Torres Strait Treaty. In conjunction with clauses 4 and 14 of the Torres Strait Treaty (Miscellaneous Amendments) Bill, it replaces the provisions of the Fisheries Act 1952 and the Continental Shelf (Living Natural Resources) Act 1968, in the protected zone and , for particular fisheries outside but near the protected zone with provisions that will enable the Commonwealth to manage the fisheries in waters under Australian jurisdiction in accordance with the Treaty.

The Queensland and Papua New Guinea parliaments will also be enacting legislation for the same purpose. Considerable work has been done to ensure that the three Bills will be in harmony with each other. Subject only to progress toward commencement of the similar Acts in Queensland and Papua New Guinea, ratification of the Treaty and commencement of the new legislation will occur simultaneously.

Many interests will need to be taken into account before I, and the Queensland and Papua New Guinea Ministers responsible for fisheries matters, exercise the powers provided in these Bills to deal with a variety of fishery management issues. Officials and scientists of the three governments will need to consult each other and Commonwealth and Queensland officials will need to consult traditional inhabitants and commercial fishermen, about the advice they offer to Ministers concerning application of measures which the Bills will authorise. These consultations have already started. Australian and Papua New Guinea scientists met in July 1981 and February 1983 to discuss research into the fish stocks which will provide a basis for future management decisions. Officials have consulted commercial fishermen about managing the fisheries in the protected zone pending ratification of the Treaty and commencement of the new legislative provisions. These consultations will continue and intensify as that commencement approaches and thereafter.

Consultations are also being held with the people of the Torres Strait and adjacent coastal areas, particularly as they will have special rights to the fisheries resources of the protected zone. Officials have visited the area to discuss the Treaty and last week explained the Bill to representatives of the Torres Strait people whom the Treaty defines as traditional inhabitants. These people will have a significant voice in the deliberations of the Torres Strait Joint Advisory Council established under the Treaty, including fisheries matters . The Bill provides for the Minister and the Protected Zone Joint Authority, established under Part V, to consult the Australian traditional inhabitants appointed to the Joint Advisory Council about fishery matters under the Bill affecting the interests of the Australian traditional inhabitants.

As a domestic Australian measure, beyond the requirements of the Treaty, the Bill makes special provision, to which I will refer later in more detail, for commercial fishing operations by Australian traditional inhabitants. It proposes a minimum of control over such operations, subject only to the requirements of the Treaty and of effective management and conservation of the fish stocks. As well, it enshrines the right expressed in the Treaty of traditional inhabitants of both countries to undertake traditional fishing in the protected zone for their own and their dependants' consumption, with a minimum of regulation or restriction.

I have circulated a detailed explanatory memorandum dealing with the provisions of the Bill so I will not take the time of the House with an extensive summary. However, I believe that honourable members would wish me to deal at this time with the Bill's chief principles, especially insofar as they give effect to the Treaty.

In the defined area of Australian jurisdiction, the Bill applies to all fishing except recreational fishing with use of Australian boats by people who are not traditional inhabitants, which will be regulated under Queensland law. The area of Australian jurisdiction comprises the protected zone, south of the fisheries jurisdiction line in the Treaty. The area does not include Queensland coastal waters except where the Commonwealth and Queensland agree that a particular fishery is to be managed under Commonwealth law from the coast to the limits of the Australian jurisdiction.

To give effect to the Treaty definition of 'protected zone commercial fisheries ', the Bill provides that, in relation to a particular fishery in a subsidiary arrangement under Article 22 of the Treaty, Australia or Papua New Guinea may agree to include areas outside but near the protected zone in the area of Australian or Papua New Guinea jurisdiction, as the case may be, in relation to that fishery. It is proposed that this would happen where, for the good management of the fish stock inside the protected zone, Australia and Papua New Guinea agree that it is necessary to apply the measures in the subsidiary arrangement to the stock in agreed areas outside but near that zone.

