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Monday, 14 October 1991
Page: 1836

Consideration resumed from 10 October.

Consideration of Senate's amendments.

Senate's amendments--

No. 1-- After clause 2, page 2, insert the following clause:

Objectives

"2A.(1) The following objectives must be pursued by the Minister in the administration of this Act and by AFMA in the performance of its functions:

(a) implementing efficient and cost-effective fisheries management on behalf of the Commonwealth; and

(b) ensuring that the exploitation of fisheries resources and the carrying on of any related activities are conducted in a manner consistent with the principles of ecologically sustainable development, in particular the need to have regard to the impact of fishing activities on non-target species and the marine environment; and

(c) maximising economic efficiency in the exploitation of fisheries resources; and

(d) ensuring accountability to the fishing industry and to the Australian community in AFMA's management of fisheries resources; and

(e) achieving government targets in relation to the recovery of the costs of AFMA.

"(2) In addition to the objectives mentioned in subsection (1), or in section 76 of this Act, the Minister, AFMA and Joint Authorities are to have regard to the objectives of:

(a) ensuring, through proper conservation and management measures, that the living resources of the AFZ are not endangered by over-exploitation; and

(b) achieving the optimum utilisation of the living resources of the AFZ;

but must ensure, as far as practicable, that measures adopted in pursuit of those objectives must not be inconsistent with the preservation, conservation and protection of all species of whales.".

No. 2-- Clause 3, page 3, subclause (1), definition of "charter boat", line 9, omit "private", substitute "recreational".

No. 3-- Clause 3, page 3, subclause (1), definition of "commercial fishing", lines 14 and 15, omit the definition.

No. 4-- Clause 3, page 3, subclause (1), after definition of "continental shelf", insert the following definition:

"`dealing' includes a transmission by operation of law;".

No. 5-- Clause 3, page 3, subclause (1), definition of "fish", lines 20 and 21, omit the definition, substitute the following definition:

"`fish' includes all species of bony fish, sharks, rays, crustaceans, molluscs and other marine organisms, but does not include marine mammals or marine reptiles;".

No. 6-- Clause 3, page 3, subclause (1), definition of "fishery", line 24, omit the definition, substitute the following definition:

"`fishery' means a class of activities by way of fishing, including activities identified by reference to all or any of the following:

(a) a species or type of fish;

(b) a description of fish by reference to sex or any other characteristic;

(c) an area of waters or of seabed;

(d) a method of fishing;

(e) a class of boats;

(f) a class of persons;

(g) a purpose of activities;".

No. 7-- Clause 3, page 3, subclause (1), Note to definition of "fishery", omit the Note.

No. 8-- Clause 3, page 4, subclause (1), after definition of "member", insert the following definition:

"`modification' includes addition, omission and substitution;".

No. 9-- Clause 3, page 4, subclause (1), definition of "private fishing", line 37, omit the definition.

No. 10-- Clause 3, page 5, subclause (1), after definition of "take", insert the following definition:

"`temporary order' means an order made under section 41A;".

No. 11-- Clause 3, pages 5 and 6, subclause (4), line 41 (page 5) to line 8 (page 6), omit the subclause.

No. 12-- Clause 3, page 6, after subclause (4), insert the following subclause:

"(4A) For the purposes of this Act:

(a) in relation to a fishery or a managed fishery that is identified by reference to an area, a reference to activities in the fishery or in the managed fishery includes activities in that area; and

(b) in relation to a fishery or a managed fishery that is identified by reference to any matter other than an area, a reference to activities in the fishery or in the managed fishery includes activities in relation to the fishery.".

No. 13-- Clause 6, page 7, paragraph (3)(b), line 17, before "does", insert "subject to subsection (2),".

No. 14-- After clause 6, page 7, insert the following clause:

Application of Act to areas outside the AFZ

"6A.(1) The regulations may provide that, in relation to specified areas outside the AFZ, this Act applies, to:

(a) Australian citizens; and

(b) bodies corporate that are incorporated in Australia or carry on activities mainly in Australia; and

(c) Australian boats; and

(d) persons on board Australian boats.

