Commonwealth Numbered Regulations - Explanatory Statements

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FISHERIES MANAGEMENT AMENDMENT REGULATIONS 2005 (NO. 3) (SLI NO 294 OF 2005)

Explanatory Statement

Select Legislative Instrument 2005 No. 294

Fisheries Management Amendment Regulations 2005 (No. 3)

Issued by the Authority of the Minister for Fisheries Forestry and Conservation

Fisheries Management Act 1991

Fisheries Management Amendment Regulations 2005 (No. 3)

 

Subsection 168(1) of the Fisheries Management Act 1991 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed, in carrying out or giving effect to the Act. 

The Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Act 2005 (the Amendment Act) amended the Act, the Torres Strait Fisheries Act 1984 and the Migration Act 1958 to ensure that breaches of illegal foreign fishing offences can be managed with greater efficiency. 

The Amendment Act inserted a new Schedule 1A into the Act which contains provisions relating to the detention of foreign fishers suspected of offences under the Act.  Schedule 1A is almost identical to a new Schedule 2 inserted in the Torres Strait Fisheries Act 1984 and mirrors the provisions contained in the Migration Act 1958 in respect of unlawful non-citizens.  The powers and duties contained in Schedule 1A cover a range of situations including the detention of people suspected of committing an illegal foreign fishing offence, the searching and screening of detainees and the carrying out of identification tests on detainees.  This framework will provide a seamless transition between fisheries detention under either the Act or the Torres Strait Fisheries Act 1984 and subsequent detention and repatriation under the Migration Act 1958

The purpose of the Regulations is to amend the Fisheries Management Regulations 1992 (the Principal Regulations) to provide consistency in the management of fisheries offences and ensure that the same powers and rules apply whether a detainee is detained under the Act, or the Torres Strait Fisheries Act 1984, or as an unlawful non-citizen under the Migration Act 1958.  

The Regulations provide for:

·        the minimum training requirements for officers and detention officers who will exercise the new powers conferred by the Amendment Act;

·        the personal identifiers which may be obtained from non-citizens for the purposes of Part 5 of Schedule 1A in addition to those listed in Schedule 1A itself;

·        the types of personal identifiers that can be obtained from non-citizens in detention in addition to those listed in Schedule 1A itself;

·        the information that must be provided to non-citizens before an identification test is carried out for the purpose of obtaining a personal identifier;

·        the types of personal identifier which may not be provided by providing a video recording of an identification test;

·        the provision of video recordings to the Human Rights and Equal Opportunity Commission to enable that body to inquire into the operation of provisions of the Act relating to the carrying out of identification tests;

·        the Australian Government bodies which may be authorised by AFMA to disclose identifying information to certain foreign countries, certain bodies of those countries and certain international organisations.

·        bodies of foreign countries, of the Commonwealth and of the States and Territories and international organisations to which disclosures of identifying information may be authorised.

·        the Commonwealth agencies that may disclose information relating to illegal fishing activities on the Minister’s behalf. 

Details of the Regulations are set out in the Attachment.

Before regulation 19B may be made to prescribe additional personal identifiers (subclause 26(2) of Schedule 1A to the Act), the Minister must be satisfied that:

a)         obtaining the identifier would not involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914;

b)        the identifier is an image of, or a measurement or recording of, an external part of the body; and

c)         obtaining the identifier will promote one or more of the purposes referred in subclause 26(3) of Schedule 2, which are:

                     (a)  to assist in the identification of, and to authenticate the identity of, any non‑citizen who can be required under this Act to provide a personal identifier; and

                     (b)  to assist in identifying, in the future, any such non‑citizen; and

                     (c)  to enhance AFMA’s ability to identify non‑citizens who have a criminal history relating to fisheries; and

                     (d)  to combat document and identity fraud in fisheries matters; and

                     (e)  to complement anti‑people smuggling measures; and

                      (f)  to inform the governments of foreign countries of the identity of non‑citizens who have been detained under, or charged with offences against, this Act; and

                     (g)  to facilitate international cooperation to combat fishing activities that involve a breach of the laws of Australia or of a foreign country.

The Minister is so satisfied. 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

The Regulations commence on the day of registration.

The Regulations were drafted following consultation with the Department of Agriculture, Fishing and Forestry, the Department of Immigration, Multicultural and Indigenous Affairs and the Attorney General’s Department in accordance with section 4 of the Legislative Instruments Act 2003.

 


Attachment

Regulation 1 provides for the Regulations to be named the Fisheries Management Amendment Regulations 2005 (No. 3).

Regulation 2 provides for the Regulations to commence on registration.

