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This is a Bill, not an Act. For current law, see the Acts databases.
FISHERIES LEGISLATION AMENDMENT BILL (NO. 1) 2012
2010-2011-2012
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Fisheries Legislation Amendment Bill
(No. 1) 2012
No. , 2012
(Agriculture, Fisheries and Forestry)
A Bill for an Act to amend various Acts relating to
fisheries, and for related purposes
i Fisheries Legislation Amendment Bill (No. 1) 2012 No. , 2012
Contents
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
1
3 Schedule(s)
........................................................................................
2
Schedule 1--E-monitoring
3
Part 1--Main amendments
3
Fisheries Management Act 1991
3
Part 2--Consequential amendments of the Fisheries
Administration Act 1991
10
Fisheries Administration Act 1991
10
Part 3--Consequential amendments of the Fisheries
Management Act 1991
11
Fisheries Management Act 1991
11
Schedule 2--Closure etc. of fishery
12
Fisheries Management Act 1991
12
Schedule 3--Waiver of levy
14
Fisheries Management Act 1991
14
Schedule 4--Conduct of directors etc.
15
Fisheries Management Act 1991
15
Fisheries Legislation Amendment Bill (No. 1) 2012 No. , 2012 1
A Bill for an Act to amend various Acts relating to
1
fisheries, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Fisheries Legislation Amendment Act
5
(No. 1) 2012.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2 Fisheries Legislation Amendment Bill (No. 1) 2012 No. , 2012
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 this Act receives the Royal Assent.
2. Schedule 1,
Parts 1 and 2
The 28th day after this Act receives the
Royal Assent.
3. Schedule 1,
Part 3
The later of:
(a) the commencement of Part 1 of
Schedule 1 to this Act; and
(b) immediately after the commencement of
Schedule 3 to the Agriculture, Fisheries
and Forestry Legislation Amendment Act
(No. 1) 2012.
However, the provision(s) do not commence
at all if the event mentioned in paragraph (b)
does not occur.
4. Schedules 2
and 3
The 28th day after this Act receives the
Royal Assent.
5. Schedule 4,
items 1 to 10
The 28th day after this Act receives the
Royal Assent.
6. Schedule 4,
items 11 and 12
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedule(s)
7
Each Act that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
12
E-monitoring Schedule 1
Main amendments Part 1
Fisheries Legislation Amendment Bill (No. 1) 2012 No. , 2012 3
Schedule 1--E-monitoring
1
Part 1--Main amendments
2
Fisheries Management Act 1991
3
1 Subsection 4(1)
4
Insert:
5
e-monitoring means electronic monitoring.
6
2 Subsection 4(1)
7
Insert:
8
e-monitoring data means any data (whether or not that data is also
9
personal information, within the meaning of the Privacy Act 1988)
10
that is, or was:
11
(a) generated by; or
12
(b) transmitted by; or
13
(c)
stored
by;
14
e-monitoring equipment installed, carried or used in compliance
15
with a condition imposed under section 40C of this Act on a
16
fishing concession or scientific permit.
17
3 Subsection 4(1)
18
Insert:
19
e-monitoring equipment means:
20
(a) a thing used for, intended to be used for, or capable of being
21
used for, generating, transmitting or storing data; or
22
(b) a thing that makes, is intended to make, or is capable of
23
making, a thing covered by paragraph (a) operational.
24
4 Subsection 4(1)
25
Insert:
26
fishing-related activity means any of the following:
27
(a) searching for, or taking, fish;
28
(b) attempting to search for, or take, fish;
29
Schedule 1 E-monitoring
Part 1 Main amendments
4 Fisheries Legislation Amendment Bill (No. 1) 2012 No. , 2012
(c) engaging in any other activities that can reasonably be
1
expected to result in the locating, or taking, of fish;
2
(d) placing, searching for or recovering fish aggregating devices
3
or associated electronic equipment such as radio beacons;
4
(e) the processing, carrying or transhipping of fish that have
5
been taken;
6
(f) the discarding from a boat of fish, marine mammals, marine
7
reptiles or seabirds;
8
(g) any other activity prescribed by the regulations for the
9
purposes of this definition;
10
(h) any operations on a boat directly in support of, or in
11
preparation for, any activity covered by another paragraph of
12
this definition;
13
(i) any other encounters with fish, marine mammals, marine
14
reptiles or seabirds while engaging in any activity or
15
operation covered by another paragraph of this definition;
16
(j) any other encounters with the marine environment while
17
engaging in any activity or operation covered by another
18
paragraph of this definition.
