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FISHERIES LEGISLATION AMENDMENT (INTERNATIONAL OBLIGATIONS AND OTHER MATTERS) BILL 2005

2004-2005
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Fisheries Legislation Amendment
(International Obligations and Other
Matters) Bill 2005
No. , 2005
(Agriculture, Fisheries and Forestry)
A Bill for an Act to amend legislation about
fisheries, and for related purposes
i Fisheries Legislation Amendment (International Obligations and Other Matters) Bill 2005
No. , 2005
Contents
1
Short title ......................................................................................1
2
Commencement .............................................................................1
3
Schedule(s)....................................................................................3
Schedule 1--Amendments
4
Part 1--Main amendments
4
Fisheries Administration Act 1991
4
Fisheries Management Act 1991
4
Part 2--Contingent amendments
27
Fisheries Management Act 1991
27
Migration Act 1958
28
Fisheries Legislation Amendment (International Obligations and Other Matters) Bill 2005
No. , 2005 1
A Bill for an Act to amend legislation about
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
5
(International Obligations and Other Matters) Act 2005.
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 (International Obligations and Other Matters) Bill
2005 No. , 2005
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 on which this Act receives the
Royal Assent.
2. Schedule 1,
items 1 to 4
The day after this Act receives the Royal
Assent.
3. Schedule 1,
item 5
A single day to be fixed by Proclamation.
However, if any of the provision(s) do not
commence within the period of 2 years
beginning on the day on which this Act
receives the Royal Assent, the provisions are
repealed on the first day after the end of that
period.
4. Schedule 1,
items 6 to 23
The day after this Act receives the Royal
Assent.
5. Schedule 1,
items 24 to 33
At the same time as the provision(s) covered
by table item 3.
6. Schedule 1,
items 34 to 36
The day after this Act receives the Royal
Assent.
7. Schedule 1,
items 37 to 41
At the same time as the provision(s) covered
by table item 3.
8. Schedule 1,
items 42 to 47
The day after this Act receives the Royal
Assent.
9. Schedule 1,
items 48 to 58
The later of:
(a) immediately after the commencement of
Part 2 of Schedule 1 to the Border
Protection Legislation Amendment
(Deterrence of Illegal Foreign Fishing)
Act 2005; and
(b) immediately after the commencement of
the provision(s) covered by table item 3.
However, the provision(s) do not commence
at all unless both of the events mentioned in
paragraphs (a) and (b) occur.
Fisheries Legislation Amendment (International Obligations and Other Matters) Bill 2005
No. , 2005 3
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
10. Schedule 1,
item 59
The later of:
(a) immediately after the commencement of
Part 1 of Schedule 2 to the Border
Protection Legislation Amendment
(Deterrence of Illegal Foreign Fishing)
Act 2005; and
(b) immediately after the commencement of
the provision(s) covered by table item 3.
However, the provision(s) do not commence
at all unless both of the events mentioned in
paragraphs (a) and (b) occur.
Note:
This table relates only to the provisions of this Act as originally
1
passed by the Parliament and assented to. It will not be expanded to
2
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
Schedule 1 Amendments
Part 1 Main amendments
4 Fisheries Legislation Amendment (International Obligations and Other Matters) Bill
2005 No. , 2005
1
Schedule 1--Amendments
2
Part 1--Main amendments
3
Fisheries Administration Act 1991
4
1 After paragraph 7(1)(ga)
5
Insert:
6
(gb) to disclose, or to authorise a prescribed agency within the
7
meaning of subsection (4) to disclose on its behalf,
8
information relating to fishing activities that may involve a
9
breach of the laws of Australia or of a foreign country,
10
including personal information relating to the fishing activities
11
of individuals that may involve such a breach;
12
2 At the end of section 7
13
Add:
14
(3) In disclosing information in the course of an activity referred to in
15
paragraph (1)(g), (ga), (gb) or (ma), or in authorising the disclosure
16
of such information, the Authority may require that the information:
17
(a) not be disclosed by the body to which it is provided; or
18
(b) be disclosed only for such purposes, and on such conditions,
19
as the Authority specifies.
20
(4) An agency is a prescribed agency for the purposes of
21
paragraph (1)(gb) if:
22
(a) it is an agency within the meaning of section 7 of the Public
23
Service Act 1999; and
24
(b) it is declared by the regulations to be a prescribed agency for
25
the purposes of that paragraph.
26
Fisheries Management Act 1991
27
3 Subsection 4(1)
28
Insert:
29
Amendments Schedule 1
Main amendments Part 1
Fisheries Legislation Amendment (International Obligations and Other Matters) Bill 2005
No. , 2005 5
Convention area has the same meaning as in Article 3 of the
1
WCPFC.
2
4 Subsection 4(1)
3
Insert:
4
party to the WCPFC includes a fishing entity that has agreed to be
5
bound by the regime established by the WCPFC in accordance with
6
the provisions of Annex I to the WCPFC.
7
5 Subsection 4(1) (definition of seriously violate)
8
Repeal the definition, substitute:
9
seriously violate:
10
(a) in relation to an Australian regional management measure in
11
relation to a boat--has the meaning given by subsection
12
87E(4); and
13
(b) in relation to a WCPFC conservation and management
14
measure in relation to a boat--has the meaning given by
15
subsection 87FC(5).