Regulation 3 provides for Schedule 1 to amend the Principal Regulations.

Schedule 1 Item 1 inserts a new part, “Part 5A Detention of suspected illegal foreign fishers etc” after Part 5.  Part 5A includes new regulations 19A to 19L.

Division 1 - Training for authorised officers

New regulation 19A provides for the minimum training requirement for authorised officers for the purposes of subclause 6(1) of Schedule 1A to the Act.   New regulation 19A will ensure control is maintained over the training of officers authorised to use certain powers contained in the new Schedule 1A.  

All officers and detention officers will receive extensive training in their powers and responsibilities under the Fisheries Management Act 1991 (the FMA) and the Torres Strait Fisheries Act 1984 (the TSFA).  Authorised officers are a class of officers and detention officers who have powers and responsibilities over and above those of officers and detention officers.  Authorised officers have the power to

 

·        search a detainee (without a warrant) under clause 15; 

·        retain things found in a search under subclause 15(3);

·        conduct a screening procedure (without a warrant) under clause 16;

·        apply for further authorisation so as to conduct a strip search (without a warrant) under clause 17; 

·        retain things found in a screening procedure or a strip search under clause 19,

·        apply to a magistrate to retain for a further period, a thing found in a screen or a strip search under clause 20;

·        under clause 23, request that a person about to enter premises where a detainee is held to:

­          allow the inspection of  things in their possession;

­         remove their outer clothing such as a jacket;

­         remove items from their pockets, open a thing in their possession;

­         remove the contents of the things and allow the inspection of the things and their contents; and

­         leave a thing in a specified place (and collect it when they leave the premises);

·        require and carry out an identification test under clauses 28 and 29;

·        apply for further authorisation so as to use reasonable force in carrying out identification tests under clause 32;

·        request assistance from another authorised officer or officer or detention officer to carry out an identification test under clause 34; and

·        conduct a retest of an identification test under clause 38.

AFMA has designed additional training specifically for authorised officers in their powers and responsibilities under the FMA and the TSFAThe first three modules prescribed in the training course known as Authorised Officer Training are extracted from the Certificate III in Corrections, accredited by the Australian National Training Authority (ANTA) and adopted by the Department of Immigration, Multicultural and Indigenous Affairs (DIMIA) for the training of detention officers.  The fourth module provides training specific to AFMA and fisheries detention under the FMA and the TSFAThe course is expected to take four days.

Authorised Officer Training includes training on each of the powers of authorised officers under the new Schedule 1A.  The module “Conducting Searches” provides specific training in the use of hand held metal detectors; physical and dynamic security; conducting area searches, property searches and pat down searches and the grounds, preconditions and procedures for conducting a strip search. 

The module “Maintaining the Health, Safety and Welfare of Detainees” trains officers and detention officers in communication, cultural awareness, race relations, maintaining control whilst respecting beliefs and the management of special needs. 

The module “Controlling Persons by the Use of Empty-Hand Techniques” trains officers and detention officers to avoid physical confrontation, raise an alarm and restrain a detainee without the use of weapons.  The module also trains officers and detention officers in the appropriate use of force. 

The module “The Use of Authorised Officers’ Powers under the Fisheries Management Act 1991 and the Torres Strait Fisheries Act 1984” trains officers and detention officers who are to be authorised officers in their duties and responsibilities under the Act, for example, the rules for using certain powers, the appropriate use and storage of information, reporting procedures and the penalties and offences related to the potential misuse of their powers. 

Division 2 - Identifying detainees

New regulation 19B sets out additional personal identifiers which may be required for the purposes of the definition of ‘personal identifier’ in subclause 26(1) of Schedule 1A. These are a sample of a person’s handwriting and a photograph of a tattoo, scar or other identifying mark of a person but only if obtaining the photograph does not involve removing any of the person’s clothing or carrying out an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914.  The note to the regulation defines “intimate forensic procedures”. 

The Australian Government’s strong stance on foreign illegal fishing is widely known amongst foreign illegal fishers who have been detained.  In the past, fishers have purposely misled AFMA officials about their identity and their age.  It is vital that AFMA is able to adequately identify offenders to ensure that foreign illegal fishing can be deterred.

 

Under international law a person must not be imprisoned for a foreign fishing offence, however recidivists (repeat offenders) can be sentenced to a jail term as a result of breaching a good behaviour bond or defaulting on a fine imposed in a previous prosecution for foreign illegal fishing offences under the FMA or the TSFA.

 

Identifying foreign fishers who do not carry documentation and do not want to be identified is difficult.  The proposed Regulations will enable AFMA to use the technology and processes that have been conferred upon other border protection enforcement agencies, particularly DIMIA and Customs.