19
Note:
If an activity is prescribed by the regulations under paragraph (g) it is
20
an activity covered by paragraph (g) for the purposes of
21
paragraphs (h), (i) and (j). So, for example, an encounter with the
22
marine environment while engaging in an activity prescribed under
23
paragraph (g) is also a fishing-related activity.
24
5 After Division 9 of Part 3
25
Insert:
26
Division 9A--E-monitoring of fishing-related activity
27
40A Directions to classes of concession and permit holders
28
Directions power
29
(1) AFMA may make a written direction requiring any person who
30
holds a fishing concession, or a scientific permit, of a class
31
prescribed in the direction, to comply with:
32
(a) obligations that are prescribed in the direction relating to the
33
e-monitoring of fishing-related activity; or
34
E-monitoring Schedule 1
Main amendments Part 1
Fisheries Legislation Amendment Bill (No. 1) 2012 No. , 2012 5
(b) prescribed restrictions on engaging in fishing if any
1
obligation prescribed under paragraph (a) in the direction has
2
not been, or is not being, complied with.
3
Note:
See section 97A for offences relating to e-monitoring equipment and
4
e-monitoring data.
5
(2) Without limiting the operation of paragraph (1)(a), examples of
6
obligations that may be prescribed in a direction made under
7
subsection (1) include obligations relating to:
8
(a) installing, carrying, using, handling, maintaining or
9
monitoring the use of, prescribed e-monitoring equipment;
10
and
11
(b) the circumstances, times, places or methods for giving
12
AFMA e-monitoring data; and
13
(c) the circumstances, times, places or methods for giving
14
AFMA e-monitoring equipment on which e-monitoring data
15
is stored; and
16
(d) the circumstances, times, places or methods for giving
17
AFMA statements relating to e-monitoring data (including
18
statements about its circumstance, time, place or manner of
19
generation, transmission or storage); and
20
(e) the circumstances, times, places or methods for giving
21
AFMA statements relating to e-monitoring equipment
22
(including statements about its circumstance, time, place or
23
manner of installation, carriage, use, handling, maintenance
24
or monitoring of use).
25
(3) A direction made under subsection (1) must prescribe, in respect of
26
each prescribed obligation or restriction, a day, which is a
27
reasonable period after the direction is made, by which compliance
28
with the obligation or restriction must occur or commence.
29
Consultation and notification requirements for making directions
30
(4) Before making a direction under subsection (1) in relation to
31
fishing concessions or scientific permits that relate to a particular
32
fishery, AFMA must consult with:
33
(a) the management advisory committee for the fishery; or
34
(b) if there is no management advisory committee for the
35
fishery--the holders of fishing concessions or scientific
36
permits for the fishery.
37
Schedule 1 E-monitoring
Part 1 Main amendments
6 Fisheries Legislation Amendment Bill (No. 1) 2012 No. , 2012
(5) At least 7 days before a direction made under subsection (1) takes
1
effect, AFMA must ensure that a copy of the direction is sent to
2
each holder of a fishing concession or scientific permit to which
3
the direction relates.
4
(6) However, in an emergency:
5
(a) a direction may be made under subsection (1) without any
6
consultation; and
7
(b) subsection (5) does not apply in respect of the direction; and
8
(c) AFMA must ensure that a copy of the direction is sent to
9
each holder of a fishing concession or scientific permit to
10
which the direction relates as soon as possible.
11
Variation and revocation
12
(7) AFMA may, at any time, by a further direction in writing, vary or
13
revoke a direction made under subsection (1).
14
Note:
Requirements like those in subsections (4) and (5) do not apply in
15
relation to directions made under this subsection.
16
(8) If AFMA varies or revokes a direction made under subsection (1) it
17
must ensure that a copy of the direction made under subsection (7)
18
is sent to each holder of a fishing concession or scientific permit to
19
which the direction as varied or revoked, relates or related, as soon
20
as possible.
21
Directions are legislative instruments
22
(9) A direction made under subsection (1), or a variation or revocation
23
of such a direction, is a legislative instrument.