"(2) The Act so applies subject to any exceptions or modifications specified in the regulations.

"(3) When a provision of this Act applies in relation to such an area, then, subject to the regulations, references in that provision to the AFZ are to be read as references to that area.".

No. 15-- Clause 8, pages 7 and 8, line 35 (page 7) to line 14 (page 8), omit the clause, substitute the following clause:

Operation of certain State and Territory laws

"8.(1) Except as provided by subsections (2) and (3), this Act is not intended to exclude or limit the concurrent operation of any law of a State or Territory.

"(2) Subject to subsection (3), the Parliament intends that this Act is to apply to the exclusion of any law of a State or Territory relating to fishing so far as that law would, but for this Act, apply to:

(a) activities in the AFZ; or

(b) activities in the coastal waters of a State or Territory in respect of which a fishery to which an arrangement mentioned in section 12K of the Fisheries Act 1952, or section 74 of this Act, relates; or

(c) the landing in the State or Territory of fish taken under a statutory fishing right or fishing permit by requiring such landing to be done under a licence, permit or similar instrument or upon payment of a fee or charge.

"(3) This Act does not apply to:

(a) recreational fishing carried on in the AFZ or outside the AFZ by the use of an Australian boat, other than recreational fishing that is prohibited or regulated by a plan of management; or

(b) recreational fishing carried on by the use of an Australian boat in the coastal waters of a State or Territory, being coastal waters in respect of which an arrangement mentioned in section 12K of the Fisheries Act 1952, or section 74 of this Act, relates, other than recreational fishing that is prohibited or regulated by a plan of management; or

(c) activities in the AFZ to which, because of section 75, this Act does not apply.".

No. 16-- Part 2, page 9, heading to Part, line 1, omit "CONSERVATION OF", substitute "FISHING AND".

No. 17-- Clause 11, page 9, lines 2 to 13, omit the clause.

No. 18-- Clause 12, page 9, after subclause (1), insert the following subclauses:

"(1A) An Australian citizen must not engage in driftnet fishing activities outside the AFZ.

Penalty: $50,000.

"(1B) A body corporate that is incorporated in Australia or carries on activities mainly in Australia must not engage in driftnet fishing activities outside the AFZ.

Penalty: $250,000.

"(1C) A person must not, outside the AFZ, engage in driftnet fishing activities from an Australian boat.

Penalty: $50,000.".

No. 19-- Clause 12, page 9, subclause (2), definition of "driftnet", line 20, after "length", insert ", or such shorter length as is prescribed,".

No. 20-- Clause 13, page 10, paragraph (2)(c), line 7, omit the paragraph, substitute the following paragraph:

"(c) the taking, and treatment of, by-catches; and".

No. 21-- Clause 14, page 10, paragraph (1)(a), lines 12 to 16, omit the paragraph, substitute the following paragraph:

"(a) in the AFZ, take black cod (Epinephelus daemelii); or".

No. 22-- Clause 14, page 10, subclause (2), line 21, omit "or other prescribed marine animal".

No. 23-- Clause 14, page 10, subclause (3), line 25, omit "or other animal".

No. 24-- Clause 14, page 10, subclause (3), line 26, omit "or other animal".

No. 25-- Clause 15, page 10, subclause (1), lines 30 to 33, omit the subclause, substitute the following subclause:

"15.(1) In performing its functions under this Part, AFMA must pursue its objectives and, in addition, act in accordance with its corporate plan and its current annual operational plan.".

No. 26-- Clause 16, page 11, subclause (1), line 4, omit "commercial".

No. 27-- Clause 16, page 11, subclause (2), lines 7 to 16, omit the subclause, substitute the following subclause:

"(2) Before determining a plan of management for a fishery, AFMA must prepare a draft of the plan and, by public notice:

(a) state that it intends to determine a plan of management in respect of the fishery; and

(b) invite interested persons to make representations in connection with the draft plan by a date specified in the notice, not being less than one month after the date of publication of the notice in the Gazette; and

(c) specify:

(i) an address from which copies of the draft plan may be obtained; and

(ii) an address to which representations may be forwarded.".

