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This is a Bill, not an Act. For current law, see the Acts databases.


FISHERIES LEGISLATION AMENDMENT BILL 2010

2008-2009
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Fisheries Legislation Amendment Bill
2009
No. , 2009
(Agriculture, Fisheries and Forestry)
A Bill for an Act to amend the law in relation to
fisheries, and for related purposes
i Fisheries Legislation Amendment Bill 2009 No. , 2009
Contents
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
1
3 Schedule(s)
........................................................................................
2
Schedule 1--Amendment of the Fisheries Management Act
1991
3
Schedule 2--Amendment of the Torres Strait Fisheries Act
1984
11
Fisheries Legislation Amendment Bill 2009 No. , 2009 1
A Bill for an Act to amend the law in relation 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
2009.
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 2009 No. , 2009
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. Schedules 1
and 2
The 28th day after this Act receives the
Royal Assent.
Note:
This table relates only to the provisions of this Act as originally
1
passed by both Houses of the Parliament and assented to. It will not be
2
expanded to deal with provisions inserted in this Act after assent.
3
(2) Column 3 of the table contains additional information that is not
4
part of this Act. Information in this column may be added to or
5
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repealed as set out in the applicable items in the Schedule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
Amendment of the Fisheries Management Act 1991 Schedule 1
Fisheries Legislation Amendment Bill 2009 No. , 2009 3
Schedule 1--Amendment of the Fisheries
1
Management Act 1991
2
3
1 Subsection 4(1)
4
Insert:
5
being investigated for a fisheries offence, in relation to the holder
6
of a fishing concession, means:
7
(a) AFMA is investigating whether the holder has committed a
8
fisheries offence; or
9
(b) a law enforcement agency has notified AFMA that the
10
agency is investigating whether the holder has committed a
11
fisheries offence; or
12
(c) the holder is charged with a fisheries offence.
13
2 Subsection 4(1)
14
Insert:
15
computer function notice has the meaning given by section 163D.
16
3 Subsection 4(1)
17
Insert:
18
defensive equipment has the meaning given by section 89A.
19
4 Subsection 4(1)
20
Insert:
21
electronic decision has the meaning given by section 163B.
22
5 Subsection 4(1)
23
Insert:
24
fisheries legislation means:
25
(a) this Act or the regulations; or
26
(b) another Act or regulations that are:
27
(i) administered by the Minister; and
28
(ii) prescribed under the regulations.
29
Schedule 1 Amendment of the Fisheries Management Act 1991
4 Fisheries Legislation Amendment Bill 2009 No. , 2009
6 Subsection 4(1)
1
Insert:
2
fisheries offence means:
3
(a) an offence against this Act or the regulations; or
4
(b) an offence against another Act that relates to a fishing
5
concession (including an offence for unlawfully obtaining a
6
fishing concession, for example).
7
7 Subsection 4(1)
8
Insert:
9
fishing concession certificate has the meaning given by
10
section 163E.
11
8 Subsection 4(1)
12
Insert:
13
law enforcement agency means a government body that has
14
responsibility for the enforcement of the laws of:
15
(a) the Commonwealth; or
16
(b) a State or Territory.
17
9 Subsection 4(1)
18
Insert:
19
lease, of a fishing right, means a temporary assignment of the
20
fishing right.
21
10 Subsection 22(7)
22
Repeal the subsection.
23
11 Subsection 32(1BA)
24
Repeal the subsection, substitute:
25
(1BA) After the commencement of this subsection, a boat may be
26
nominated under subsection (1A) or (1B) only if:
27
(a)
either:
28
(i) the boat's particulars are already registered on the
29
Fishing Permits Register; or
30
Amendment of the Fisheries Management Act 1991 Schedule 1
Fisheries Legislation Amendment Bill 2009 No. , 2009 5
(ii) the boat is an Australian boat; and
1
(b) the acceptance of the nomination would not be contrary to:
2
(i) a condition of the permit; or
3
(ii) the regulations; and
4
(c) for the purposes of a permit to fish in a specified fishery on
5
the high seas--the boat is an Australian-flagged boat.
6
12 Subsections 32(9A) and (10)
7
Repeal the subsections.
8
13 At the end of Division 5 of Part 3
9
Add:
10
32A Transfer of fishing permits
11
(1) This section is about the holder of a fishing permit transferring the
12
permit to another person.
13
(2) The holder of the fishing permit must apply to AFMA, in the
14
approved form, to register the transfer.
15
(3) The transfer takes effect when AFMA registers the transfer.