16
6 Subsection 4(1)
17
Insert:
18
WCPFC means the Convention on the Conservation and
19
Management of Highly Migratory Fish Stocks in the Western and
20
Central Pacific Ocean done at Honolulu on 5 September 2000.
21
Note:
The English text of the Convention is set out in the Australian Treaty
22
Series at [2004] ATS 15. In 2005 this was available in the Australian
23
Treaties Library of the Department of Foreign Affairs and Trade,
24
accessible on the Internet through that Department's world-wide web
25
site.
26
7 Subsection 4(1)
27
Insert:
28
WCPFC boat means a boat registered under the laws of a foreign
29
country that is a party to the WCPFC.
30
8 Subsection 4(1)
31
Insert:
32
Schedule 1 Amendments
Part 1 Main amendments
6 Fisheries Legislation Amendment (International Obligations and Other Matters) Bill
2005 No. , 2005
WCPFC conservation and management measure means a
1
measure that is:
2
(a) established by the Commission as defined in the WCPFC to
3
conserve or manage one or more WCPFC fish stocks in all or
4
a part of the Convention area; and
5
(b) set out in regulations made for the purposes of this definition.
6
9 Subsection 4(1)
7
Insert:
8
WCPFC fish stock means any stock of highly migratory fish of a
9
species listed in Annex I to the United Nations Convention on the
10
Law of the Sea, except sauries.
11
Note:
The English text of the Convention is set out in the Australian Treaty
12
Series at [1994] ATS 31. In 2005 this was available in the Australian
13
Treaties Library of the Department of Foreign Affairs and Trade,
14
accessible on the Internet through that Department's world-wide web
15
site.
16
10 Subsection 10(2)
17
After "law of a State or Territory relating to", insert "fish or".
18
11 Paragraph 10(2)(c)
19
After " fishing permit", insert "by prohibiting such landing or"
20
12 At the end of section 10
21
Add:
22
(4) The reference in paragraph 10(2)(c) to prohibiting the landing in a
23
State or Territory of fish taken under a statutory fishing right or
24
fishing permit includes a reference to:
25
(a) directly prohibiting the landing of such fish in the State or
26
Territory; or
27
(b) directly prohibiting or regulating the possession or processing
28
of, or other dealing with, such fish in the State or Territory in
29
any respect that would be likely to substantially discourage
30
the landing of such fish in the State or Territory.
31
(5) For the avoidance of doubt, the reference in subsection (2) to a law
32
of a State or Territory relating to fish or fishing does not include
33
Amendments Schedule 1
Main amendments Part 1
Fisheries Legislation Amendment (International Obligations and Other Matters) Bill 2005
No. , 2005 7
such a law that is for the protection of public health, for ensuring
1
safety or for any similar objective.
2
13 Paragraph 17(5)(c)
3
Repeal the paragraph, substitute:
4
(c) performance criteria against which, and time frames within
5
which, the measures taken under the plan of management may
6
be assessed.
7
14 After subsection 17(5)
8
Insert:
9
(5AA) The objectives to be set out under paragraph (5)(a) must be
10
consistent with, but are not limited to, the objectives set out in
11
section 3.
12
15 Subparagraphs 17(6)(d)(ii) and (iii)
13
Repeal the subparagraphs, substitute:
14
(ii) the calling of tenders; and
15
16 Paragraphs 23(1)(b) and (c)
16
Repeal the paragraphs, substitute:
17
(b) the calling of tenders in respect of the grant;
18
17 Paragraph 25(b)
19
Omit ", tender or ballot", substitute "or tender".
20
18 Subsection 28(1)
21
Omit ", tender or ballot", substitute "or tender,".
22
19 Paragraph 28(2)(c)
23
Repeal the paragraph.
24
20 Paragraph 28(2)(d)
25
Omit "or a ballot conducted".
26
21 Subsection 29(2)
27
Omit ", or a ballot conducted,".
28
Schedule 1 Amendments
Part 1 Main amendments
8 Fisheries Legislation Amendment (International Obligations and Other Matters) Bill
2005 No. , 2005
22 Subsection 38(2)
1
Omit "subsection (3)", substitute "subsections (3) and (3A)".
2
23 After subsection 38(3)
3
Insert:
4
(3A) If:
5
(a) a serious violation of a WCPFC conservation and
6
management measure has led to the imposition on the holder
7
of a fishing concession of sanctions by Australia or a foreign
8
country; and
9
(b) those sanctions have not been complied with;
10
AFMA may, by written notice given to the holder of the concession,
11
suspend the fishing concession until the sanctions are fully complied
12
with.
13
24 Before section 83
14
Insert:
15
Subdivision A--General surveillance and enforcement powers of
16
officers
17
25 After section 87
18
Insert:
19
Subdivision B--Surveillance and enforcement powers of officers
20
concerning FSA boats
21
26 After section 87F
22
Insert:
23
Amendments Schedule 1
Main amendments Part 1
Fisheries Legislation Amendment (International Obligations and Other Matters) Bill 2005
No. , 2005 9
Subdivision C--Surveillance and enforcement powers of officers
1
concerning WCPFC boats
2
87FA Officers' powers: WCPFC boat illegally fishing on the high
3
seas
4
(1) The provisions of section 84 listed in the table (and the other
5
provisions of that section so far as they relate to the listed
6
provisions) apply, with the modifications (if any) set out in the
7
table, to:
8
(a) a WCPFC boat equipped for fishing that is on the high seas in
9
a part of the Convention area covered by a WCPFC
10
conservation and management measure; and
11
(b) the master of the boat; and
12
(c) a person on the boat; and
13
(d) a thing on the boat.
