Commonwealth Numbered Regulations - Explanatory Statements

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GREAT BARRIER REEF MARINE PARK AMENDMENT REGULATIONS 2002 (NO. 4) 2002 NO. 177

STATUTORY RULES 2002 No. 177

ISSUED BY AUTHORITY OF THE MINISTER FOR THE ENVIRONMENT AND HERITAGE

Great Barrier Reef Marine Park Act 1975

Great Barrier Reef Marine Park Amendment Regulations 2002 (No. 4)

Subsection 66(1) of the Great Barrier Reef Marine Park Act 1975 (the Act) provides that the Governor-General may make regulations, not inconsistent with this Act nor with a zoning plan, prescribing all matters required or permitted by this Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to this Act.

Paragraph 66(2)(i) of the Act provides for the making of regulations regulating the conduct of persons in the Great Barrier Reef Marine Park ("the Marine Park").

Paragraph 66(2)(o) of the Act provides for the making of regulations regulating the use of vessels in, and the passage of vessels through, the Marine Park, and the landing and use of aircraft in, and the flying of aircraft over, the Marine Park.

The purpose of the Regulations is to amend regulation 41 of the Great Barrier Reef Marine Park Regulations 1983 ("the principal Regulations") to increase the maximum penalty for tender commercial fishing vessels (that is, vessels that are licensed to, or used in conjunction with, the primary vessel) that are unattached from the primary commercial fishing vessel when in non-fishing areas of the Marine Park from 10 penalty units ($1,100 for an individual and $5,500 for a company). The maximum penalty has been increased to 50 penalty units ($5,500 for an individual and $27,500 for a company).

Regulation 41 of the principal Regulations requires tender commercial fishing vessels (as defined in the Regulations) to be attached to their primary vessel when in non-fishing areas of the Marine Park, so as to prevent the tender vessels being used to fish protected areas of the Marine Park. The increase in maximum penalties under regulation 41 of the principal Regulations is aimed at deterring commercial fishers from detaching their tender vessels in non-fishing areas of the Marine Park.

Details of the Regulations are as follows:

Regulation 1 provides that the name of the regulations is the Great Barrier Reef Marine Park Amendment Regulations 2002 (No. 4).

Regulation 2 provides that the regulations commence on gazettal.

Regulation 3 provides that Schedule 1 amends the Great Barrier Reef Marine Park Regulations 1983.

Schedule 1- Amendments

Amendment 1 substitutes regulation 41 of the principal Regulations with a new regulation 41 as follows:

New Regulation 41- Tender commercial fishing vessels

Subregulation (1) requires a tender commercial fishing vessel that is in a nonfishing area of the Marine Park to be under tow by, or otherwise physically attached to, the primary commercial fishing vessel in association with which the tender vessel is licensed or used.

Subregulation (2) makes the master of a primary commercial fishing vessel in association with which a tender commercial fishing vessel is licensed or used guilty of an offence if the master fails to have the tender vessel under tow by, or otherwise physically attached to, the primary vessel when the tender vessel is in a non-fishing area of the Marine Park. Contravention of this provision is punishable by a maximum penalty of 50 penalty units.

Subregulation (3) makes the person who holds a licence or other permission (however described) in force under a Commonwealth, State or Territory law, permitting a primary commercial fishing vessel to be used to take fish for commercial purposes guilty of an offence if a tender commercial fishing vessel, that is licensed or used in association with that primary vessel, is in contravention of subregulation (1). Contravention of this provision is punishable by a maximum penalty of 50 penalty units.

Subregulation (4) makes a person guilty of an offence if the person is in or on a tender commercial fishing vessel that is in contravention of subregulation (1). Contravention of this provision is punishable by a maximum penalty of 50 penalty units.

Subregulation (5) provides that an offence against subregulation (2), (3) or (4) is an offence of strict liability. A note on strict liability is included and refers to section 6.1 of the Criminal Code. This means that there are no fault elements for any of the physical elements of the offence, however, the defence of mistake of fact is available.

Subregulation (6) provides defences to a prosecution under subregulation (2), (3) or (4).

Subregulation (7) defines key terms used in regulation 41, including "nonfishing area of the Marine Park", "primary commercial fishing vessel" and "tender commercial fishing vessel".

The Regulations commence on gazettal.

REGULATION IMPACT STATEMENT

INCREASED PENALTIES FOR TENDER COMMERCIAL FISHING VESSELS OPERATING IN CONTRAVENTION OF GREAT BARRIER REEF MARINE PARK REGULATIONS

PREPARED BY THE GREAT BARRIER REEF MARINE PARK AUTHORITY

Introduction

The Great Barrier Reef Marine Park (GBRMP) is one of the world's largest marine protected areas, encompassing a complex array of diverse ecosystems. Because of its large size, diversity and uniqueness, the Great Barrier Reef is an internationally significant ecological resource. As a consequence, it has World Heritage status.

The management of fish stocks in the GBRMP and World Heritage Area (WHA) is the responsibility of the Queensland fisheries management agency. The Great Barrier Reef Marine Park Authority (GBRMPA), in keeping with its responsibility to protect the natural resources of the GBRMP whilst providing for reasonable use of the Great Barrier Reef Region, contributes to the management of fishing through the use of management zones which restrict certain fishing activities in specific areas.

The direct economic value of the commercial fishing industry in the GBRMP is estimated to be about $200 million per year, making it, in economic terms, the second most important activity after tourism.

In several commercial fisheries, the licensed fishing operations comprise a primary vessel, generally 12 to 20 metres long, on which the caught fish are frozen, chilled or held alive. This primary vessel also provides accommodation for the fishing crew. In most cases, the actual fishing is undertaken by smaller vessels, called tender boats, associated with the primary vessel. These tender boats are open, aluminium or fibreglass dinghies up to 7 metres long. Primary boats may have up to seven tender boats, which they tow to the fishing grounds. On arrival, the tender boats are untied from the primary boats to search for individual fishing spots.