In an operational context it is necessary to have a range of personal identifiers to positively identify detainees.  In many situations, a combination of one or more identifiers is needed.

As ships masters are often charged with summary or indictable offences, it is not uncommon for a master to obscure his identity and ask another to step forward in his place.  In that instance, a sample of a person’s handwriting can be compared to a ships log in seeking to positively identify the master. 

A photograph of a tattoo, scar of other identifying is particularly useful as these markings are common amongst fisheries detainees, distinctive in location and pattern and not easily removed.  A photograph of a tattoo or scar would usefully replace fingerprints which cannot positively identify a detainee owing to calluses, scars or other deterioration of the skin.

New regulation 19C sets out the types of personal identifier a detainee must provide for identification purposes under paragraph 28(2)(e) of Schedule 1A.  These are an audio or video recording of the detainee (other than a video recording under clause 37 of Schedule 1A), iris scan of the detainee’s eyes, a sample of the detainee’s handwriting, a photograph of a tattoo, scar or other identifying mark of the detainee (but only if obtaining the photograph does not involve removing any of the detainee’s clothing or carrying out an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914) and an audio or videorecording of the detainee (other than a videorecording under clause 37 of Schedule 1A). 

 

When it is not possible to identify the master of a ship, the whole crew must be interviewed.  In these circumstances, an audio or video recording is particularly useful as it allows AFMA officers to review and compare crew statements and identification information.  An audio or video recording of a detainee (other than a video recording under clause 37 of Schedule 1A to the Act) will also assist AFMA in meeting its obligation to identify persons under the Part 1C of the Crimes Act 1914.  In that instance an audio or video recording of an interview with each crew member will assist in positively identifying detainees and ascertaining the true identity of the master.  

 

The Australian Government’s strong stance on foreign illegal fishing is widely known amongst foreign illegal fishers who have been detained.  In the past, fishers have purposely misled AFMA officials about their identity and even their age.  It is vital that AFMA is able to adequately identify offenders to ensure that foreign illegal fishing can be deterred.

 

Under international law, a person must not be imprisoned for a foreign fishing offence; however recidivists (repeat offenders) can be sentenced to a jail term as a result of breaching a good behaviour bond or defaulting on a fine imposed in a previous prosecution for foreign illegal fishing offences under the FMA or the TSFA.

 

Identifying foreign fishers who do not carry documentation and do not want to be identified is difficult.  The proposed Regulations will enable AFMA to use the technology and processes that have been conferred upon other border protection enforcement agencies, particularly DIMIA and Customs.

In an operational context it is necessary to have a range of personal identifiers to positively identify detainees.  In many situations, a combination of one or more identifiers is needed.

An iris scan of a non citizen’s eyes may be necessary where finger prints cannot be taken.  Iris scanning technology provides a unique, reliable and portable personal identifier particularly useful for identifying detainees on ships and in remote locations around the Australian coast.

As ships masters are often charged with summary or indictable offences, it is not uncommon for a master to obscure his identity and ask another to step forward in his place.  In that instance, a sample of a person’s handwriting can be compared to a ships log in seeking to positively identify the master. 

A photograph of a tattoo, scar of other identifying is particularly useful as these markings are common amongst fisheries detainees, distinctive in location and pattern and not easily removed.  A photograph of a tattoo or scar would usefully replace fingerprints which cannot positively identify a detainee owing to calluses, scars or other deterioration of the skin.

When it is not possible to identify the master of a ship, the whole crew must be interviewed.  In these circumstances, an audio or video recording is particularly useful as it allows AFMA officers to review and compare crew statements and identification information.  An audio or video recording of a detainee (other than a video recording under clause 37 of Schedule 1A to the Act) will also assist AFMA in meeting its obligation to identify persons under the Part 1C of the Crimes Act 1914.  In that instance an audio or video recording of an interview with each crew member will assist in positively identifying detainees and ascertaining the true identity of the master. 

New regulation 19D specifies the personal identifiers which non-citizens must provide through one or more identification tests conducted under paragraph 29(1)(a) of Schedule 1A.  The list includes the same restriction on photographs of scars and other identifying marks as applies under regulations 19B and 19C.

The Australian Government’s strong stance on foreign illegal fishing is widely known amongst foreign illegal fishers who have been detained.  In the past, fishers have purposely misled AFMA officials about their identity and even their age.  It is vital that AFMA is able to adequately identify offenders to ensure that foreign illegal fishing can be deterred.

 

Under international law, a person must not be imprisoned for a foreign fishing offence; however recidivists (repeat offenders) can be sentenced to a jail term as a result of breaching a good behaviour bond or defaulting on a fine imposed in a previous prosecution for foreign illegal fishing offences under the FMA or the TSFA.

