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This is a Bill, not an Act. For current law, see the Acts databases.
2002-2003
The Parliament of
the
Commonwealth of
Australia
THE
SENATE
Presented and read a first
time
Fisheries
Legislation Amendment (Compliance and Deterrence Measures and Other Matters)
Bill 2003
No. ,
2003
(Agriculture, Fisheries and
Forestry)
A Bill for an Act to amend
legislation about fisheries, and for related purposes
Contents
Fisheries Administration Act
1991 3
Fisheries Management Act
1991 3
A Bill for an Act to amend legislation about fisheries,
and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Fisheries Legislation Amendment
(Compliance and Deterrence Measures and Other Matters) Act 2003.
(1) Each provision of this Act specified in column 1 of the table
commences, or is taken to have commenced, in accordance with column 2 of the
table. Any other statement in column 2 has effect according to its
terms.
|
Commencement information |
||
|---|---|---|
|
Column 1 |
Column 2 |
Column 3 |
|
Provision(s) |
Commencement |
Date/Details |
|
1. Sections 1 to 3 and anything in this Act not elsewhere covered by
this table |
The day on which this Act receives the Royal Assent. |
|
|
2. Schedule 1 |
A day or days to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6
months beginning on the day on which this Act receives the Royal Assent, they
commence on the first day after the end of that period. |
|
Note: This table relates only to the provisions of this Act
as originally passed by the Parliament and assented to. It will not be expanded
to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part
of this Act. Information in this column may be added to or edited in any
published version of this Act.
Each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its
terms.
Fisheries Administration
Act 1991
1 Subsection 67(1)
Omit “of a management advisory committee is”, substitute
“and other members of a management advisory committee
are”.
2 Subsection 67(1)
Omit “the Chairperson is”, substitute “they
are”.
3 Subsection 67(2)
Omit “of a management advisory committee is”, substitute
“and other members of a management advisory committee
are”.
4 Subsection 67(4)
After “the Chairperson”, insert “or other
member”.
5 Paragraphs 67(5)(a) and (b)
Repeal the paragraphs, substitute:
(a) member of any committee established under section 54 other than a
management advisory committee.
6 Saving provision
Despite the amendment of the Fisheries Administration Act 1991 made
by item 4 of this Schedule, any determination by the Remuneration Tribunal
of the rate of travelling allowance payable to a member of a management advisory
committee that is in force immediately before the day of commencement of that
amendment continues in force on and after that day in relation to that member
until a new rate is prescribed.
7 At the end of section 22
Add:
(7) The holder of a fishing right must, at the time of giving the written
notice referred to in subsection (6) or as soon as practicable after that
time, return the original certificate evidencing the fishing right to
AFMA.
8 After subsection 32(7)
Insert:
(7A) If:
(a) AFMA has granted a fishing permit under this section in respect of a
particular fishery; and
(b) that fishery is a fishery to which subsection 41A(1) applies;
and
(c) AFMA subsequently, under section 41A, gives a direction in
respect of that fishery to the effect that fishing is not to be engaged in in
any part of the fishery, or in a particular area of the fishery, during a period
or periods specified in the direction;
it is a condition of the permit that the holder of the permit comply with
the terms of the direction.
9 Subsection 32(8)
After “subsection (5)”, insert “or
(7A)”.
10 After subsection 32(9)
Insert:
(9A) The holder of a permit must, at the time of giving the written notice
referred to in subsection (9) or as soon as practicable after that time,
return the original permit to AFMA.
11 After subsection 33(5)
Insert:
(5A) If:
(a) AFMA has granted a scientific permit under this section in respect of
a particular fishery; and
(b) that fishery is a fishery to which subsection 41A(1) applies;
and
(c) AFMA subsequently, under section 41A, gives a direction in
respect of that fishery to the effect that fishing is not to be engaged in in
any part of the fishery, or in a particular area of the fishery, during a period
or periods specified in the direction;
it is a condition of the permit that the holder of the permit comply with
the terms of the direction.
12 Paragraph 33(6)(b)
After “is subject”, insert “(not being a condition
mentioned in subsection (5A))”.
13 After subsection 33(7)
Insert:
(7A) The holder of a scientific permit must, at the time of giving the
written notice referred to in subsection (7) or as soon as practicable
after that time, return the original permit to AFMA.