14
15
Provisions of section 84 applying to WCPFC boats on high seas
Item
Applied provision
Modifications
1
Paragraph
84(1)(aa)
None
2
Paragraph 84(1)(a)
Applies as if:
(a) the reference to a boat in the AFZ were a
reference to a WCPFC boat equipped for fishing
that is on the high seas in a part of the
Convention area covered by a WCPFC
conservation and management measure; and
(b) the reference to an offence against this Act were a
reference to an offence against section 105H or
105I
3
Paragraph 84(1)(c)
None
4
Paragraph 84(1)(fa)
Applies as if it allowed the officer to require the
master of a boat to give the officer such help as the
officer reasonably requires for the purpose of
measuring equipment, regardless of whether a
fishing concession is in force
Schedule 1 Amendments
Part 1 Main amendments
10 Fisheries Legislation Amendment (International Obligations and Other Matters) Bill
2005 No. , 2005
Provisions of section 84 applying to WCPFC boats on high seas
Item
Applied provision
Modifications
5
Paragraph 84(1)(g)
Applies as if:
(a) the reference to subsection (1A) included a
reference to section 87FC; and
(b) a reference to contravention of this Act were a
reference to an offence against section 105H or
105I
6
Paragraph 84(1)(j)
Applies:
(a) subject to section 87FC; and
(b) as if a reference to an offence against this Act
were a reference to an offence against
section 105H or 105I
7
Paragraph 84(1)(k)
Applies:
(a) subject to section 87FC; and
(b) as if a reference to contravention of this Act were
a reference to an offence against section 105H or
105I; and
(c) as if subparagraph 84(1)(k)(i) were omitted; and
(d) as if the reference in subparagraph 84(1)(k)(ii) to
such a place included a reference to a port in a
foreign country
8
Paragraph 84(1)(l)
Applies:
(a) subject to section 87FC; and
(b) as if the reference to a place in Australia included
a reference to a port in a foreign country
9
Paragraph 84(1)(m)
Applies:
(a) subject to section 87FC; and
(b) as if a reference to contravention of this Act were
a reference to an offence against section 105H or
105I; and
(c) as if the reference to a place in Australia included
a reference to a port in a foreign country
10
Paragraph 84(1)(n)
Applies as if a reference to a fishing concession
included a reference to an authorisation (however
described) by a foreign country to use the boat for
fishing on the high seas
11
Paragraph 84(1)(o)
None
Amendments Schedule 1
Main amendments Part 1
Fisheries Legislation Amendment (International Obligations and Other Matters) Bill 2005
No. , 2005 11
Provisions of section 84 applying to WCPFC boats on high seas
Item
Applied provision
Modifications
12
Paragraph 84(1)(p)
Applies as if there were a fishing concession under
this Act in force in relation to the boat
13
Paragraph 84(1)(q)
Applies as if a reference to contravention of this Act
were a reference to an offence against section 105H
or 105I
14
Paragraph 84(1)(r)
Applies as if a reference to an offence against this
Act were a reference to an offence against
section 105H or 105I
15
Subsection 84(1A)
Applies as if the reference to the owner of the boat
were a reference to the master of the boat at the time
the officer believes the offence against section 105H
or 105I occurred
Note:
Section 87FD imposes certain requirements if an officer exercises
1
powers on a WCPFC boat under section 84 as applied by this section.
2
(2) This section does not limit the extra-territorial operation that
3
section 84 has apart from this section, except in relation to offences
4
against section 105H or 105I.
5
87FB Officers' powers: WCPFC boat in Australian waters
6
WCPFC boats that have been fishing on the high seas
7
(1) This section operates in relation to a WCPFC boat in the AFZ,
8
Australia or an external Territory, but only if:
9
(a) the WCPFC boat is equipped for fishing; and
10
(b) an officer has reasonable grounds to believe that the boat is on
11
a fishing trip; and
12
(c) the officer has reasonable grounds to believe that, in the
13
course of the fishing trip:
14
(i) the boat has been used on the high seas in contravention
15
of a WCPFC conservation and management measure;
16
and
17
(ii) the boat entered the AFZ after the contravention.
18
Note:
Sections 105H and 105I make it an offence to use a WCPFC boat in
19
certain areas of the high seas in contravention of a WCPFC
20
conservation and management measure.
21
Schedule 1 Amendments
Part 1 Main amendments
12 Fisheries Legislation Amendment (International Obligations and Other Matters) Bill
2005 No. , 2005
Officers' powers
1
(2) Subsection 87FA(1) applies in relation to the boat (and to its
2
master, a person on it and a thing on it) in the same way as it
3
applies to a boat, master, person and thing described in paragraphs
4
87FA(1)(a), (b), (c) and (d).
5
Note 1:
This gives an officer the powers described in section 84 (as modified
6
by section 87FA) in relation to the boat, its master, a person on it and
7
a thing on it.