24
40B Directions to specific concession and permit holders
25
Directions power
26
(1) AFMA may, by written notice given to the holder of a fishing
27
concession or a scientific permit, direct the holder of the fishing
28
concession or scientific permit to comply with:
29
(a) obligations that relate to the e-monitoring of fishing-related
30
activity and that:
31
(i) are prescribed in the direction; and
32
E-monitoring Schedule 1
Main amendments Part 1
Fisheries Legislation Amendment Bill (No. 1) 2012 No. , 2012 7
(ii) are not inconsistent with an obligation prescribed in a
1
direction made under section 40A that the holder is
2
required to comply with; and
3
(b) prescribed restrictions on engaging in fishing if any
4
obligations prescribed under paragraph (a) in the direction
5
have not been, or are not being, complied with.
6
Note 1:
See section 97A for offences relating to e-monitoring equipment and
7
e-monitoring data.
8
Note 2:
For variation and revocation, see subsection 33(3) of the Acts
9
Interpretation Act 1901.
10
(2) Without limiting the operation of paragraph (1)(a), examples of
11
obligations that may be prescribed in a direction under
12
subsection (1) include obligations relating to:
13
(a) installing, carrying, using, handling, maintaining or
14
monitoring the use of, prescribed e-monitoring equipment;
15
and
16
(b) the circumstances, times, places or methods for giving
17
AFMA e-monitoring data; and
18
(c) the circumstances, times, places or methods for giving
19
AFMA e-monitoring equipment on which e-monitoring data
20
is stored; and
21
(d) the circumstances, times, places or methods for giving
22
AFMA statements relating to e-monitoring data (including
23
statements about its circumstance, time, place or manner of
24
generation, transmission or storage); and
25
(e) the circumstances, times, places or methods for giving
26
AFMA statements relating to e-monitoring equipment
27
(including statements about its circumstance, time, place or
28
manner of installation, carriage, use, handling, maintenance
29
or monitoring of use).
30
(3) A direction made under subsection (1) must prescribe, in respect of
31
each prescribed obligation or restriction, a day, which is a
32
reasonable period after the direction is made, by which compliance
33
with the obligation or restriction must occur or commence.
34
Directions are not legislative instruments
35
(4) A direction made under subsection (1) is not a legislative
36
instrument.
37
Schedule 1 E-monitoring
Part 1 Main amendments
8 Fisheries Legislation Amendment Bill (No. 1) 2012 No. , 2012
40C Conditions of fishing concessions and scientific permits
1
It is a condition of a fishing concession or scientific permit that the
2
holder of the concession or permit will comply with each
3
obligation and restriction that is validly prescribed in a direction in
4
force under this Division in relation to the concession or permit by
5
the day prescribed in the direction for compliance with that
6
obligation or restriction.
7
Note:
For offences relating to contravention of licence conditions, see
8
section 95.
9
6 After paragraph 77(e)
10
Insert:
11
(ea) e-monitoring by AFMA of fishing-related activity; and
12
7 After section 97
13
Insert:
14
97A E-monitoring equipment and e-monitoring data offences
15
E-monitoring equipment
16
(1) A person commits an offence if:
17
(a) the person engages in conduct; and
18
(b) the person does not have written authority from AFMA to
19
engage in the conduct; and
20
(c) the conduct directly or indirectly prevents or hinders the
21
operation of e-monitoring equipment installed, carried or
22
used in compliance with a condition of a fishing concession
23
or scientific permit.
24
Penalty: Imprisonment for 2 years or 250 penalty units, or both.
25
E-monitoring data
26
(2) A person commits an offence if:
27
(a) the person engages in conduct; and
28
(b) the person does not have written authority from AFMA to
29
engage in the conduct; and
30
(c) the conduct directly or indirectly results in modification of,
31
damage to, or destruction of, e-monitoring data.
32
E-monitoring Schedule 1
Main amendments Part 1
Fisheries Legislation Amendment Bill (No. 1) 2012 No. , 2012 9
Penalty: Imprisonment for 2 years or 250 penalty units, or both.
1
8 At the end of subsection 166(2)
2
Add:
3
; or (l) that, at a time or during a period specified in the certificate, a
4
person specified in the certificate was subject to a direction
5
under section 40A or 40B and that a document attached to the
6
certificate is a copy of the direction; or
7
(m) that, at a time or during a period specified in the certificate,
8
AFMA received e-monitoring data specified in the
9
certificate; or
10
(n) that, at a time or during a period specified in the certificate,
11
AFMA received e-monitoring equipment specified in the
12
certificate, on which e-monitoring data was stored; or
13
(o) that, at a time specified in the certificate, AFMA received a
14
statement provided in compliance with a condition of a
15
fishing concession or scientific permit and that a document
16
attached to the certificate is a copy of the statement.
