ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION AMENDMENT (DECLARED FISHING ACTIVITIES) BILL 2012

2010-2011-2012

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Environment Protection and Biodiversity

Conservation Amendment (Declared

Fishing Activities) Bill 2012

No. , 2012

(Sustainability, Environment, Water, Population and Communities)

A Bill for an Act to amend the Environment

Protection and Biodiversity Conservation Act 1999,

and for related purposes

i Environment Protection and Biodiversity Conservation Amendment (Declared Fishing

Activities) Bill 2012 No. , 2012

Contents

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

3 Schedule(s)

........................................................................................

Schedule 1--Declared fishing activities

Environment Protection and Biodiversity Conservation Act 1999

Environment Protection and Biodiversity Conservation Amendment (Declared Fishing Activities)

Bill 2012 No. , 2012 1

A Bill for an Act to amend the Environment

Protection and Biodiversity Conservation Act 1999,

and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Environment Protection and

Biodiversity Conservation Amendment (Declared Fishing

Activities) Act 2012.

2 Commencement

This Act commences on the day this Act receives the Royal

Assent.

Declared fishing activities Schedule 1

Environment Protection and Biodiversity Conservation Amendment (Declared Fishing Activities)

Bill 2012 No. , 2012 3

Schedule 1--Declared fishing activities

Environment Protection and Biodiversity Conservation Act

1999

1 After Chapter 5A

Insert:

Chapter 5B--Declared fishing activities

Part 15B--Declared fishing activities

Division 1--Prohibition

390SA Civil penalty--declared fishing activities

A person must not engage in a declared fishing activity in a

Commonwealth marine area.

Civil penalty:

(a) for an individual--5,000 penalty units;

(b) for a body corporate--50,000 penalty units.

Note:

If a body corporate is found to have contravened this section, an

executive officer of the body may be found to have contravened

section 494.

390SB Offence--declared fishing activities

(1) A person commits an offence if:

(a) the person takes an action; and

(b) the action is taken in a Commonwealth marine area; and

Penalty: Imprisonment for 7 years or 420 penalty units, or both.

Note 1:

If a body corporate is found to have committed an offence against this

section, an executive officer of the body may be found to have

committed an offence against section 495.

Note 2:

Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body

corporate up to 5 times the maximum amount the court could fine a

person under this subsection.

Schedule 1 Declared fishing activities

4 Environment Protection and Biodiversity Conservation Amendment (Declared Fishing

Activities) Bill 2012 No. , 2012

(2) Strict liability applies to paragraph (1)(b).

Note:

For strict liability, see section 6.1 of the Criminal Code.

Division 2--Declaring a fishing activity

Subdivision A--What is a declared fishing activity?

390SC What is a declared fishing activity?

(1)

declared fishing activity is a fishing activity that is specified in:

(a) an interim declaration that is in force under section 390SD;

(b) a final declaration that is in force under section 390SF.

(2)

fishing activity means an activity that constitutes fishing.

Subdivision B--Interim declaration

390SD Interim declaration

Making an interim declaration

(1) The Minister may, by legislative instrument, make a declaration

(an interim declaration) that a specified fishing activity is a

declared fishing activity.

Note 1:

For variation of an interim declaration, see subsection 33(3) of the

Acts Interpretation Act 1901.

Note 2:

For revocation of an interim declaration, see section 390SG.

(2) When making an interim declaration, the Minister may identify a

fishing activity by reference to all or any of the following:

(a) a method of fishing;

(b) a type of vessel used for fishing;

have been taken;

(d) an area of waters or of seabed.

Note:

Subsection (2) does not, by implication, limit subsection 33(3A) of the

Acts Interpretation Act 1901.

(3) The Minister must not make an interim declaration unless the

Minister and the Fisheries Minister agree that:

Declared fishing activities Schedule 1

Environment Protection and Biodiversity Conservation Amendment (Declared Fishing Activities)

Bill 2012 No. , 2012 5

(a) there is uncertainty about the environmental, social or

economic impacts of the fishing activity; and

(b) it is appropriate that the fishing activity be prohibited in a

Commonwealth marine area while consultation occurs under

section 390SE about whether to make a final declaration in

relation to the fishing activity under section 390SF.