8
Note 2:
Section 87FD imposes certain requirements if an officer exercises
9
powers on a WCPFC boat under section 84 as applied by this section.
10
Modifications of powers
11
(3) However, subsection 87FA(1) applies as if the following paragraphs
12
in the column headed "Modifications" of the table in that subsection
13
were omitted:
14
(a) paragraph (a) in item 2 of the table;
15
(b) paragraph (c) in item 7 of the table.
16
Relationship with section 84
17
(4) This section does not prevent an officer from exercising powers
18
under section 84 as it applies of its own force, except in relation to a
19
contravention of, or offence against, section 105H or 105I.
20
87FC Limits on exercising certain powers in relation to WCPFC
21
boats
22
(1) An officer must not do any of the following unless the requirements
23
of subsection (2) are met:
24
(a) seize, detain or remove a thing that is, or is on, a WCPFC
25
boat under paragraph 84(1)(g) as it applies because of
26
section 87FA or 87FB; or
27
(b) detain under paragraph 84(1)(ia) a person whom the officer
28
has reasonable grounds to believe was on a WCPFC boat
29
when it was used in the commission of an offence against
30
section 105H or 105I; or
31
(c) take from one place to another under paragraph 84(1)(ib) a
32
person detained under paragraph 84(1)(ia) because an officer
33
had reasonable grounds to believe the person was on a
34
Amendments Schedule 1
Main amendments Part 1
Fisheries Legislation Amendment (International Obligations and Other Matters) Bill 2005
No. , 2005 13
WCPFC boat when it was used in the commission of an
1
offence against section 105H or 105I; or
2
(d) arrest without warrant a person on a boat under paragraph
3
84(1)(j) as it applies because of section 87FA or 87FB; or
4
(e) require the master of a WCPFC boat to remain in control of a
5
boat at a place in Australia or a Territory under subparagraph
6
84(1)(k)(i) as it applies because of section 87FB; or
7
(f) require the master of a WCPFC boat to bring the boat to a
8
place under subparagraph 84(1)(k)(ii) or paragraph 84(1)(l)
9
as it applies because of section 87FA or 87FB; or
10
(g) bring a WCPFC boat to a place under paragraph 84(1)(m) as
11
it applies because of section 87FA or 87FB.
12
(2) The requirements are that:
13
(a) an officer must believe on reasonable grounds that a person
14
has committed an offence against section 105H or 105I
15
involving the use of the boat; and
16
(b) an officer must have notified the appropriate authority of the
17
country of nationality of the boat of that belief; and
18
(c) either:
19
(i) the officer taking the action described in subsection (1)
20
must reasonably believe that the appropriate authority of
21
the country of nationality of the boat has authorised the
22
action (specifically or in general terms); or
23
(ii) the circumstances described in subsection (4) exist.
24
(3) If a notification referred to in paragraph (2)(b) is made by an
25
instrument, the instrument is not a legislative instrument.
26
(4) The circumstances are that:
27
(a) the country of nationality of the boat has not acted in
28
accordance with its international obligations arising from the
29
notification; and
30
(b) an officer has reasonable grounds to believe that a person has
31
seriously violated a WCPFC conservation and management
32
measure in relation to the boat.
33
Note:
Article 25 of the WCPFC requires the country of nationality of the
34
WCPFC boat to do certain things if it is notified.
35
Schedule 1 Amendments
Part 1 Main amendments
14 Fisheries Legislation Amendment (International Obligations and Other Matters) Bill
2005 No. , 2005
(5) A person seriously violates a WCPFC conservation and
1
management measure in relation to a boat if:
2
(a) the person commits an offence against section 105H or 105I
3
by:
4
(i) using the boat to fish; or
5
(ii) failing to maintain accurate records of fish taken using
6
the boat; or
7
(iii) failing to provide accurate information about fish taken,
8
carried, transhipped or processed using the boat; or
9
(iv) taking, carrying, transhipping or processing fish using
10
the boat without an authorisation (however described) to
11
do so; or
12
(v) taking, carrying, transhipping or processing more fish
13
using the boat than the person is authorised to do; or
14
(vi) changing or hiding the markings of the boat; or
15
(vii) a prescribed act or omission, or a prescribed series of
16
acts or omissions, relating to the boat; or
17
(b) the person conceals, tampers with or disposes of evidence of
18
an offence against section 105H or 105I involving the boat; or
19
(c) the person commits an offence relating to the boat against a
20
prescribed provision of this Act or the regulations.
21
(6) Subsection (1) does not limit an officer's power under paragraph
22
84(1)(ia) or (ib) in relation to a person if the officer has reasonable
23
grounds to believe that the person was on a WCPFC boat when it
24
was used in the commission of an offence against section 99, 100,
25
100A, 101, 101A or 101B.
26
Note:
Section 84A affects the officer's power in that situation.
27
87FD Procedures relating to exercise of powers on WCPFC boat
28
Overview
29
(1) This section applies if an officer on a WCPFC boat exercises
30
powers under section 84 as it applies because of section 87FA or
31
87FB.