14 After subsection 34(6)
Insert:
(6A) If:
(a) AFMA has granted a foreign fishing licence under this section in
respect of a particular fishery; and
(b) that fishery is a fishery to which subsection 41A(1) applies;
and
(c) AFMA subsequently, under section 41A, gives a direction in
respect of that fishery to the effect that fishing is not to be engaged in in
any part of the fishery, or in a particular area of the fishery, during a period
or periods specified in the direction;
it is a condition of the licence that the holder of the licence comply with
the terms of the direction.
15 Subsection 34(9)
After “subsection (4)”, insert “or
(6A)”.
16 After subsection 34(10)
Insert:
(10A) The holder of a licence must, at the time of giving the written
notice referred to in subsection (10) or as soon as practicable after that
time, return the original licence to AFMA.
17 After subsection 40(4)
Insert:
(4A) If:
(a) AFMA has granted a foreign master fishing licence under this section
in respect of a particular fishery; and
(b) that fishery is a fishery to which subsection 41A(1) applies;
and
(c) AFMA subsequently, under section 41A, gives a direction in
respect of that fishery to the effect that fishing is not to be engaged in in
any part of the fishery, or in a particular area of the fishery, during a period
or periods specified in the direction;
it is a condition of the licence that the holder of the licence comply with
the terms of the direction.
18 Subsection 40(5)
After “subsection (3)”, insert “or
(4A)”.
19 After subsection 40(6)
Insert:
(6A) The holder of a licence must, at the time of giving the written
notice referred to in subsection (6) or as soon as practicable after that
time, return the original licence to AFMA.
20 After section 41
Insert:
(1) This section applies to a fishery in respect of which:
(a) there is no plan of management; and
(b) there are in force fishing permits, scientific permits, foreign
fishing licences or foreign master fishing licences entitling the holders of
such permits or licences to participate in that fishery.
(2) If, after consultation:
(a) with the management advisory committee for a fishery to which this
section applies; and
(b) with all holders of fishing permits, scientific permits, foreign
fishing licences or foreign master fishing licences entitling the holders to
participate in the fishery;
AFMA is satisfied that it is necessary, in pursuit of its objectives, to
direct that fishing not be engaged in in any part of the fishery, or in a
particular area of the fishery, during a period or periods specified in the
direction, AFMA may, by notice in writing published in the Gazette, give
a direction to that effect.
(3) AFMA may, at any time, by a further direction in writing, vary or
revoke a direction given under subsection (2).
(4) If AFMA gives a direction under subsection (2), or varies or
revokes such a direction, it must ensure that a copy of the direction is sent to
each holder of a fishing permit, a scientific permit, a foreign fishing licence
or a foreign master fishing licence, in respect of the fishery to which the
direction, or direction as varied or revoked, relates.
(5) A direction under subsection (2), or a variation or revocation of
such a direction, is a disallowable instrument for the purposes of
section 46A of the Acts Interpretation Act 1901.
21 Before Part 5
Insert:
(1) AFMA must establish and maintain a Register relating to fishing
permits granted under section 32 to be called the Fishing Permits
Register.
(2) The Fishing Permits Register may be kept wholly or partly by use of a
computer.
(3) If the Fishing Permits Register is kept wholly or partly by use of a
computer:
(a) references in this Act to an entry in the Fishing Permits Register are
to be read as including references to a record of particulars kept by use of the
computer and comprising the Fishing Permits Register or a part of the Register;
and
(b) references in this Act to particulars being entered in the Fishing
Permits Register are to be read as including references to the keeping of a
record of those particulars as part of the Fishing Permits Register by use of
the computer; and
(c) references in this Act to the rectification of the Fishing Permits
Register are to be read as including references to the rectification of the
record of particulars kept by use of the computer and comprising the Fishing
Permits Register or part of the Register.
(1) AFMA must register each fishing permit that it grants under
section 32 by entering in the Fishing Permits Register:
(a) the name of the person to whom the permit is granted; and
(b) the area of the AFZ, or the fishery, that is specified in the permit;
and
(c) the period for which the permit remains in force; and
(d) if the permit is granted in respect of a nominated boat or if, after
the grant of the permit, a boat is nominated—the name and distinguishing
symbols for the nominated boat; and
(e) such other particulars (if any) as are prescribed.