When an interim declaration is in force

(4) An interim declaration:

(a) comes into force at the end of the day on which it is

registered in the Federal Register of Legislative Instruments;

and

(b) remains in force until the earlier of the following times:

(i) the end of the period specified in the declaration as the

period for which the declaration is in force;

(ii) if the declaration is revoked--when the revocation

comes into force.

Specified period for which interim declaration is in force

(5) The Minister must specify in an interim declaration the period for

which it is to be in force. The period must not be longer than 60

days.

390SE Consultation

(1) As soon as is practicable after making an interim declaration under

section 390SD declaring that a specified fishing activity is a

declared fishing activity, the Minister must publish a notice on the

Department's website in accordance with subsection (2).

(2) The notice must:

(a) invite each declaration affected person (see subsection (3)) to

make a written submission about the impact on the person's

rights or interests in relation to fishing if a final declaration

under section 390SF were made in relation to the fishing

activity; and

(b) specify that written submissions must be lodged during the

period specified in the notice; and

Schedule 1 Declared fishing activities

6 Environment Protection and Biodiversity Conservation Amendment (Declared Fishing

Activities) Bill 2012 No. , 2012

lodged.

(3)

declaration affected person, in relation to a fishing activity,

means a person who:

(a) holds a fishing concession or is prescribed by the regulations;

and

(b) considers that the person would be detrimentally affected by

the making of a final declaration under section 390SF in

relation to the fishing activity.

(4) For the purposes of paragraph (1)(b), the period specified in the

notice must be at least 11 business days after the day the notice is

published.

Subdivision C--Final declaration

390SF Final declaration

Making a final declaration

(1) The Minister may, by legislative instrument, make a declaration (a

final declaration) that a specified fishing activity is a declared

fishing activity.

Note 1:

For variation of a final declaration, see subsection 33(3) of the Acts

Interpretation Act 1901.

Note 2:

For revocation of a final declaration, see section 390SG.

(2) The Minister must not make a final declaration unless:

(a) the fishing activity is the same as a fishing activity that is, or

was, specified in an interim declaration under section 390SD;

and

(b) consultation under section 390SE has occurred in relation to

the fishing activity; and

(i) was made under section 390SE by a declaration affected

person; and

(ii) was lodged during the period referred to in paragraph

390SE(1)(b); and

Declared fishing activities Schedule 1

Environment Protection and Biodiversity Conservation Amendment (Declared Fishing Activities)

Bill 2012 No. , 2012 7

(d) the Minister and the Fisheries Minister agree that there is

uncertainty about the environmental, social or economic

impacts of the fishing activity; and

(e) the Minister and the Fisheries Minister agree that it is

appropriate that:

(i) an expert panel be established under section 390SH to

conduct an assessment of the fishing activity and report

on the matter; and

(ii) the fishing activity be prohibited in a Commonwealth

marine area while the expert panel conducts the

assessment.

When a final declaration is in force

(3) A final declaration:

(a) comes into force at the end of the day on which it is

registered in the Federal Register of Legislative Instruments;

and

(b) remains in force until the earliest of the following times:

(i) the end of the day on which the report of the expert

panel is published on the Department's website under

paragraph 390SL(a);

(ii) the end of the period specified in the declaration as the

period for which the declaration is in force;

(iii) if the declaration is revoked--when the revocation

comes into force.

Specified period for which final declaration is in force

(4) The Minister must specify in a final declaration the period for

which it is to be in force. The period must not be longer than 24

months.

Subdivision D--Revoking declarations

390SG Revoking an interim or final declaration

(1) The Minister may, by legislative instrument, revoke:

(a) an interim declaration under section 390SD; or

(b) a final declaration under section 390SF.

Schedule 1 Declared fishing activities

8 Environment Protection and Biodiversity Conservation Amendment (Declared Fishing

Activities) Bill 2012 No. , 2012

(2) A revocation under subsection (1) comes into force at the end of

the day on which it is registered in the Federal Register of

Legislative Instruments.