17
9 Paragraph 168(2)(v)
18
After "information, including", insert "e-monitoring data and".
19
20
Schedule 1 E-monitoring
Part 2 Consequential amendments of the Fisheries Administration Act 1991
10 Fisheries Legislation Amendment Bill (No. 1) 2012 No. , 2012
Part 2--Consequential amendments of the Fisheries
1
Administration Act 1991
2
Fisheries Administration Act 1991
3
10 Subsection 4(1)
4
Insert:
5
e-monitoring data has the same meaning as in the Fisheries
6
Management Act 1991.
7
11 Paragraph 7(1)(gb)
8
After "information, including", insert "e-monitoring data and".
9
10
E-monitoring Schedule 1
Consequential amendments of the Fisheries Management Act 1991 Part 3
Fisheries Legislation Amendment Bill (No. 1) 2012 No. , 2012 11
Part 3--Consequential amendments of the Fisheries
1
Management Act 1991
2
Fisheries Management Act 1991
3
12 Subsection 22(3) (note)
4
After "sections", insert "40C,".
5
13 Subsection 32(5) (note)
6
After "sections", insert "40C,".
7
14 Subsection 33(3) (note)
8
Omit "section 42A", substitute "sections 40C and 42A".
9
15 Subsection 34(4) (note)
10
After "sections", insert "40C,".
11
12
Schedule 2 Closure etc. of fishery
12 Fisheries Legislation Amendment Bill (No. 1) 2012 No. , 2012
Schedule 2--Closure etc. of fishery
1
2
Fisheries Management Act 1991
3
1 After subsection 41A(2)
4
Insert:
5
(2AA) To avoid doubt, a direction given under subsection (2) in relation
6
to a part of a fishery may identify the part concerned in any way or
7
ways.
8
2 Subsections 41A(2A) and (2B)
9
Repeal the subsections, substitute:
10
(2A) At least 7 days before a direction given under subsection (2) takes
11
effect, AFMA must ensure that a copy of the direction is sent to
12
each holder of a fishing concession, scientific permit or foreign
13
master fishing licence in respect of the fishery, or part of the
14
fishery, to which the direction relates.
15
(2B) However, in an emergency:
16
(a) a direction may be given under subsection (2) without any
17
consultation; and
18
(b) subsection (2A) does not apply in respect of the direction;
19
and;
20
(c) AFMA must ensure that a copy of the direction is sent to
21
each holder of a fishing concession, scientific permit or
22
foreign master fishing licence in respect of the fishery, or part
23
of the fishery, to which the direction relates as soon as
24
possible.
25
3 At the end of subsection 41A(3)
26
Add:
27
Note:
Requirements like those in subsections (2) and (2A) do not apply in
28
relation to directions given under this subsection.
29
4 Subsection 41A(4)
30
Repeal the subsection, substitute:
31
Closure etc. of fishery Schedule 2
Fisheries Legislation Amendment Bill (No. 1) 2012 No. , 2012 13
(4) If AFMA varies or revokes a direction given under subsection (2)
1
it must ensure that a copy of the direction given under
2
subsection (3) is sent to each holder of a fishing concession,
3
scientific permit or foreign master fishing licence, in respect of the
4
fishery, or part of the fishery, to which the direction as varied or
5
revoked, relates or related, as soon as possible.
6
5 Subsection 41A(5)
7
Omit "disallowable instrument for the purposes of section 46A of the
8
Acts Interpretation Act 1901", substitute "legislative instrument".
9
6 Application of amendments made by items 1 to 5
10
The amendments made by items 1 to 5 of this Schedule apply in respect
11
of the following:
12
(a) a direction given on or after the commencement of this item;
13
(b) a variation or revocation on or after the commencement of
14
this item of a direction given on or after the commencement
15
of this item.