To stimulate commercial fishing enterprise among Australian traditional inhabitants, a special category of commercial fishing has been created exclusively for them. Only Australian traditional inhabitants or other people employed to provide them with technical advice or training will be allowed to engage in what are to be called the community fisheries. Traditional inhabitants under obligations to act in accordance with the instructions or principals not themselves entitled to undertake community fishing will be regarded as commercial fishermen in the normal way. This will contribute significantly to protection of the traditional inhabitants from outside exploitation in their fishing activities.

Community fishermen will not be required to hold master fishermen's licences. The Minister may declare that, for reasons of fishery management, community fishing boats are to be licensed in a particular fishery but unless he does so licences will not be required. A traditional inhabitant will be able voluntarily to take out for his boat a licence that Australia can nominate to Papua New Guinea to be endorsed for a fishery in waters under Papua New Guinea jurisdiction which is subject to an arrangement under Article 22 of the Treaty. There will be no charge for the endorsement and probably only a nominal fee for the Australian licence. While the Minister may prohibit such matters as taking fish undersized, out of season or by particular methods in the course of community fishing, he may also publish notices reserving particular fisheries for community fishermen, including activities on shore relating to such fisheries.

The provisions of the Bill relating to community fishing manifest the Government's intention to give effect to the spirit of Article 11 of the Treaty beyond the specific requirements of that Article. The concept of community fishing is an additional benefit for Australian traditional inhabitants, enabling them to undertake commercial fishing in the protected zone under conditions of considerable freedom from regulation.

The Treaty definition of 'traditional inhabitant' requires that they be resident in the protected zone or the adjacent coastal area and maintain traditional customary associations with the protected zone. Both Australia and Papua New Guinea will have to agree on what is declared to be the adjacent coastal area for each country. As honourable members will know, there are communities of Torres Strait Islanders living on the mainland. It is proposed that the declaration of the adjacent coastal area should include the people of Bamaga, on the north-western hinterland of Cape York Peninsula. Torres Strait Islanders will not be able to undertake traditional or community fishing in the protected zone from other ports, for example, Cooktown, Cairns or Townsville. The Treaty provides for the privilege of traditional fishing to be enjoyed by residents of only the protected zone and the adjacent coastal area and it would not be proper to extend that concept to areas that are manifestly not adjacent to the protected zone. Islanders normally resident in places beyond the protected zone or the adjacent coastal area will be able to undertake traditional or community fishing if they return there to resume long term residence.

One of the most complex provisions of the Treaty is Article 23, which requires Australia and Papua New Guinea, whenever they agree to manage a commercial fishery jointly in the protected zone, to determine the annual total allowable catch for the fishery and then to share the catch in accordance with the provisions of that Article. Clause 14 of the Bill provides, in conjunction with appropriate administrative measures, for enforcing the total allowable catch to fulfil Australia's quota obligations.

The maximum penalty for knowingly providing false or misleading catch information in a quota fishery will be $5,000 or two years gaol, or both. For continuing to fish after the fishery is closed for the remainder of the year, the maximum penalty will be $5,000. These penalties reflect the seriousness with which the Government regards attempts to evade Treaty responsibilities.

The Bill makes special provision for collection of information of the catches of community fishermen in quota fisheries from processing plants or processing boats, so as to relieve community fishermen of the burden of acquiring radio equipment for reporting purposes. In any event, the quota requirements of the Treaty are to be phased in from the fifth to the tenth year after ratification.

The licensing provisions of the Bill require only the master of a commercial fishing boat to be licensed and do not extend that requirement to the master of a community fishing boat. Boats are to be licensed to take, process and carry their own catch; a separate licence is required for boats used to process and carry the catches of other boats. While the Bill provides for licensing of foreign boats, that is, boats other than Australian or Papua New Guinean, it reflects the requirement of Article 27 of the Treaty that no foreign boat will be licensed to fish in the protected zone without the specific agreement of the responsible Ministers in Australia and Papua New Guinea. There is little prospect of a foreign boat coming within the Government's present fishery licensing policy to allow it to fish in the area of Australian jurisdiction. The current policy of the Papua New Guinea Government is similar to ours in that it encourages local residents to occupy protected zone commercial fisheries in Papua New Guinea jurisdiction.

