EXPLANATORY STATEMENT

Select Legislative Instrument 2010 No. 1

Issued by the authority of the Minister for Agriculture, Fisheries and Forestry

Fisheries Management Act 1991

Fisheries Management Amendment Regulations 2010 (No. 1)

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

Subsection 168(1) of the Fisheries Management Act 1991 (the Act) provides that the
Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed, in carrying out or giving effect to the Act.

Subsection 168(2) of the Act provides that without limiting the generality of subsection 168(1), regulations may be made dealing with the matters prescribed in paragraphs (a) to (v). These matters include:

 

·              prescribing penalties not exceeding 25 penalty units for offences against the regulations (paragraph 168(2)(a));

 

·              providing (in addition to the collection of information in the exercise or performance of its other powers and functions under the Act) for the collection by the Australian Fisheries Management Authority (AFMA) of information relating to:

 

o       possible breaches of the laws of Australia or of a foreign country; or

o       the control and protection of Australia’s borders; or

o       the administration and management of fisheries or marine environments; or

o       research or monitoring conducted, or proposed to be conducted, into fisheries or marine environments.

 

·              providing for the disclosure of information, including personal information, relating to any of those four areas (paragraphs 168(2)(u) and (v); and

 

·              prescribing short methods of reference to areas of the Australian Fishing Zone (AFZ) and the purposes for which those methods of reference may be used (paragraph 168(2)(p)).

The functions of AFMA are set out in s 7 of the Fisheries Administration Act 1991 (the FA Act), in particular paragraphs 7(1)(gaa) and (gb) prescribe:

(gaa) in addition to the collection and disclosure of information in the exercise or performance of its other powers and functions – to collection, as authorized (within the meaning of subsection 7(4)), information relating to [paragraphs (i) to (iv) in new subregulation 78(1) below)];

(gb) to disclose, as authorised (within the meaning of subsection 7(4)), information, including personal information, relating to [paragraphs (i) to (iv) in new subregulation 78(1) below].

 

Subsection 7(4) of the FA Act provides that collection or disclosure of information is authorised for the purposes of paragraph (1)(gaa) or (gb) if it is done in accordance with the FA Act, the Act, the Torres Strait Act 1984, or regulations made under one of those Acts.

These Regulations amend the Fisheries Management Regulations (the Principal Regulations) by authorising the collection and disclosure of information for the purposes of paragraphs 7(1)(gaa) and (gb) of the FA Act.

 

The Regulations also amend regulation 4B in the Principal Regulations by clarifying and confining the purpose of regulation 4B to defining areas of the AFZ for descriptive purposes only:

o       in relation to sections 32, 33, 34 and 91 of the Act; and

o       in relation to the Fishing Levy Regulations 2009, made under the Act and the Fishing Levy Act 1991.

These Regulations also insert into the Principal Regulations new regulations which create offences concerned with the navigation of a boat in a fishery, or a part of a fishery, which is subject to a direction by AFMA under paragraph 17(5A)(a) or subsection 41A(2) of the Act that fishing is not to be engaged in.

Regulation Impact Statement

In view of the low or nil impact on business, the Office of Regulation Review has advised that a Business Cost Calculator Report or a Regulation Impact Statement is not required (ID 9998, ID 10463 and ID 10594).

Consultation

The Privacy and Freedom of Information Policy Branch of the Department of the Prime Minister and Cabinet and the Commonwealth Fishing Association (the peak industry body) were consulted on the content of new Part 13 of the Regulations. The fishing industry was also consulted on the offence provisions, in new Part 9A of the Regulations, through the Commonwealth Fishing Association and industry forums.

 

The proposed amendments to Regulation 4B underwent extensive internal consultation, including with the AFMA Regulatory Reform Committee. In view of the nature of the amendments, external consultation was not warranted.  

 

The Regulations

 

Details of the Regulations are set out below:

 

Regulation 1 provides for the Regulations to be referred to as the Fisheries Management Amendment Regulations 2010 (No. 1).

 

Regulation 2 provides that the Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.

 

Regulation 3 provides that Schedule 1 amends the Fisheries Management Regulations 1992 (the Principal Regulations).

 

Schedule 1 Item 1 inserts into the Principal Regulations a definition of ‘vessel monitoring system’ (VMS) by reference to the definition in subsection 167B(4) of the Fisheries Management Act 1991 (the Act).

 

Schedule 1 Item 2 substitutes the heading for Part 2B with ‘Fisheries and described areas’. This amendment is as a result of the amendment to the heading to regulation 4B in item 2.