32
Amendments Schedule 1
Main amendments Part 1
Fisheries Legislation Amendment (International Obligations and Other Matters) Bill 2005
No. , 2005 15
Showing documents to master
1
(2) When, or as soon as practicable after, an officer first exercises a
2
power on the boat relating to an offence against section 105H or
3
105I in relation to a WCPFC conservation and management
4
measure, an officer must show the master of the boat:
5
(a) a copy of the text of the measure; and
6
(b) a copy of the provisions of this Act and the regulations that
7
relate to the measure.
8
Giving notice to flag state for boat
9
(3) When, or as soon as practicable after, an officer first exercises a
10
power on the boat, an officer must give notice to the country of
11
nationality that an officer has boarded and is inspecting the boat.
12
Leaving quickly after finding no evidence
13
(4) The officer must leave the boat as soon as reasonably practicable
14
after exercising the powers on the boat and finding no evidence that
15
a person has seriously violated a WCPFC conservation and
16
management measure in relation to the boat.
17
Giving report of exercise of powers
18
(5) After one or more officers have finished exercising powers on the
19
boat, an officer must give the master and the country of nationality
20
of the boat a report of the exercise of the powers on the boat during
21
the period while one or more officers were on the boat.
22
Legislative instruments
23
(6) If a notice under subsection (3) or a report under subsection (5) is
24
made by an instrument, the notice or report is not a legislative
25
instrument.
26
Report to note master's statements
27
(7) A report under subsection (5) must include a note of any objection
28
or statement the master of the boat asked an officer to include in the
29
report.
30
Schedule 1 Amendments
Part 1 Main amendments
16 Fisheries Legislation Amendment (International Obligations and Other Matters) Bill
2005 No. , 2005
Minimising duplication
1
(8) This section does not require the master to be shown a document
2
more than once, or more than one notice or report to be given, in
3
relation to the exercise of a power or powers during the period for
4
which one or more officers are on the boat (even if the same officer
5
is not on the boat throughout the period).
6
Officers to comply with regulations
7
(9) The officer must comply with any other requirements prescribed by
8
the regulations in relation to the exercise of the powers.
9
27 Before section 87G
10
Insert:
11
Subdivision D--Miscellaneous provisions relating to
12
surveillance and enforcement powers of officers
13
28 Subsection 87H(1) (note)
14
Repeal the note, substitute:
15
Note 1:
If the officer discovers after boarding that the boat is in fact an FSA
16
boat, section 87B will apply section 84 to allow the officer to
17
exercise powers on the boat.
18
Note 2:
If the officer discovers after boarding that the boat is in fact a
19
WCPFC boat, section 87FA will apply section 84 to allow the officer
20
to exercise powers on the boat.
21
Note 3:
If the officer discovers after boarding that the boat is in fact an
22
Australian-flagged boat, section 87G will apply section 84 to allow
23
the officer to exercise powers on the boat.
24
29 Paragraph 87H(5)(b)
25
After "section 87F", insert "or 87FD".
26
30 Subsection 87H(5) (note)
27
Repeal the note, substitute:
28
Note 1:
Section 87F will require a report to be given to the master if the boat
29
is in fact an FSA boat (despite there having been reasonable grounds
30
to believe it was without nationality).
31
Amendments Schedule 1
Main amendments Part 1
Fisheries Legislation Amendment (International Obligations and Other Matters) Bill 2005
No. , 2005 17
Note 2:
Section 87FD will require a report to be given to the master if the
1
boat is in fact a WCPFC boat (despite there having been reasonable
2
grounds to believe it was without nationality).
3
31 Subsections 87J(1) and 88(1)
4
After "87D", insert ", 87FA, 87FB".
5
32 Subsection 88A(1)
6
Repeal the subsection, substitute:
7
(1) This section applies to an FSA boat, or a WCPFC boat, that is
8
under the control of an officer (the controlling officer) because of
9
the exercise of a power under section 84 by an officer (whether the
10
controlling officer or not) who is or has been investigating whether
11
the boat has been used in an offence against:
12
(a) in the case of an FSA boat--section 105E or 105F; or
13
(b) in the case of a WCPFC boat--section 105H or 105I.
14
33 Subsection 88A(4)
15
Omit "or 87D", substitute ", 87D, 87FA or 87FB".
16
Note:
The heading to section 88A is altered by inserting "and WCPFC boats" after "FSA
17
boats".
18
34 At the end of subsection 103(1B)
19
Add:
20
Note:
The defendant bears an evidential burden in relation to the matter in
21
subsection (1B). See subsection 13.3(3) of the Criminal Code.
22
35 Subsection 103(1A) (the subsection (1A) inserted by
23
item 208 of Schedule 1 to the Agriculture, Fisheries and
24
Forestry Legislation Amendment (Application of
25
Criminal Code) Act 2001)
26
Repeal the subsection.
27
36 After section 105A
28
Insert:
29
Schedule 1 Amendments
Part 1 Main amendments
18 Fisheries Legislation Amendment (International Obligations and Other Matters) Bill
2005 No. , 2005
105AA Person fishing for WCPFC fish stock on high seas without a
1
concession--strict liability
2
(1) A person is guilty of an offence if:
3
(a) the person uses a boat for fishing; and
4
(b) the fishing is for a WCPFC fish stock; and
5
(c) the boat is an Australian-flagged boat; and
6
(d) the boat is on the high seas in a part of the Convention area;
7
and
8
(e) the fishing is not authorised by a fishing concession.