No. 28-- Clause 16, page 11, subclause (3), line 18, omit "proposed", substitute "draft".

No. 29-- Clause 16, page 11, subclause (5), at end of subclause, add the following word and paragraph:

"; and

(c) performance criteria against which the measures taken may be assessed".

No. 30-- Clause 16, page 12, subclause (6), at end of subclause, add the following word and paragraphs:

"; and

(f) specify the circumstances in which a statutory fishing right may authorise fishing by or from a foreign boat; and

(g) impose obligations on the holders of fishing concessions; and

(h) prohibit or regulate recreational fishing in the fishery; and

(i) prohibit or regulate fishing for scientific research purposes in the fishery".

No. 31-- Clause 19, page 13, subclause (3), lines 38 and 39, omit the subclause, substitute the following subclause:

"(3) AFMA may revoke a plan of management.".

No. 32-- Clause 19, page 14, subclause (4), lines 1 and 2, omit the subclause.

No. 33-- Clause 19, page 14, subclause (6), line 9, after "management", insert "and the revocation of a plan of management".

No. 34-- Clause 20, page 14, subclause (2), lines 25 and 26, omit the subclause, substitute the following subclause:

"(2) A fishing right may authorise fishing:

(a) by or from an Australian boat; and

(b) if the relevant plan of management so provides--by or from a foreign boat.".

No. 35-- Clause 21, page 14, subclause (3), before paragraph (3)(a), insert the following paragraph:

"(aa) the holder of the fishing right must comply with any obligations imposed on the holder by the relevant plan of management;".

No. 36-- Clause 31, page 19, subclause (1), line 38, omit "commercial".

No. 37-- Clause 31, page 20, subclause (4), after paragraph (a), insert the following paragraph:

"(ab) for recreational fishing generally; or".

No. 38-- Clause 31, page 20, subclause (5), before paragraph (5)(a), insert the following paragraph:

"(aa) if the fishing permit authorises fishing in a specified managed fishery--the holder of the permit must comply with any obligations imposed on the holder by the relevant plan of management;".

No. 39-- Clause 31, page 20, paragraph (5)(a), line 16, omit "commercial".

No. 40-- Clause 33, page 22, subclause (4), before paragraph (4)(a), insert the following paragraph:

"(aa) if the licence authorises commercial fishing in a specified managed fishery--the holder of the licence must comply with any obligations imposed on the holder by the relevant plan of management;".

No. 41-- Clause 39, page 27, subclause (3), before paragraph (3)(a), insert the following paragraph:

"(aa) if the licence authorises a person to be in charge of a foreign boat that is being used for commercial fishing in a specified managed fishery--the holder of the licence must comply with any obligations imposed on the holder by the relevant plan of management;".

No. 42-- After clause 41, page 28, insert the following clause:

Temporary orders

"41A.(1) The purpose of this section is to enable quick action to be taken:

(a) to deal with emergencies; or

(b) to correct errors or anomalies in a plan of management.

"(2) If AFMA is satisfied that:

(a) it is necessary to take action for the purpose of this section; and

(b) the action contemplated is consistent with AFMA's objectives; and

(c) no other action is appropriate;

AFMA may make an order, consistent with this Act and the regulations, with respect to:

(d) any matter directly or indirectly connected with fishing:

(i) in a managed fishery; or

(ii) in the AFZ but not in a managed fishery; or

(e) any other matter relating to a managed fishery, being a matter that may be provided for by a plan of management; or

(f) any incidental matter.

"(3) AFMA may at any time make an order cancelling a previous order.

"(4) An order ceases to have effect:

(a) on a day specified in the order; or

(b) on being cancelled by another order; or

(c) at the end of 3 months after the order is made;

whichever is soonest.

"(5) Subject to subsections (6) and (7), AFMA must not make an order the same in substance as a previous order within 6 months after the previous order has ceased to have effect.

"(6) While an order is in force, AFMA may make one, and only one, further order the same in substance as the first-mentioned order.

"(7) Nothing in subsections (5) and (6) prevents AFMA from making a further order the same in substance as a previous order to deal with a different emergency.