16
(4) AFMA must register the transfer unless:
17
(a) the fishing permit is suspended under section 38; or
18
(b) the holder of the fishing permit:
19
(i) is being investigated for a fisheries offence; or
20
(ii) has been convicted of a fisheries offence; or
21
(c) a levy on the fishing permit that is due has not been paid; or
22
(d) other circumstances that are prescribed under the regulations
23
exist.
24
(5) Subsection (4) applies despite the fact that a requirement in a plan
25
of management relating to the transfer has not been satisfied.
26
(6) This section does not apply to a fishing permit that is stated to be
27
non-transferable.
28
14 Subsection 33(7A)
29
Repeal the subsection.
30
Schedule 1 Amendment of the Fisheries Management Act 1991
6 Fisheries Legislation Amendment Bill 2009 No. , 2009
15 Subsection 34(10A)
1
Repeal the subsection.
2
16 Subsection 40(6A)
3
Repeal the subsection.
4
17 Subsection 46(4)
5
Omit "subsection (4C)", substitute "subsections (4C) and (4D)".
6
18 After subsection 46(4C)
7
Insert:
8
(4D) AFMA must register a lease, or transfer of ownership, of a fishing
9
right unless:
10
(a) the fishing right is suspended under section 38; or
11
(b) the holder of the fishing right:
12
(i) is being investigated for a fisheries offence; or
13
(ii) has been convicted of a fisheries offence; or
14
(c) a levy on the fishing right that is due has not been paid; or
15
(d) other circumstances that are prescribed under the regulations
16
exist.
17
(4E) Subsection (4D) applies despite the fact that any requirement in a
18
plan of management relating to the lease, or transfer, has not been
19
satisfied.
20
19 Section 49
21
Repeal the section.
22
20 After section 89
23
Insert:
24
89A Defensive equipment
25
(1) This section is about defensive equipment.
26
(2)
Defensive equipment is:
27
(a) a bulletproof vest; or
28
(b) an extendible baton; or
29
(c)
handcuffs;
or
30
Amendment of the Fisheries Management Act 1991 Schedule 1
Fisheries Legislation Amendment Bill 2009 No. , 2009 7
(d) other equipment prescribed under the regulations.
1
(3) The CEO may authorise an officer to be issued with, carry, use and
2
store defensive equipment if the CEO considers:
3
(a) it is reasonably necessary for the officer to use the equipment
4
in order to perform functions or exercise powers under this
5
Act; and
6
(b) the officer has received adequate training in the effective,
7
lawful and safe carriage, use and storage of defensive
8
equipment.
9
(4) The CEO may make the authorisation subject to conditions.
10
(5) The officer may use the defensive equipment if the officer
11
considers it is reasonably necessary to do so in order to perform
12
functions or exercise powers under this Act or the regulations,
13
subject to:
14
(a) any conditions in the CEO's authorisation; and
15
(b)
section
87J.
16
(6) A person commits an offence if:
17
(a) the person has been issued with defensive equipment; and
18
(b) the person stops being an officer; and
19
(c) the person does not, as soon as practicable, return the
20
defensive equipment to the CEO.
21
Penalty: 2 penalty units.
22
(7) Subsection (6) does not apply if the person has a reasonable excuse
23
for not returning the defensive equipment to the CEO as soon as
24
practicable.
25
Note:
A defendant bears an evidential burden in relation to the matter in
26
subsection (7): see subsection 13.3(3) of the Criminal Code.
27
(8) An offence against subsection (6) is an offence of strict liability.
28
Note:
For strict liability, see section 6.1 of the Criminal Code.
29
21 Before section 163
30
Insert:
31
Schedule 1 Amendment of the Fisheries Management Act 1991
8 Fisheries Legislation Amendment Bill 2009 No. , 2009
Division 1--Electronic decision-making
1
163A What this Division is about
2
This Division is about AFMA using a computer program to make
3
certain decisions.
4
163B Electronic decision-making
5
(1) AFMA may approve a computer program, which is under AFMA's
6
control, to be used to make a decision under:
7
(a) section 32; or
8
(b) section 32A; or
9
(c) section 46; or
10
(d) section 91; or
11
(e) a plan of management; or
12
(f) another provision of the fisheries legislation that is prescribed
13
under the regulations.
14
(2) While the approval is in force, the outcome of the use of the
15
computer program (an electronic decision) is taken to be:
16
(a) a decision; and
17
(b) a decision made by AFMA.
18
(3) AFMA's approval must be made in writing.
19
(4) An approval made under this section is not a legislative instrument.