9
(2) The offence is punishable on conviction by a fine of not more than
10
60 penalty units.
11
(3) An offence under this section is an offence of strict liability.
12
Note:
For strict liability, see section 6.1 of the Criminal Code.
13
105AB Person fishing for WCPFC fish stock on high seas without a
14
concession
15
(1) A person is guilty of an offence if:
16
(a) the person uses a boat for fishing; and
17
(b) the fishing is for a WCPFC fish stock; and
18
(c) the boat is an Australian-flagged boat; and
19
(d) the boat is on the high seas in a part of the Convention area;
20
and
21
(e) the fishing is not authorised by a fishing concession.
22
(2) The offence is punishable on conviction by a fine of not more than
23
500 penalty units.
24
37 Subsection 105D(1)
25
After "to the Fish Stocks Agreement", insert "or the WCPFC".
26
38 At the end of paragraph 105D(1)(c)
27
Add "or the WCPFC, as the case requires".
28
39 After subsection 105D(2)
29
Insert:
30
Amendments Schedule 1
Main amendments Part 1
Fisheries Legislation Amendment (International Obligations and Other Matters) Bill 2005
No. , 2005 19
Investigating breaches of WCPFC conservation and management
1
measures
2
(2A) On behalf of Australia, AFMA may authorise an authority of a
3
foreign country that is party to the WCPFC to investigate an alleged
4
contravention of a WCPFC conservation and management measure
5
involving an Australian-flagged boat if:
6
(a) an official of the foreign country has boarded the boat on the
7
high seas in a part of the Convention area; and
8
(b) the appropriate authority of the foreign country has notified
9
AFMA or Australia that the official has reasonable grounds
10
for believing that the boat has been used in contravention of
11
the WCPFC conservation and management measure; and
12
(c) AFMA is satisfied that the investigation will be carried out in
13
accordance with the WCPFC.
14
40 Subsection 105D(5)
15
Repeal the subsection, substitute:
16
Enforcement action
17
(5) On behalf of Australia, the Attorney-General may authorise in
18
writing an authority of a foreign country to take specified action to
19
enforce a law of the foreign country against a contravention of a
20
WCPFC conservation and management measure, or of another
21
regional management measure, on the high seas involving an
22
Australian-flagged boat if:
23
(a) AFMA has authorised an authority of the foreign country
24
under subsection (2) or (2A) to investigate the alleged
25
contravention; and
26
(b) the appropriate authority of the foreign country has
27
communicated the results of the investigation to Australia; and
28
(c) the Attorney-General is satisfied that the action will be taken
29
in accordance with:
30
(i) in the case of an alleged contravention of a WCPFC
31
conservation and management measure--the WCPFC;
32
and
33
Schedule 1 Amendments
Part 1 Main amendments
20 Fisheries Legislation Amendment (International Obligations and Other Matters) Bill
2005 No. , 2005
(ii) in the case of an alleged contravention of another
1
regional management measure--the Fish Stocks
2
Agreement.
3
41 Saving provision
4
Despite the repeal of subsection 105D(5) of the Fisheries Management
5
Act 1991, any authorisation given by the Attorney-General before the
6
repeal of that subsection continues in force as if it had been given by the
7
Attorney-General under subsection 105D(5) of that Act as amended by
8
this Act.
9
42 After section 105D
10
Insert:
11
Subdivision AA--Australian citizens fishing in foreign boats
12
beyond the AFZ
13
105DA Australian citizen fishing for WCPFC fish stock in foreign
14
waters--strict liability
15
(1) A person is guilty of an offence if:
16
(a) the person uses a boat for fishing; and
17
(b) the fishing is for a WCPFC fish stock; and
18
(c) the fishing contravenes a WCPFC conservation and
19
management measure; and
20
(d) the person is an Australian citizen; and
21
(e) the boat is a foreign boat; and
22
(f) the boat is in the Convention area in the exclusive economic
23
zone, territorial sea, archipelagic waters (as defined in the
24
United Nations Convention on the Law of the Sea) or internal
25
waters, of a foreign country; and
26
(g) the fishing is not authorised by an authorisation (however
27
described) issued under the law of the foreign country referred
28
to in paragraph (f).
29
Note:
The English text of the United Nations Convention on the Law of the
30
Sea is set out in the Australian Treaty Series at [1994] ATS 31. In
31
2005 this was available in the Australian Treaties Library of the
32
Department of Foreign Affairs and Trade, accessible on the Internet
33
through that Department's world-wide web site.
34
Amendments Schedule 1
Main amendments Part 1
Fisheries Legislation Amendment (International Obligations and Other Matters) Bill 2005
No. , 2005 21
(2) The offence is punishable on conviction by a fine of not more than
1
60 penalty units.
2
(3) An offence under this section is an offence of strict liability.
3
Note:
For strict liability, see section 6.1 of the Criminal Code.
4
(4) If the person has been convicted or acquitted in the foreign country
5
of an offence involving fishing, the person cannot be convicted of an
6
offence under this section involving the same fishing.
