Commonwealth Numbered Regulations - Explanatory Statements

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FISHERIES MANAGEMENT REGULATIONS (AMENDMENT) 1997 NO 19

STATUTORY RULES 1997 No. 19

Issued by the authority of the Minister for Resources and Energy

Fisheries Management Act 1991

Fisheries Management Regulations (Amendment)

Subsection 168(1) of the Fisheries Management Act 1991 (the Act) empowers the Governor-General to make regulations required or permitted by the Act to be prescribed and regulations necessary or convenient to be prescribed in carrying out or giving effect to the Act.

Division 2 of Part 6 of the Act (sections 91 to 93 inclusive) relates to the receiving of fish from persons engaged in commercial fishing (operators). Subsection 91(1) empowers the Australian Fisheries Management Authority (AFMA) to declare that the Division applies to particular fisheries (declared fisheries). Subsection 91(2) provides, among other things, for the grant of fish receiver permits, which allow a person to receive fish from an operator in a declared fishery. Subsection 92(2) provides that the regulations may require holders of fish receiver permits to make and keep accounts and other records, and to give returns or information, in relation to fish received by them. Section 93 of the Act provides that a holder of a fish receiver permit must not without reasonable excuse , refuse or fail to give a return or information that the person is required to give under section 92 or under regulations made for the purposes of that section.

Subparagraph 168(2)(i) provides that regulations may be made enabling a person who is alleged to have contravened section 93 of the Act or regulations made for the purposes of section 42 to pay to AFMA, as an alternative to prosecution, a specified penalty, not exceeding the maximum penalty by which contravention of that provision is otherwise punishable. Section 42 provides that the regulations may provide for the holders of fishing concessions to record, and furnish returns containing, information of the kind referred to in paragraphs 42(1)(a), (b) and (c).

The Fisheries Management Regulations (the principal Regulations) prescribe matters in support of the Act, including the making of records by fish receiver permit holders and the service of, and payment of penalties in respect of, infringement notices as an alternative to prosecution in respect of offences against section 93 or regulations made for the purposes of section 42 (contained in Part 9 of the principal Regulations).

The Fisheries Management Regulations (Amendment) (the Regulations) amend the principal Regulations to deal with 2 matters:

*       The first matter relates to recording and keeping of information by holders of fish receiver permits. Fish receiver permits need only be held by persons (such as fish processors) who receive some or all of their fish from operators in declared fisheries. Until recently, only the Southern Bluefin Tuna Fishery, the South East Trawl Fishery and the Great Australian Bight Trawl Fishery were declared fisheries.

*       AFMA has now made the Eastern Tuna and Billfish Fishery (ETBF) a declared fishery. The proposed Regulations would amend the principal Regulations to require fish receiver permit holders to record the number of fish of certain species taken in the ETBF, in addition to the name and amount of each species by weight, in the records fish receiver permit holders are required to maintain.

One reason for the introduction of fish receiver permits in the ETBF is to monitor the validity of logbook data provided by fishing concession holders (operators). The proposed Regulations would require fish receiver permit holders to record the number of fish received of each of the principal species taken in the ETBF, including blue and black marlin, which are of significant value to the recreational and charter fishing sectors. A voluntary ban applies to the commercial take of blue and black marlin and AFMA wishes to closely monitor the effectiveness of this voluntary ban. Fish receiver permits will provide a mechanism for ascertaining the extent to which blue and black marlin are being landed as an incidental part of commercial fishing operations in the ETBF.

*       The second matter is the making of amendments to the principal Regulations to allow AFMA to serve reminder notices in respect of infringement notices and to deal with certain evidentiary matters relating to service of infringement notices. The Commonwealth Director of Public Prosecutions has provided written advice recommending that such amendments be made.

The Regulations also correct a typographical error detected in the principal Regulations.

Details of the Regulations, which commenced on gazettal, are set out below:

Regulation 1 provides that the Regulations amend the principal Regulations.

Regulation 2 amends regulation 3 of the principal Regulations by omitting the words "an offence against" from paragraph (b) of the definition of "relevant offence" and by inserting a definition of "Southern Bluefin Tuna".

Regulation 3 inserts a new heading "Division 1 - Warrants" into the principal Regulations, after the heading "Part 4 (Surveillance and enforcement)".

Regulation 4 omits regulation 10A of the principal Regulations, which requires records to be kept by fish receiver permit holders and sets out what those record must include, inserts a new heading "Division 2 - Fish receiver permits" and replaces regulation 10A with new regulations 10A, 100AA, 10AB, and 10AC.

*        New regulation 10A defines certain terms used in Division 2 of Part 4 of the Regulations.

*       New regulation 10AA requires holders of fish receiver permits to make and keep records of information about fish they receive and dispose of which include the information set out in regulations 10AB and 10AC. The regulation also specifies where and for how long the records must be kept.

*       New regulation 10AB sets out what information must be included in a record of fish received. Reflecting the high value of individual Southern Bluefin Tuna and the fish taken from the Eastern Tuna and Billfish Fishery listed in paragraph (3)(b), when these fish are received the extra information described in paragraphs (2)(a) and (2)(b) and subregulation (3) must also be recorded.

*       New regulation 10AC sets out what information must be included in a record of fish disposed of. Reflecting the high value of individual Southern Bluefin Tuna and the fish taken from the Eastern Tuna and Billfish Fishery listed in paragraph (3)(b), when these fish are disposed of the extra information described in paragraphs (2)(a) and (2)(b) and subregulation (3) must also be recorded.

Regulation 5 omits the definition of Southern Bluefin Tuna from subregulation 10B(1), and omits a reference to regulation 10A from paragraph 10B(3)(a) and replaces it with a reference to regulation 10AA.

Regulation 6 inserts a new regulation 40A into the principal Regulations. The new regulation enables AFMA, in the circumstances set out in the regulation, to serve a reminder notice on a person who has been served with an infringement notice. Any reminder notice must state the matters set out in new subregulation 40A(2).

Regulation 7 omits regulation 42 from the principal Regulations and replaces it with a new regulation 42. New subregulation 42(1) provides that an officer may sign a certificate stating and specifying certain matters set out in that subregulation. Subregulation 42(2) provides that at a hearing of a prosecution for an offence specified in an infringement notice a certificate described in subregulation 42(1) is prima facie evidence of the matters stated in the certificate. Subregulation 42(3) provides that a certificate purporting to have been signed by an officer is admissible in any proceedings as prima facie evidence of the fact that it was so signed.