Division 3--Expert panel assessment of declared fishing

activity

390SH Establishment of expert panel

(1) As soon as is practicable after making a final declaration under

section 390SF declaring that a specified fishing activity is a

declared fishing activity, the Minister must:

(a) appoint, in writing, one or more persons (the members) as an

expert panel to conduct an assessment and report to the

Minister about the fishing activity; and

(b) with the agreement of the Fisheries Minister, specify in

writing (the terms of reference):

(i) the matters relating to the fishing activity that are to be

the subject of the assessment and report; and

(ii) the date by which the panel must report to the Minister.

Note:

The Minister may revoke an appointment: see subsection 33(3) of the

Acts Interpretation Act 1901.

(2) The Minister may specify in the terms of reference the manner in

which the expert panel is to carry out the assessment.

(3) The Minister may, in writing, vary or revoke the terms of reference

with the agreement of the Fisheries Minister.

(4) The Minister must:

(a) publish a copy of the terms of reference on the Department's

website as soon as is practicable after the Minister specifies

or varies them; and

(b) cause a copy of the terms of reference to be laid before each

House of the Parliament within 15 sitting days of that House

after the day the Minister specifies or varies them.

Declared fishing activities Schedule 1

Environment Protection and Biodiversity Conservation Amendment (Declared Fishing Activities)

Bill 2012 No. , 2012 9

390SI Terms and conditions

The Minister must determine, in writing, the terms and conditions

applicable to members of the expert panel, including terms and

conditions relating to:

(a) term of office; and

(b)

remuneration;

and

(c)

allowances;

and

(d) disclosure of interests.

390SJ Procedure for assessment

(1) The expert panel must comply with the terms of reference in

conducting the assessment.

(2) Subject to subsection (1), the expert panel may determine the

procedure to be followed in its assessment.

390SK Timing of the report

The expert panel must give the Minister the report on the

assessment on the date specified by the Minister in the terms of

reference.

390SL Publication of the report

The Minister must:

(a) publish a copy of the report on the Department's website

within 20 business days after the day the Minister receives

the report; and

(b) cause a copy of the report to be laid before each House of the

Parliament within 15 sitting days of that House after the day

the Minister receives the report; and

by the regulations.

2 Paragraph 494(1)(a)

Repeal the paragraph, substitute:

(a) a body corporate contravenes:

(i) a civil penalty provision of Part 3 (requirements for

approval); or

Schedule 1 Declared fishing activities

10 Environment Protection and Biodiversity Conservation Amendment (Declared Fishing

Activities) Bill 2012 No. , 2012

(ii) section 142 (condition of approval); or

(iii) section 390SA (declared fishing activity); and

3 Subparagraph 495(2)(a)(viii)

Repeal the subparagraph, substitute:

(viii) section 142A (Offence of breaching conditions on

approval); or

(ix) section 390SB (Offence relating to declared fishing

activity); and

4 Section 528

Insert:

declaration affected person has the meaning given by subsection

390SE(3).

5 Section 528

Insert:

declared fishing activity has the meaning given by subsection

390SC(1).

6 Section 528

Insert:

Federal Register of Legislative Instruments means the Federal

Legislative Instruments Act 2003.

7 Section 528

Insert:

fish has the same meaning as in the Fisheries Management Act

1991.

8 Section 528

Insert:

Fisheries Minister means the Minister administering the Fisheries

Management Act 1991.

Declared fishing activities Schedule 1

Environment Protection and Biodiversity Conservation Amendment (Declared Fishing Activities)

Bill 2012 No. , 2012 11

9 Section 528

Insert:

fishing has the same meaning as in the Fisheries Management Act

1991.

10 Section 528

Insert:

fishing activity has the meaning given by subsection 390SC(2).

11 Section 528

Insert:

fishing concession has the same meaning as in the Fisheries

Management Act 1991.

12 Section 528 (definition of terms of reference)

Repeal the definition, substitute:

terms of reference:

(a) in relation to an inquiry under Division 7 of Part 8--has the

meaning given by paragraph 107(1)(b); and

(b) in relation to an assessment under Division 3 of Part 15B--

has the meaning given by paragraph 390SH(1)(b).

Commonwealth of Australia Bills

ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION AMENDMENT (DECLARED FISHING ACTIVITIES) BILL 2012