(2) Subject to subsections (3) and (4), if any of the particulars
required to be recorded under subsection (1) changes, AFMA must, as soon as
it becomes aware of that change, alter the Fishing Permits Register to record
that change.
(3) If, in relation to a boat particulars of which are included in the
Fishing Permits Register:
(a) the fishing permit covering that boat is suspended or the suspension
is revoked; or
(b) the fishing permit covering that boat is cancelled or ceases to have
effect;
AFMA must record in the Fishing Permits Register the fact of that
suspension, revocation, cancellation or cessation and also the reason for
it.
(4) Where, because of a decision made by AFMA, a Joint Authority, the
Administrative Appeals Tribunal or a court, a record made by AFMA under
subsection (3) is no longer correct, AFMA must rectify the Fishing Permits
Register accordingly.
(1) The Fishing Permits Register must be available for inspection in
accordance with the regulations and on payment of the prescribed fee by any
person during the hours that AFMA is open for business.
(2) If the Fishing Permits Register is kept wholly or partly by use of a
computer, subsection (1) is taken to have been complied with, to the extent
that the Register is so kept, by giving members of the public access to a
computer terminal so that they can inspect the Register, either on a screen or
in the form of a computer print-out.
Sections 53, 54, 55 and 56 apply to the Fishing Permits Register in
like manner as they apply to the Register established and maintained under
Part 4.
A person is guilty of an offence if:
(a) the person produces or tenders a document in evidence; and
(b) the document falsely purports to be:
(i) an instrument, or a copy of or extract from an instrument, lodged with
AFMA under this Part; or
(ii) a copy of or extract from an entry in the Fishing Permits
Register.
Maximum penalty: Imprisonment for 2 years.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: Subsections 137.1(1) and 137.2(1) of the Criminal
Code create offences for the provision of false or misleading documents or
information in purported compliance with Commonwealth
legislation.
22 Subsection 84(6)
Omit “(except paragraph (1)(aa)), the officer must”,
substitute “the officer must make all reasonable efforts to identify
himself or herself and must, unless subsection (6A)
applies”.
23 After subsection 84(6)
Insert:
(6A) If the requirement under subsection (1) is made in such
circumstances that it is impossible to produce the written evidence referred to
in paragraph (6)(a) or the identity card referred to in
paragraph (6)(b), as the case requires, at the time of making the
requirement, that evidence or identity card must be produced for inspection by
the relevant person at the first available opportunity after the making of the
requirement.
24 Subsection 88(1)
Omit all the words after paragraph (b), substitute:
on such conditions (if any) as AFMA thinks fit, including conditions as to
the giving of security:
(c) for payment of the value of the property if it is forfeited;
and
(d) for the payment of any fines that may be imposed under this Act in
respect of offences that AFMA has reason to believe have been committed with the
use of, or in relation to, that property; and
(e) if the property is a foreign boat in respect of which the Commonwealth
has incurred pursuit costs in the circumstances set out in
section 106L—for the pursuit costs in respect of that boat as
notified in accordance with Subdivision CA of Division 6.
25 At the end of subsection
88(2)
Add:
; and (c) a reference to pursuit costs, in respect of a foreign boat, has
the same meaning as in Subdivision CA of Division 6.
26 Subsection 100A(2)
Repeal the subsection, substitute:
(2) The offence is punishable on conviction:
(a) if the boat involved in the offence has a length of, or exceeding, 24
metres—by a fine of not more than 7,500 penalty units; and
(b) if the boat involved in the offence has a length of less than 24
metres—by a fine of not more than 5,000 penalty units.
(2A) For the purposes of subsection (2), the length of a boat is the
overall length of the boat determined in accordance with section 10 of the
Shipping Registration Act 1981.