"(8) AFMA may, by writing under its common seal, delegate its powers under this section to the Managing Director of AFMA, but to no other person.

"(9) If an order is inconsistent with a provision of:

(a) a plan of management; or

(b) a fishing concession, scientific permit, foreign master fishing licence or fish receiver permit;

the order overrides the provision and, to that extent, the provision has no effect.

"(10) When an order ceases to have effect, any provision overridden by the order revives, subject to this Act, unless the regulations provide otherwise.

"(11) An order is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.".

No. 43-- Clause 44, page 29, subclause (1), line 18, omit "or assigning", substitute ", assigning, transferring, transmitting or extinguishing".

No. 44-- Clause 48, page 30, subclause (1), line 32, after "effect", insert "(other than because of subsection 41A(9))".

No. 45-- Clause 48, page 31, at end of clause, add the following subclauses:

"(3) Where:

(a) AFMA does anything under subsection (1) or (2) in relation to a fishing right; and

(b) a person other than the holder of the fishing right has an interest in the fishing right, being an interest in relation to which a dealing has been registered under section 44;

AFMA must give the person written notification of what it has done.

"(4) Where, because of subsection 41A(9), a provision of a fishing right registered under this Part has no effect, AFMA must make a notation in the Register to that effect.

"(5) Where AFMA has made a notation in the Register under subsection (4) and the relevant provision of the fishing right revives, AFMA must make a notation in the Register to that effect.".

No. 46-- Clause 63, page 34, subclause (1), line 29, omit "any other person", substitute "an officer or employee of the Commonwealth or an authority of the Commonwealth, or of a State or authority of a State".

No. 47-- Clause 76, page 40, paragraph (3)(b), lines 32 to 34, omit the paragraph, substitute the following paragraph:

"(b) ensuring that the exploitation of fisheries resources and the carrying on of any related activities are conducted in a manner consistent with the principles of ecologically sustainable development, in particular the need to have regard to the impact of fishing activities on non-target species and the marine environment; and".

No. 48-- Clause 78, page 41, after paragraph (a), insert the following paragraph:

"(ab) any reference in that provision to a temporary order is a reference to a temporary order made by the Joint Authority; and".

No. 49-- Clause 82, page 44, paragraph (1)(a), line 17, omit "commercial".

No. 50-- Clause 82, page 44, paragraph (1)(b), line 29, after "concession", insert "or a provision of a temporary order".

No. 51-- Clause 89, page 52, paragraph (4)(b), line 24, omit "fishing".

No. 52-- Clause 89, page 52, paragraph (4)(c), line 26, omit "fishing".

No. 53-- Clause 89, page 52, paragraph (4)(d), line 27, omit "fishing".

No. 54-- Clause 93, page 55, paragraph (1)(d), line 10, after "licence", insert "or a provision of a temporary order".

No. 55-- Clause 93, page 55, paragraph (1)(e), line 14, after "permit", insert "or a provision of a temporary order".

No. 56-- Clause 93, page 55, paragraph (1)(f), line 17, after "permit", insert "or a provision of a temporary order".

No. 57-- Clause 97, page 56, lines 20 to 26, omit the clause, substitute the following clause:

Using foreign boat for recreational fishing

"97. A person must not, in the AFZ:

(a) use a foreign boat for recreational fishing; or

(b) use a foreign boat for processing or carrying fish that have been taken in the course of recreational fishing with the use of that boat or another boat.

Penalty: $5,000.".

No. 58-- Clause 161, page 76, line 30, at end of clause, add "other than powers and functions under sections 17 and 19".

No. 59-- Clause 164, page 81, subclause (2), at end of subclause, add the following word and paragraph:

"; or (k) that, at a time or during a period specified in the certificate, notice of a temporary order was given in the manner specified in the certificate".

No. 60-- Clause 166, page 83, paragraph (2)(e), before subparagraph (i), insert the following subparagraph:

"(ia) draft plans of management being made available; and".

No. 61-- Clause 166, page 83, paragraph (2)(i), lines 35 to 40, omit the paragraph.