20
163C Replacing an electronic decision
21
(1) This section applies if AFMA is satisfied that an electronic
22
decision that was made by a computer program was made at a time
23
when the computer program was not functioning correctly.
24
(2) A computer program is not functioning correctly if the electronic
25
decision that was made by the computer program is not the same as
26
the decision that AFMA would have made if an employee of
27
AFMA had made the decision.
28
Example: A computer program may not be functioning correctly because of a
29
computer virus or because of a typographical error that was made
30
when data was entered into the computer.
31
Amendment of the Fisheries Management Act 1991 Schedule 1
Fisheries Legislation Amendment Bill 2009 No. , 2009 9
(3) AFMA may revoke the electronic decision and replace it with the
1
decision that AFMA would have made if an employee of AFMA
2
had made the decision.
3
(4) AFMA may do so:
4
(a) on its own initiative; or
5
(b) on the written application of the applicant who had sought
6
the electronic decision.
7
(5) If AFMA revokes an electronic decision after AFMA has notified
8
the applicant about the electronic decision, AFMA must, as soon as
9
practicable after revoking the electronic decision, give to the
10
applicant a written notice that states:
11
(a) that the electronic decision has been revoked; and
12
(b) the reasons for revoking the electronic decision; and
13
(c) the new decision.
14
163D Evidence of whether computer is functioning correctly
15
(1) In any proceedings, a computer function notice is prima facie
16
evidence of the matters that are stated in the notice.
17
(2)
A
computer function notice is a document that:
18
(a) is, or is purported to be, signed by the CEO; and
19
(b) states whether or not a specified computer program was
20
functioning correctly:
21
(i) in relation to a specified electronic decision; and
22
(ii) at a specified time or during a specified period.
23
(3) A computer program is functioning correctly if an electronic
24
decision that the computer program makes is the same as the
25
decision that AFMA would have made if an employee of AFMA
26
had made the decision.
27
163E Return of fishing concession certificate not necessary
28
(1) This section applies if a plan of management requires the holder of
29
a fishing concession to return the fishing concession certificate to
30
AFMA.
31
Schedule 1 Amendment of the Fisheries Management Act 1991
10 Fisheries Legislation Amendment Bill 2009 No. , 2009
(2)
The
fishing concession certificate is the certificate that AFMA
1
issued to the holder of the fishing concession as evidence of the
2
grant of the fishing concession.
3
(3) The holder of the fishing concession is no longer required to return
4
the fishing concession certificate to AFMA.
5
Division 2--Other miscellaneous provisions
6
22 Subsection 165(1) (definition of relevant decision)
7
Omit "49 or".
8
9
Amendment of the Torres Strait Fisheries Act 1984 Schedule 2
Fisheries Legislation Amendment Bill 2009 No. , 2009 11
Schedule 2--Amendment of the Torres Strait
1
Fisheries Act 1984
2
3
1 Subsection 3(1)
4
Insert:
5
commercial fisher means the holder of a commercial fishing
6
licence.
7
2 Subsection 3(1)
8
Insert:
9
commercial fishing licence means a licence that is in force under
10
subsection 19(2) or (4).
11
3 Subsection 3(1)
12
Insert:
13
fish receiver licence means a licence that is in force under
14
subsection 19(4B).
15
4 Section 46AA
16
Repeal the section, substitute:
17
46AA Offences relating to a fish receiver licence
18
(1) This section relates to fish taken from:
19
(a) the Protected Zone; or
20
(b) an area of waters that is declared under subsection 15(1).
21
(2) A person commits an offence if:
22
(a) the person receives fish directly from another person; and
23
(b) the fish were taken by the other person in circumstances that
24
required the person to hold a commercial fishing licence, or a
25
Treaty endorsement; and
26
(c) the person intends:
27
(i) to process the fish, other than for personal consumption
28
or use; or
29
(ii) to sell the fish; and
30
Schedule 2 Amendment of the Torres Strait Fisheries Act 1984
12 Fisheries Legislation Amendment Bill 2009 No. , 2009
(d) the person does not hold a licence that allows the person to
1
receive fish under this Act.
2
Penalty: 50 penalty units.
3
(3) A person receives fish directly from another person if the person
4
receives the fish from:
5
(a) the other person; or
6
(b) someone else who has been engaged by the other person to
7
transport the fish to the person.
8
(4) A person commits an offence if:
9
(a) the person holds a fish receiver licence; and
10
(b) the person receives fish from someone who is not a
11
commercial fisher; and
12
(c) the person intends:
13
(i) to process the fish, other than for personal consumption
14
or use; or
15
(ii) to sell the fish.
16
Penalty: 50 penalty units.
17

 


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