 

Identifying foreign fishers who do not carry documentation and do not want to be identified is difficult.  The proposed Regulations will enable AFMA to use the technology and processes that have been conferred upon other border protection enforcement agencies, particularly DIMIA and Customs.

In an operational context it is necessary to have a range of personal identifiers to positively identify detainees.  In many situations, a combination of one or more identifiers is needed.

The proposed Regulation prescribes commonly used personal identifiers such as fingerprints or hand prints of the non-citizen, a measurement of the non citizen’s height and weight and a photograph or other image of the non citizen’s face and shoulders and the non citizen’s signature.  New regulation 19D also prescribes an iris scan of the detainee’s eyes, a sample of the detainee’s handwriting, a photograph of a tattoo, scar or other identifying mark of the detainee (but only if obtaining the photograph does not involve removing any of the detainee’s clothing or carrying out an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914) and an audio or videorecording of the detainee (other than a videorecording under clause 37 of Schedule 1A). 

An iris scan of a non citizen’s eyes may be necessary where finger prints cannot be taken.  Iris scanning technology provides a unique, reliable and portable personal identifier particularly useful for identifying detainees on ships and in remote locations around the Australian coast.

As ships masters are often charged with summary or indictable offences, it is not uncommon for a master to obscure his identity and ask another to step forward in his place.  In that instance, a sample of a person’s handwriting can be compared to a ships log in seeking to positively identify the master. 

A photograph of a tattoo, scar of other identifying is particularly useful as these markings are common amongst fisheries detainees, distinctive in location and pattern and not easily removed.  A photograph of a tattoo or scar would usefully replace fingerprints which cannot positively identify a detainee owing to calluses, scars or other deterioration of the skin.

When it is not possible to identify the master of a ship, the whole crew must be interviewed.  In these circumstances, an audio or video recording is particularly useful as it allows AFMA officers to review and compare crew statements and identification information.  An audio or video recording of a detainee (other than a video recording under clause 37 of Schedule 1A to the Act) will also assist AFMA in meeting its obligation to identify persons under the Part 1C of the Crimes Act 1914.  In that instance an audio or video recording of an interview with each crew member will assist in positively identifying detainees and ascertaining the true identity of the master. 

New subregulation 19E(1) specifies the matters about which an authorised officer must inform non-citizens under paragraph 30(1)(b) of Schedule 1A before carrying out an identification test on a non-citizen.  The matters are; why a personal identifier is required, how it may be collected, how it may be used and, if the non-citizen is a minor or an incapable person, how the personal identifier is to be obtained from the minor. 

Proposed new subregulation 19E(1) closely corresponds with regulation 5.34D of the Migration Regulations 1994 and, as such, will facilitate the seamless transfer of detainees from fisheries detention to immigration detention with one set of rules applying to the detainee’s entire period of detention. 

New subregulation 19E(2) requires the authorised officer to also inform the non-citizen that the personal identifier may be produced in evidence in a court or tribunal in relation to the non-citizen, that the Privacy Act 1988 applies to their personal identifiers and that they may access certain information and documents under the Freedom of Information Act 1982.

New subregulation 19E(3) provides that where the information required to be given to a non-citizen is provided in a form under subclause 30(3) of Schedule 1A, the non-citizen must be provided with enough time to read and understand the form before the identification test is conducted. 

New regulation 19F lists the types of personal identifier to which access may not be authorised for the purposes of subclause 41(3) of Schedule 1A to the Act.  New regulation 19F places a further restriction on an authorisation made under new subsection 41(1) regarding a prescribed type of personal identifier.  AFMA must not authorise access if the purpose of that access would involve the purpose of investigating an offence against a law of the Commonwealth or a State or Territory (other than an offence involving whether an identification test was carried out lawfully) or prosecuting a person for such an offence.

New regulation 19G permits the disclosure of video recordings to the Human Rights and Equal Opportunity Commission for the purpose of inquiring into the provisions of the Act relating to the carrying out of identification tests.

New regulation 19H specifies the types of personal identifier in relation to which the provision of a video recording is not a permitted provision for the purposes of paragraph 42(3)(a) of Schedule 1A .  The provision of a video tape is not a permitted provision if it constitutes a disclosure of a prescribed type of personal identifier and the provision is for the purposes of either investigating an offence against a law of the Commonwealth or of a State or Territory (other than on offence involving whether an identification test was carried out lawfully) or prosecuting a person for such an offence.   