The Bill provides for Australia to endorse a Papua New Guinea licence for a boat which the Papua New Guinea Government nominates to fish in an area of Australian jurisdiction. This is a reciprocal measure that will happen only in relation to fisheries which are the subject of an arrangement under Article 22 of the Treaty. In accordance with paragraph 26 (2) of the Treaty the Bill ensures that no fee is payable for an endorsement.

Part V of the Bill, which is not specifically required to give effect to the Treaty, provides for the establishment of a Protected Zone Joint Authority comprising the Commonwealth and Queensland Ministers responsible for fisheries matters in the protected zone. The Joint Authority will have the power to manage particular fisheries, such as those covered by arrangements with Papua Guinea under Article 22 of the Treaty. The establishment of the Joint Authority provides for the Commonwealth and Queensland to jointly participate in the management of the major fisheries in the zone. I also point out that the provisions of Part V of the Bill are subject to any decision that the Government may take about the future of the off-shore constitutional settlement.

Because the Bill does not require individual employee fishermen to be licensed, it cannot provide the useful sanction of cancellation of the licence following conviction for a major offence. The Bill therefore gives courts a discretionary power to order persons convicted of breach of a condition of a boat licence or of a prohibition in a notice to stay off commercial fishing boats in the protected zone for a specified period or incur maximum penalty of $2,000 or six months' imprisonment. The Minister will have a discretionary power to suspend a boat licence or a master-fisherman's licence if the holder is charged with breach of a ministerial prohibition or a condition of the licence and to cancel such a licence if the holder is convicted under any Commonwealth, State, or Papua New Guinea fisheries law. Paragraph 28 (13) of the Treaty requires cancellations following conviction for a breach of Papua New Guinea law.

Article 28 of the Treaty contains unique enforcement provisions. Each country will prosecute persons of its nationality authorised by both countries to operate in fisheries governed by an Article 22 arrangement and who commit offences in relation to such fisheries in waters under the other country's jurisdiction. Each country will prosecute persons of the other nationality who breach its exclusive fisheries jurisdiction by either unauthorised fishing in any fishery or by contravening management measures in Article 22 fisheries for which the person or his boat is not licensed by both countries.

The Bill therefore provides for Australian offenders against Papua New Guinea law to be dealt with by Australian courts in the circumstances specified in Article 28. The Bill requires the Minister's consent for the prosecution of persons charged with offences in the area of Australian jurisdiction with the use of a Papua New Guinea boat. The Bill does not confer on the Administrative Appeals Tribunal jurisdiction over decisions made under it. The whole question of Commonwealth review powers over actions by State officials performing duties authorised under Commonwealth law is a difficult one and the Government intends to discuss it with the State at an appropriate time. Until the matter is resolved, the review powers of the Commonwealth Ombudsman and of the Federal Court of Australia under the Administrative Decisions (Judicial Review) Act will in any event apply to decisions of Commonwealth and Queensland officials pursuant to the Bill. After consultation with the States, the Government will consider whether to amend the Torres Strait Fisheries Act, as it will then be, in relation to proposed jurisdiction of the Administrative Appeals Tribunal.

Those provisions of the Bill with which I have not dealt in detail follow the precedents of the Fisheries Act and relate to the powers necessary to manage the fisheries and to enforce the Bill in the manner required by both the Treaty and the standards of justice in Australia. The explanatory memorandum deals comprehensively with all the provisions of the Bill. I commend the Bill to honourable members.

Debate (on motion by Mr McVeigh) adjourned.