16
17
Schedule 3 Waiver of levy
14 Fisheries Legislation Amendment Bill (No. 1) 2012 No. , 2012
Schedule 3--Waiver of levy
1
2
Fisheries Management Act 1991
3
1 After subsection 113(1)
4
Insert:
5
(1A)
If:
6
(a) levy is due and payable in respect of a statutory fishing right
7
in respect of a period; and
8
(b) that statutory fishing right is surrendered before any fishing
9
activities are undertaken under the statutory fishing right
10
during that period;
11
AFMA may, on behalf of the Commonwealth, by written notice
12
given to the holder of the statutory fishing right, waive:
13
(c) the levy payable in respect of that statutory fishing right in
14
respect of the period; and
15
(d) if any amount is payable under section 112 in respect of that
16
levy--the amount so payable.
17
2 Application of amendment made by item 1
18
The amendment made by item 1 of this Schedule applies in relation to
19
levies that are due and payable on the commencement of that item and
20
levies that become due and payable after the commencement of that
21
item.
22
23
Conduct of directors etc. Schedule 4
Fisheries Legislation Amendment Bill (No. 1) 2012 No. , 2012 15
Schedule 4--Conduct of directors etc.
1
2
Fisheries Management Act 1991
3
1 Subsection 97(2)
4
Omit "servant", substitute "employee".
5
2 Section 164 (heading)
6
Repeal the heading, substitute:
7
164 Conduct of directors, employees and agents
8
3 Paragraph 164(1)(a)
9
Omit "servant", substitute "employee".
10
4 Paragraph 164(1)(a)
11
Omit "within the scope of his or her actual or apparent authority".
12
5 Paragraph 164(1)(b)
13
Omit "servant", substitute "employee".
14
6 Subsection 164(2)
15
Repeal the subsection, substitute:
16
(2) Any conduct engaged in by a director, employee or agent of a body
17
corporate is taken, for the purposes of a prosecution for an offence
18
against this Act, to have been engaged in also by the body
19
corporate unless the body corporate establishes that the body
20
corporate took reasonable precautions and exercised due diligence
21
to prevent the conduct.
22
(2A) For the purposes of subsection (2), in determining whether a body
23
corporate took reasonable precautions and exercised due diligence
24
to prevent conduct engaged in by a director, employee or agent of
25
the body corporate, the matters to which regard is to be had
26
include:
27
(a) any action the body corporate took to inform the director,
28
employee or agent of the legal obligations of the body
29
Schedule 4 Conduct of directors etc.
16 Fisheries Legislation Amendment Bill (No. 1) 2012 No. , 2012
corporate, director, employee or agent, in relation to the
1
conduct; and
2
(b) any action the body corporate took to ensure that those
3
obligations were understood and complied with by the
4
director, employee or agent; and
5
(c) when any such action was taken; and
6
(d) whether there were any other actions that the body corporate
7
could reasonably have taken that may have prevented the
8
conduct.
9
7 Paragraph 164(3)(a)
10
Omit "a servant", substitute "an employee".
11
8 Paragraph 164(3)(a)
12
Omit "within the scope of his or her actual or apparent authority".
13
9 Paragraph 164(3)(b)
14
Omit "servant", substitute "employee".
15
10 Subsection 164(4)
16
Repeal the subsection, substitute:
17
(4) Any conduct engaged in by an employee or agent of a person other
18
than a body corporate is taken, for the purposes of a prosecution
19
for an offence against this Act, to have been engaged in also by the
20
person unless the person establishes that the person took
21
reasonable precautions and exercised due diligence to prevent the
22
conduct.
23
(4A) For the purposes of subsection (4), in determining whether a
24
person took reasonable precautions and exercised due diligence to
25
prevent conduct engaged in by an employee or agent of the person,
26
the matters to which regard is to be had include:
27
(a) any action the person took to inform the employee or agent of
28
the legal obligations of the person, employee or agent, in
29
relation to the conduct; and
30
(b) any action the person took to ensure that those obligations
31
were understood and complied with by the employee or
32
agent; and
33
(c) when any such action was taken; and
34
Conduct of directors etc. Schedule 4
Fisheries Legislation Amendment Bill (No. 1) 2012 No. , 2012 17
(d) whether there were any other actions that the person could
1
reasonably have taken that may have prevented the conduct.
2
11 Paragraph 164(5)(b)
3
After "had", insert "not".
4
12 Application
5
(1)
The amendments made by items 4, 6, 8 and 10 of this Schedule apply in
6
relation to conduct that occurs on or after the commencement of those
7
items.
8
(2)
The amendment made by item 11 of this Schedule applies in relation to
9
convictions that occur on or after the commencement of that item.
10