Division 3 - Disclosure of identifying information

New regulation 19I sets out the types of personal identifier for which access may not be authorised for the purposes of subclause 52(3) of Schedule 1A.  New regulation 19I places a further restriction on an authorisation made under new subsection 52(1) of Schedule 1A.  Where the identifying information in question relates to a personal identifier of a prescribed type, an authorising purpose under new subsection 52(2) must not include the purposes of investigating an offence against a law of the Commonwealth or a State or Territory; or prosecuting a person for such an offence.

New regulation 19J sets out the Commonwealth agencies which may be authorised to disclose identifying information for the purposes of subclause 54(1) of Schedule 1A.  The Department of Foreign Affairs and Trade (DFAT) is a prescribed agency for the transmission of certain information to the governments of foreign countries using diplomatic channels.  The Australian Customs Service (Customs) is also a prescribed agency for the transmission of certain information to enable Customs to perform the function of detaining and transporting detainees.  New regulation 19J will not allow DFAT or Customs to control the information for their own purposes.

New regulation 19K lists the Commonwealth, State and Territory bodies to which a disclosure of identifying information may be authorised under paragraph 54(1)(d) of Schedule 1A.  This new regulation corresponds closely to regulation 5.34D of the Migration Regulations 1994 and, as such, will facilitate the seamless   transfer of detainees from fisheries detention to immigration detention with one set of rules applying to the detainee’s entire period of detention. 

The Australian Government’s strong stance on foreign illegal fishing is widely known amongst foreign illegal fishers who have been detained.  In the past, fishers have purposely misled AFMA officials about their identity and even their age.  It is vital that AFMA is able to adequately identify offenders to ensure that foreign illegal fishing can be deterred.

 

Under international law, a person must not be imprisoned for a foreign fishing offence; however recidivists (repeat offenders) can be sentenced to a jail term as a result of breaching a good behaviour bond or defaulting on a fine imposed in a previous prosecution for foreign illegal fishing offences under the FMA or the TSFA.

 

Identifying foreign fishers who do not carry documentation and do not want to be identified is difficult.  The proposed Regulations will enable AFMA to use the technology and processes that have been conferred upon other border protection enforcement agencies, particularly DIMIA and Customs.

AFMA apprehends foreign illegal fishers throughout the Australian Fishing Zone (AFZ) with concentrations of apprehension in northern waters and the Southern Ocean.   If a detainee has previously been prosecuted for fisheries offences in state or territory, the States or the Territories will hold identifying information which may assist in positively identifying the detainee. If the detainee is identified as a recidivist, charges can then be laid under the FMA or the TSFA

Under new regulation 19K, AFMA will disclose only those personal identifiers reasonably necessary to identify an individual.  AFMA will disclose identifying information only to a body or bodies which might reasonably assist in identifying a detainee.  New regulation 19K will not allow any of the agencies prescribed to control the information for their own purposes.

Commonwealth agencies to which AFMA may wish to disclose identifying information are subject to the Privacy Act 1988 and its restrictions on the use of personal informationAFMA will attach a caveat to all transmissions on the use of identifying information to state and territory bodies named in new regulation 19K, prohibiting them from using the identifying information for any purpose other than the purpose for which the information is provided.


New regulation 19L lists the international organisations to which a disclosure of identifying information may be authorised under paragraph 54(1)(e) of Schedule 1A.  

The New regulation allows AFMA to authorise a specified officer or detention officer, or any officer or detention officer included in a specified class of officers or detention officers, or an Agency prescribed in the regulations, to disclose certain identifying information to the specified international organisations, namely Interpol, the United Nations or an Intergovernmental Organisation known as a Regional Fisheries Bodies (RFBs). 

AFMA will disclose only those personal identifiers reasonably necessary to identify an individual.  AFMA will disclose identifying information only to a body or bodies which might reasonably assist in identifying a detainee.  New regulation 19L will not allow any of the agencies prescribed to control the information for their own purposes.

AFMA will attach a caveat to all transmissions on the use of identifying information to the intergovernmental organisations named in new regulation 19L, prohibiting them from using the identifying information for purposes other than the purpose for which the information is provided.

Division 4 - Disclosures relating to illegal fishing activities

New regulation 19M sets out the Commonwealth agencies which may be authorised by the Minister to disclose information under subsection 108B(1) of the Act.  The Department of Foreign Affairs and Trade (DFAT) is a prescribed agency for the transmission of certain information to the governments of foreign countries using diplomatic channels.  The Australian Customs Service (Customs) is also a prescribed agency for the transmission of certain information to enable Customs to perform the function of detaining and transporting detainees.  New regulation 19M will not allow DFAT or Customs to control the information for their own purposes. 


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