 

Schedule 1 Item 3 substitutes regulation 4B with a new regulation 4B, headed, ‘Described areas of waters within the AFZ’, which includes a table listing only those fisheries for which there are no plans of management currently in place and a corresponding reference to their areas of waters as defined in Part 2 of Schedule 1A. Those fisheries for which there are plans of management in place have been removed from regulation 4B and are not included in this table. Corresponding changes to reflect these amendments are made at items 1, 3, 4, 6 and 8. Those amendments ensure that regulation 4B does not define fisheries but prescribes areas of waters within the AFZ.

The first note to regulation 4B explains that AFMA may regulate the fishing activities described in this item by taking actions under certain provisions of the Act, such as sections 32, 33, 34 and 91.

The second note, to item 2 in the table, explains that the area of the Eastern Skipjack Fishery is divided into sub-areas.

The third note, to item 7 in the table, explains that the area of the Western Skipjack Fishery, is divided into sub-areas.

 

Schedule 1 Item 4 inserts a new Part 9A, comprising of regulations 37A to 37D and a new Part 13, comprising of regulation 78, as follows:

 

New Part 9A, Offences relating to fisheries

The Regulations create two offences that may be committed by the master of a boat: navigation of a boat in an area that is closed to fishing (a ‘closed zone’) for less than 24 hours, and navigation of a boat in a closed zone for more than 24 hours. The Regulations specify circumstances in which the master of a boat will not commit an offence where the master navigates a boat in a closed zone, such as in an unforeseen emergency, or if the boat maintains a certain speed (being a speed at which a boat is not expected to be able to successfully engage in fishing). This speed would be a deemed, not an actual, speed, to be worked out by means of the boat’s VMS, in accordance with the prescribed method.

New regulation 37A provides that in Part 9A, the term ‘closed zone’ has the meaning given by regulation 37B, and the term ‘unforeseen emergency’ includes the circumstances specified in paragraphs 37A(a) to (e) of that definition.

New regulation 37B specifies, for the purposes of new regulations 37C and 37D, when the area of a fishery, or a particular part of a fishery, is a ‘closed zone’ for a boat.

The fishery, or an area of the fishery, that is subject to a direction under paragraph 17(5A)(a) or subsection 41A(2) of the Act, will be a ‘closed zone’ for a boat if, in addition to the requirements of paragraphs 37B(b) and (c), the direction applies to the holder of a fishing concession or scientific permit that, in the case of a fishing concession, authorises the use of a boat to fish in the fishery, or in the case of a scientific permit, authorises the use of a boat for scientific research purposes in the fishery.

A consequence of regulation 37B is that the area of a fishery, or a particular part of the fishery, that is the subject of a direction under paragraph 17(5A)(a) or subsection 41A(2) of the Act, will not be a ‘closed zone’ for a boat if the direction does not apply to the fishing concession, or scientific permit to which the boat is nominated. This will be the case, for example, where the direction does not apply to the holder of the relevant concession or scientific permit because the concession or scientific permit authorises the holder to fish in another fishery, which is not subject to the direction; or the direction does not apply to the particular concession, or scientific permit, by its terms. ‘Fishery’ is defined in section 4 of the Act. The various ways in which a fishery may be identified means that the geographical areas of particular fisheries may overlap.

New regulation 37C applies where an area is a ‘closed zone’ for a period of less than 24 hours.

New subregulation 37C(1) provides that a master of a boat commits an offence if the boat is being navigated in an area that, at the time, is a ‘closed zone’ for the boat, where the closure is in force for less than 24 hours.

New subregulations 37C(2) and (3) specify the circumstances in which subregulation 37C(1) does not apply.

Whether subregulation 37C(2) applies is to be determined by information given by the boat’s VMS. The subregulation will not apply if the information shows that the boat was in the ‘closed zone’ for a period of 30 minutes or more; and, for the whole of the period the boat was in the ‘closed zone’, the boat was stationary or travelling at a speed of five knots or more as worked out under subregulation 37C(5).

The purpose of the 30 minute requirement (in subregulations 37C(2) and 37D(2)) is to enable at least two location reports to be obtained from the boat’s VMS while the boat is in the closed zone.

New subregulation 37C(4) provides that an offence against subregulation 37C(1) is an offence of strict liability.

New subregulation 37C(5) provides the method for working out a boat’s speed, from information provided by the boat’s VMS, for the purposes of subregulation 37C(2). A boat will be deemed to have travelled between a consecutive pair of points identified by the boat’s VMS at the speed determined by application of that method.