27 After Subdivision C of Division 6 of
Part 6
Insert:
In this Subdivision:
costs reasonably incurred by or on behalf of the
Commonwealth, in respect of pursuit activities conducted in respect of a
foreign boat, means all costs:
(a) that the Commonwealth is liable to pay in respect of such activities;
and
(b) that are directly attributable to the conduct of those
activities;
and, without limiting the generality of the above, includes:
(c) costs incurred by any Commonwealth agency or body in respect of such
activities; and
(d) costs incurred by any arm of the Australian Defence Force that
provides assistance in respect of such activities; and
(e) costs incurred by the government of any foreign country that provides
assistance or facilities in respect of such activities, being costs so incurred
on the basis that those costs will be reimbursed by the Commonwealth.
Federal Court means the Federal Court of Australia.
foreign boat to which this Subdivision applies has the
meaning given by subsection 106L(1).
processing place, in respect of a foreign boat to which this
Subdivision applies, means the place in Australia or in an external Territory
that is determined by AFMA under section 106L to be the processing place in
relation to that boat.
pursuit activities, in respect of a foreign boat, means the
activities of pursuing and apprehending the boat and bringing the boat, or
causing the boat to be brought, with or without an escort, to its processing
place.
pursuit costs, in respect of a foreign boat, means the costs
reasonably incurred by or on behalf of the Commonwealth in respect of pursuit
activities conducted in respect of the boat.
The regulations may set out principles for working out the costs incurred
by or on behalf of the Commonwealth that are directly attributable to the
conduct of pursuit activities.
(1) This Subdivision applies to a foreign boat if:
(a) the foreign boat is forfeited to the Commonwealth under
section 106A; and
(b) the master of the boat fails:
(i) to stop the boat in accordance with the requirement under paragraph
84(1)(aa); or
(ii) to bring the boat to a place and to remain in control of the boat at
that place in accordance with a requirement under paragraph 84(1)(k) or (l);
and
(c) as a result of that failure, pursuit activities are taken in respect
of the boat culminating in its arrival at a place in Australia or an external
Territory that is determined by AFMA to be the processing place in relation to
that boat.
(2) Subject to the operation of this Subdivision, the owner of a foreign
boat to which this Subdivision applies is liable to pay to the Commonwealth, by
way of penalty, all pursuit costs incurred in respect of that boat.
(3) If a foreign boat has more than one owner, then the owners are jointly
and severally liable to pay the pursuit costs incurred in respect of the
boat.
(4) Costs payable by an owner of a foreign boat to the Commonwealth under
this Subdivision may be recovered by the Commonwealth as a debt due to the
Commonwealth in a court of competent jurisdiction.
(1) As soon as practicable after bringing a foreign boat to which this
Subdivision applies to its processing place and after notice of seizure of the
boat has been given under section 106C, an officer of AFMA must give
written notice to the person:
(a) who was the master of the boat immediately before its apprehension;
or
(b) whom the officer has reasonable grounds to believe was the master of
the boat immediately before its apprehension;
of the fact that a debt for the pursuit costs has been incurred in respect
of that boat.
However, if the officer cannot conveniently give the notice to the person
in person, the officer may give notice of the debt in respect of the boat by
fixing the notice to a prominent part of the boat.
(2) The notice must:
(a) state that a debt for pursuit costs has been incurred; and
(b) specify the circumstances in which the debt has been incurred;
and
(c) state that full particulars of the pursuit costs will be provided in
accordance with section 106N as soon as they are available and not later
than 10 days after the date of giving the notice; and
(d) indicate that, on provision of full particulars of the debt, the debt
is required to be paid unless the owner of the boat informs the Managing
Director of AFMA, within 30 days of those full particulars being provided under
section 106N, that the owner will institute proceedings in the Federal
Court to contest the debt; and
(e) specify the address of the Managing Director of AFMA.
(1) Within 10 days of the giving of a preliminary notice of debt in
relation to pursuit costs in respect of a foreign boat, an officer of AFMA must
give a further notice setting out full particulars of the debt and the means of
its calculation.
(2) The notice must be given to the person referred to in subsection
106M(1) or, if the officer cannot conveniently give the notice to the person in
person, the officer may give the notice by fixing it to a prominent part of the
boat.
(1) By force of this section, if the owner of a foreign boat in respect of
which full particulars of pursuit costs have been provided under a notice under
section 106N does not, within 30 days after the giving of that notice,
inform the Managing Director of AFMA, by notice in writing, of an intention to
contest the debt, the debt is due and payable at the expiration of that
period.