7
105DB Australian citizen fishing for WCPFC fish stock in foreign
8
waters
9
(1) A person is guilty of an offence if:
10
(a) the person uses a boat for fishing; and
11
(b) the fishing is for a WCPFC fish stock; and
12
(c) the fishing contravenes a WCPFC conservation and
13
management measure; and
14
(d) the person is an Australian citizen; and
15
(e) the boat is a foreign boat; and
16
(f) the boat is in the Convention area in the exclusive economic
17
zone, territorial sea, archipelagic waters (as defined in the
18
United Nations Convention on the Law of the Sea) or internal
19
waters, of a foreign country; and
20
(g) the fishing is not authorised by an authorisation (however
21
described) issued under the law of the foreign country referred
22
to in paragraph (f).
23
Note:
The English text of the United Nations Convention on the Law of the
24
Sea is set out in Australian Treaty Series at [1994] ATS 31. In 2005
25
this was available in the Australian Treaties Library of the
26
Department of Foreign Affairs and Trade, accessible on the Internet
27
through that Department's world-wide web site.
28
(2) The offence is punishable on conviction by a fine of not more than
29
500 penalty units.
30
(3) If the person has been convicted or acquitted in the foreign country
31
of an offence involving fishing, the person cannot be convicted of an
32
offence under this section involving the same fishing.
33
Schedule 1 Amendments
Part 1 Main amendments
22 Fisheries Legislation Amendment (International Obligations and Other Matters) Bill
2005 No. , 2005
105DC Australian citizen contravening conservation and
1
management measure on high seas--strict liability
2
(1) A person is guilty of an offence if:
3
(a) the person uses a boat for fishing; and
4
(b) the fishing is for a WCPFC fish stock; and
5
(c) the fishing contravenes a WCPFC conservation and
6
management measure; and
7
(d) the person is an Australian citizen; and
8
(e) the boat is a foreign boat other than a WCPFC boat; and
9
(f) the boat is on the high seas in a part of the Convention area.
10
(2) The offence is punishable on conviction by a fine of not more than
11
60 penalty units.
12
(3) An offence under this section is an offence of strict liability.
13
Note:
For strict liability, see section 6.1 of the Criminal Code.
14
105DD Australian citizen contravening conservation and
15
management measure on high seas
16
(1) A person is guilty of an offence if:
17
(a) the person uses a boat for fishing; and
18
(b) the fishing is for a WCPFC fish stock; and
19
(c) the fishing contravenes a WCPFC conservation and
20
management measure; and
21
(d) the person is an Australian citizen; and
22
(e) the boat is a foreign boat other than a WCPFC boat; and
23
(f) the boat is on the high seas in a part of the Convention area.
24
(2) The offence is punishable on conviction by a fine of not more than
25
500 penalty units.
26
43 At the end of Division 5A of Part 6
27
Add:
28
Amendments Schedule 1
Main amendments Part 1
Fisheries Legislation Amendment (International Obligations and Other Matters) Bill 2005
No. , 2005 23
Subdivision C--WCPFC boats on high seas
1
105H WCPFC boat contravening conservation and management
2
measure on high seas--strict liability
3
(1) A person is guilty of an offence if:
4
(a) the person uses a boat for fishing; and
5
(b) the fishing is for a WCPFC fish stock; and
6
(c) the fishing contravenes a WCPFC conservation and
7
management measure; and
8
(d) the boat is a WCPFC boat; and
9
(e) the boat is on the high seas in a part of the Convention area;
10
and
11
(f) the fishing is not authorised by an authorisation (however
12
described) issued under the law of the country of nationality
13
of the boat.
14
(2) The offence is punishable on conviction by a fine of not more than
15
60 penalty units.
16
(3) An offence under this section is an offence of strict liability.
17
Note:
For strict liability, see section 6.1 of the Criminal Code.
18
105I WCPFC boat contravening conservation and management
19
measure on high seas
20
(1) A person is guilty of an offence if:
21
(a) the person uses a boat for fishing; and
22
(b) the fishing is for a WCPFC fish stock; and
23
(c) the fishing contravenes a WCPFC conservation and
24
management measure; and
25
(d) the boat is a WCPFC boat; and
26
(e) the boat is on the high seas in a part of the Convention area;
27
and
28
(f) the fishing is not authorised by an authorisation (however
29
described) issued under the law of the country of nationality
30
of the boat.
31
Schedule 1 Amendments
Part 1 Main amendments
24 Fisheries Legislation Amendment (International Obligations and Other Matters) Bill
2005 No. , 2005
(2) The offence is punishable on conviction by a fine of not more than
1
500 penalty units.
2
105J Attorney-General's consent required for prosecution
3
(1) The Attorney-General's written consent is required before a charge
4
of an offence against this Subdivision can proceed to hearing or
5
determination.
6
(2) A consent under subsection (1) is not a legislative instrument.
7
(3) Before granting such a consent, the Attorney-General must take into
8
account any views expressed:
9
(a) by the government of the country of nationality of the boat
10
alleged to be involved in the offence; or
11
(b) by the fishing entity under the laws of which the boat alleged
12
to be involved in the offence is registered.
13
(4) Even though the Attorney-General has not granted such a consent,
14
the absence of consent is not to prevent or delay:
15
(a) the arrest of the suspected offender or proceedings relating to
16
the arrest (such as proceedings for the issue and execution of
17
a warrant); or
18
(b) the laying of a charge against the suspected offender; or
19
(c) proceedings for the extradition to Australia of the suspected
20
offender; or
21
(d) proceedings for remanding the suspected offender in custody
22
or on bail.