New subregulation 37C(6) provides that a boat is taken to be stationary if travelling at a speed of 0.5 knots or less as worked out under subregulation (5).

New subregulation 34D applies where an area is a ‘closed zone’ for a period of 24 hours or more.

New subregulation 37D(1) provides that a master of a boat commits an offence if the boat is being navigated in an area that, at the time, is a ‘closed zone’ for the boat for a period of
24 hours or more.

New subregulations 37D(2) and (3) specify the circumstances in which subregulation 37D(1) does not apply.

Whether subregulation 37D(2) applies is to be determined by information given by the boat’s VMS. The subregulation will not apply if the information shows that the boat was in the ‘closed zone’ for a period of 30 minutes or more; and, for the whole of the period the boat was in the ‘closed zone’, the boat was travelling at a speed of five knots or more as worked out under subregulation 37D(5).

New subregulation 37D(4) provides that an offence against subregulation 37D(1) is an offence of strict liability.

New subregulation 37D(5) provides the method for working out a boat’s speed, from information provided by the boat’s VMS, for the purpose of paragraph 37D(2)(b). A boat will be deemed to have travelled between a consecutive pair of points identified by the boat’s VMS at the speed determined by application of that method.

Schedule 1 Item 5 provides for the insertion of new Part 13 as follows:

New Part 13 – Collection and disclosure of information

The Regulations are consequent upon the amendment of the Fisheries Administration Act 1991 (the FA Act) by the Fisheries Management Amendment Act 2007 (the Amendment Act). It will clarify and expand AFMA’s functions relating to the collection and disclosure of information relating to possible breaches of the law of Australia or a foreign country relating, and to the control and protection of Australia’s borders, and to enable it to collect and disclose information on fisheries and marine environments for purposes unconnected with its fisheries management functions. The regulation making power in section 168 of the Act was amended at the same time by the addition of paragraphs 168(2)(u) and (v). The Regulations amends the Principal Regulations to authorise the collection and disclosure of this information.

 

New subregulation 78(1) provides that in the performance of its functions mentioned in paragraphs 7(1)(gaa) and 7(1)(gb) of the FA Act, AFMA may collect information, including personal information, relating to any of the following:

 

(i) possible breaches of the laws of Australia or of a foreign country;

(ii)                the control and protection of Australia’s borders;

(iii)               the administration and management of fisheries or marine environments; or

(iv) research or monitoring conducted, or proposed to be conducted, into fisheries or marine

environments.

New subregulation 78(2) provides that AFMA may disclose the information, being information collected pursuant to subregulation 78(1), to a government organisation if AFMA is satisfied that the information relates to the performance of a function of the government organisation.

New subregulation 78(3) provides that AFMA may disclose the information at the request of the government organisation or on its own initiative.

New subregulation 78(4) provides that AFMA may disclose the information in hard copy, electronic format, or orally.

While AFMA is able to collect and disclose relevant information pursuant to other of its functions, including its fisheries management functions, the proposed Regulations authorise it to disclose information (including personal information) that relates to any of the four prescribed categories to a government organisation, for purposes unconnected with those functions.

Prior to the amendment of section 7 of the FA Act by the Amendment Act, then paragraph 7(1)(gb) gave AFMA the function of disclosing information that related to possible breaches of the laws of Australia or a foreign country, but AFMA had no power to collect such information, other than incidentally pursuant to its other functions and powers.

Fisheries and described areas

Schedule 1 Item 6 substitutes the heading for Schedule 1A with ‘Described areas of waters within the AFZ’. This amendment is consistent with the changes to the headings to Part 2B and regulation 4B.

Schedule 1 Item 7 omits Parts 1, 1A, 2A, 3, 3A, 4 and 5 of Schedule 1A. These amendments are a consequence of the changes to regulation 4B referred to in item 2 of Schedule 1.

Schedule 1 Item 8 provides for the insertion of the word ‘Trawl’ after the word ‘Slope’ in the heading of Schedule 1A, Part 6. This is to be consistent with how this fishery is referred to in the table at item 2.

Schedule 1 Item 9 omits Parts 7, 10, 11 and 11B of Schedule 1A. These amendments are a consequence of the changes to regulation 4B referred to in item 3 of Schedule 1.

Schedule 1 Item 10 omits the words ‘Deep Water’ and inserts ‘Deepwater’ in the Schedule 1A, Part 12 Heading. This amendment is to correct a typographical error as this is one word not two.

Schedule 1 Item 11 omits Part 13 of Schedule 1A. These amendments are a consequence of the changes to regulation 4B referred to in item 3 of Schedule 1.