(2) For the purposes of subsection (1), the notice of intention to
contest the debt:
(a) must be in English; and
(b) must set out an address for service for the person proposing to
contest the debt.
(1) If the owner of a foreign boat gives a notice of intention to contest
a debt for pursuit costs in respect of a foreign boat as described in
section 106N, the Managing Director of AFMA must inform the owner that the
debt for those costs will become due and payable at the end of the period of 2
months after the giving of the notice of intention unless the owner institutes
proceedings against the Commonwealth in the Federal Court, not later than the
end of that period, for an order that:
(a) the debt is not payable because the boat was not forfeited to the
Commonwealth; or
(b) the debt, or a part of the debt, was not reasonably
incurred.
(2) If the owner does not institute the proceedings referred to in
subsection (1) before the end of the period of 2 months referred to in that
subsection, the debt is due and payable at the expiration of that
period.
(3) For the avoidance of doubt, the reference in subsection (1) to
proceedings instituted against the Commonwealth for an order that the debt for
pursuit costs payable in respect of a foreign boat is not payable because the
boat was not forfeited to the Commonwealth is taken to include a reference to
any proceedings instituted in accordance with section 106F for a
declaration that the boat is not forfeited, even if those proceedings do not
directly relate to the liability for pursuit costs.
(1) Jurisdiction is conferred on the Federal Court to hear and determine
any proceedings to contest a debt for pursuit costs.
(2) The Federal Court may, if it is satisfied that:
(a) the owner was not informed, and did not otherwise become aware, of the
particulars of the pursuit costs provided under section 106N within such
time as to afford the owner a reasonable opportunity to give the Managing
Director of AFMA, under subsection 106P(1), notice of its intention to contest
the debt; and
(b) in all the circumstances of the case, the owner should be permitted to
contest the debt even though the owner did not give that notice;
make an order that:
(c) the owner may contest the debt; and
(d) if the Court is satisfied that the owner still does not have full
particulars of the pursuit costs—that the Managing Director of AFMA
provide those particulars to the owner.
(3) If the Federal Court makes an order under
subsection (2):
(a) sections 106P and 106Q cease to apply; and
(b) unless the owner institutes proceedings against the Commonwealth of
the kind described in subsection 106Q(1) within the period of 2 months after the
making of the order, or the provision of full particulars of pursuit costs in
accordance with the order—the debt becomes due and payable at the
expiration of that period.
(4) If the owner of a foreign boat institutes proceedings of the kind
referred to in subsection 106Q(1) either:
(a) under that subsection; or
(b) under this section;
to contest a debt for pursuit costs in respect of that boat before the end
of the period of 2 months referred to in subsection 106Q(1) or in
subsection (3) of this section, as the case requires, the Federal Court
may:
(c) if the Court is satisfied that the boat is not forfeited to the
Commonwealth—make an order that the pursuit costs are not payable to the
Commonwealth; and
(d) if the Court is satisfied, having regard to the circumstances of the
case, that the pursuit costs, or any particular part of the pursuit costs,
claimed in respect of the boat are not costs reasonably incurred—make an
order that the pursuit costs, or that particular part of the pursuit costs, are
not so payable to the Commonwealth.
In any proceedings of the kind referred to in subsection 106Q(1) that are
brought by the owner of a foreign boat against the Commonwealth to contest a
debt for pursuit costs:
(a) the onus lies on the owner to establish, on the balance of
probabilities, that the boat is not forfeited to the Commonwealth; and
(b) the onus lies on the Commonwealth to establish, on the balance of
probabilities:
(i) that the circumstances set out in subparagraph 106L(1)(b)(i) or (ii)
and in paragraph 106L(1)(c) apply in relation to the boat; and
(ii) that the pursuit costs notified in relation to the boat are
reasonable and have been correctly worked out.
28 At the end of
section 113
Add:
(2) If:
(a) levy is due and payable in respect of a fishing permit granted under
section 32; and
(b) that permit is surrendered before any fishing activities are
undertaken under the permit;
AFMA may, on behalf of the Commonwealth, by written notice given to the
holder of the permit, waive:
(c) the levy payable in respect of that permit; and
(d) if any amount is payable under section 112 in respect of that
levy—the amount so payable.