23
(5) If the Attorney-General declines to grant consent, the court in which
24
the suspected offender has been charged with the offence must
25
permanently stay proceedings on the charge.
26
(6) In any proceedings, an apparently genuine document purporting to
27
be a copy of a written consent granted by the Attorney-General in
28
accordance with this section will be accepted, in the absence of
29
proof to the contrary, as proof of such consent.
30
44 At the end of Division 6 of Part 6
31
Add:
32
Amendments Schedule 1
Main amendments Part 1
Fisheries Legislation Amendment (International Obligations and Other Matters) Bill 2005
No. , 2005 25
Subdivision G--Disclosures relating to illegal fishing activities
1
108B Minister may disclose information relating to illegal fishing
2
activities
3
(1) The Minister may disclose, or authorise a prescribed agency within
4
the meaning of subsection (3) to disclose on the Minister's behalf,
5
information relating to fishing activities that may involve a breach
6
of the laws of Australia or of a foreign country, including personal
7
information relating to the fishing activities of individuals that may
8
involve such a breach, to:
9
(a) the government of a foreign country; or
10
(b) an instrumentality of such a government; or
11
(c) an international intergovernmental body.
12
(2) In disclosing the information, or in authorising its disclosure, the
13
Minister may require that it:
14
(a) not be disclosed by the government, instrumentality or body to
15
which it is provided; or
16
(b) be disclosed only for such purposes, and on such conditions,
17
as the Minister specifies.
18
(3) An agency is a prescribed agency for the purposes of subsection (1)
19
if:
20
(a) it is an agency within the meaning of section 7 of the Public
21
Service Act 1999; and
22
(b) it is declared by the regulations to be a prescribed agency for
23
the purposes of that subsection.
24
45 Subsection 165(1) (definition of relevant decision)
25
Omit ", tender or ballot", substitute "or tender".
26
46 Paragraph 168(2)(i)
27
Omit "or 95", substitute ", 95 or 100".
28
47 After paragraph 168(2)(n)
29
Insert:
30
(na) providing for the use of systems for reporting the position of
31
Australian-flagged boats when on the high seas in a part of the
32
Schedule 1 Amendments
Part 1 Main amendments
26 Fisheries Legislation Amendment (International Obligations and Other Matters) Bill
2005 No. , 2005
Convention area for a purpose related to fishing for a WCPFC
1
fish stock; and
2
Amendments Schedule 1
Contingent amendments Part 2
Fisheries Legislation Amendment (International Obligations and Other Matters) Bill 2005
No. , 2005 27
1
Part 2--Contingent amendments
2
Fisheries Management Act 1991
3
48 Subsection 87FA(1) (after table item 2)
4
Insert:
5
6
2A
Paragraph
84(1)(aaa)
Applies as if:
(a) a reference to an offence against subsection 95(2)
or section 99, 100, 100A, 101 or 101A were a
reference to an offence against section 105H or
105I; and
(b) the reference to a foreign boat used as the support
boat in an offence against section 101B were
omitted; and
(c) subparagraph 84(1)(aaa)(v) were omitted
49 Paragraph 87FC(1)(b)
7
Omit "paragraph 84(1)(ia)", substitute "Schedule 1A".
8
50 Paragraph 87FC(1)(c)
9
Omit "paragraph 84(1)(ib) a person detained under paragraph 84(ia)",
10
substitute "Schedule 1A a person detained under that Schedule".
11
51 Subsection 87FC(6)
12
Omit "paragraph 84(1)(ia) or (ib)", substitute "Schedule 1A".
13
52 Subclause 8(1) of Schedule 1A
14
Omit "or 105F", substitute ", 105F, 105H or 105I".
15
53 Subclause 8(3) of Schedule 1A
16
Omit "section 87E", substitute "sections 87E and 87FC".
17
54 Subclause 8(3) of Schedule 1A (note)
18
Repeal the note, substitute:
19
Schedule 1 Amendments
Part 2 Contingent amendments
28 Fisheries Legislation Amendment (International Obligations and Other Matters) Bill
2005 No. , 2005
Note:
Sections 87E and 87FC set limits on the exercise of certain powers in
1
relation to FSA boats and WCPFC boats respectively.
2
55 Subclause 10(1) of Schedule 1A
3
Omit "or 105F", substitute ",105F, 105H or 105I".
4
56 Subclause 12(4) of Schedule 1A
5
Omit "section 87E", substitute "sections 87E and 87FC".
6
57 Subclause 12(4) of Schedule 1A (note)
7
Repeal the note, substitute:
8
Note:
Sections 87E and 87FC set limits on the exercise of certain powers in
9
relation to FSA boats and WCPFC boats respectively.
10
58 Subparagraph 15(2)(b)(i) of Schedule 1A
11
Omit "or 105F", substitute ",105F, 105H or 105I".
12
Migration Act 1958
13
59 Subsection 5(1) (paragraph (a) of the definition of
14
fisheries detention offence)
15
Repeal the paragraph, substitute:
16
(a) an offence against section 99, 100, 100A, 101, 101A, 101B,
17
105E, 105F, 105H or 105I of the Fisheries Management Act
18
1991; or
19

 


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