The most important fishery in the GBRMP/WHA that uses primary vessels and tender boats is the Queensland coral reef finfish fishery. Second in commercial value to the trawl fishery, it targets primarily fish such as coral trout and red throat emperor. Potentially, up to 930 primary vessels with tender boats can access this fishery. About half of these actively target reef fish, but this number is increasing in response to higher market prices. Since 1997, the annual commercial catch of coral reef fish has exceeded 3,000 tonnes. As well as the commercial sector, the fishery includes substantial recreational fishing and charter fishing operations. Many of the targeted reef fish are also visually attractive to tourist divers.

Also, tender boats are the main fishing platform for the commercial Spanish mackerel fishery. Similarly, the commercial tropical lobster fishery operates in the GBRMP/WHA with 29 primary vessels and 95 associated tender boats. Tender boats are used to a lesser degree in other commercial fisheries, including the mud crab, sea cucumber and trochus fisheries.

What is the problem being addressed?

The issue addressed by the proposed Regulation amendment is illegal fishing in GBRMP zones in which such activities are prohibited.

GBRMP zoning plans protect selected areas of the Marine Park from the impacts of various activities. In line with the World Heritage status of the Marine Park, many of these zones are dosed to fishing to allow the reef ecosystems to exist in their natural condition. These protected areas also play a key role in sustaining fish stocks prized by commercial and recreational fisheries. In order to assist in enforcing compliance, commercial tender boats cannot, by regulation, be unattached from their primary vessel in zones dosed to fishing.

In the last seven months, 43 commercial tender boats operating in the coral reef finfish fishery have been detected operating illegally in GBRMP zones dosed to fishing. Twentynine of these have been detected in the last 11 weeks. In only a few cases is there proof to support prosecution for illegal fishing in these zones. In most of the incidents, there is sufficient evidence to support charges of having commercial tender boats unattached from the primary vessel. In most such cases there were dear indications that the tender boats had fished (e.g. boats pulling up anchors and/or racing away from the zone as patrols approached, fish and/or bait on board). In most circumstances, there is no reason, other than illegal fishing, for commercial fishing tender boats to be deployed in areas dosed to fishing.

It will be rare for an enforcement patrol at sea or in the air to catch an offender with fishing lines actually in the water. Coral reef line fishers fish with the tender boat at anchor, the outboard motor turned off and plenty of time between bites to look around. Those in zones dosed to fishing will be extra vigilant and it takes only a few seconds to cut off or pull in and stow a fishing line. Even allowing for approaches by unmarked patrol boats, it is unlikely that offenders will be caught in the act of fishing; it is more likely that most prosecutions will continue to come from apprehending tender boats illegally unattached in protected zones.

Current maximum penalties under the Great Barrier Reef Marine Park Act 1975 are inadequate to deter illegal deployment of fishing tender boats in zones dosed to fishing. Present penalties are considered by illegal fishers as "a cost of doing business" and, in many cases, are substantially less than the financial rewards that may be gained by contravening the zoning plan provisions.

Recent amendments to the GBRMP Act increased the penalties for offences under the Act related to fishing to up $220,000 for a person and $1,100,000 for a corporation. However, the prohibition on unattached commercial fishing tenders in protected zones is in the regulations, not in the Act. As a result, the maximum penalty for the unattached tender boat offence remains only 10 penalty units, i.e. $1,100 in total for each tender boat. Given the present high prices for reef fish, this sum is about the average daily income from a tender boat fishing legally. Even if magistrates hand down the maximum fine, there is little financial deterrent for commercial fishers not to fish protected zones, where catch rates of fish would be significantly higher than in reefs open to fishing.

In addition to the low penalty, a compounding problem arises from exemptions from prosecution provided, under certain circumstances, by the present regulation on unattached fishing tender boats. Some exemptions, such as in relation to rescues and emergencies, are reasonable. Others, for example allowing for "the supply or resupply of provisions or materials to the primary fishing vessel" are open to abuse and should be reconsidered. A commercial fisherman apprehended in a GBRNIP protected area recently avoided prosecution under this clause on the grounds that he was taking a packet of cigarettes to the primary fishing vessel.

What are the objectives of Government action?

To deter illegal fishing activities in GBRIVIP zones in which the activities are excluded and thereby protect the GBRNIP and its living resources from the adverse impacts of these activities.

Which options for dealing with the problem were considered?

Option 1- The status quo

It is considered that the option of maintaining the status quo and keeping penalties at current levels does not address the problem of illegal fishing. The failure of past prosecutions to act as a deterrent is evident from the increasing rate of apprehensions.

Option 2 - Proposed Regulation amendment

A regulation amendment is proposed to raise the penalty for commercial tender boats illegally unattached to the 50 units maximum allowed under the regulations. A maximum fine of $5,500 would provide a much more viable deterrent to offending commercial operators.

It is proposed to amend the exemptions provision at the same time to remove loopholes from prosecution, whilst continuing to allow for genuine situations such as emergencies. Further, a strict liability provision is proposed for this regulation so that prosecution is not subject to additional proof of knowledge and intent. This is reasonable given that the regulation is only pertinent to licensed commercial fishers who have a professional responsibility to understand and comply with GBRMP zoning plans and regulations.

Amendment of the regulation will also allow a reference to revoked Queensland legislation to be updated.

Who is likely to be affected?

The primary benefit of the proposed Regulations is greater protection of the natural resources and biodiversity of the GBRMP and WHA for the Australian and world community. This has major flow-on benefits to the tourism industry, which is focused on providing people with an experience of the natural wonders of the GBRMP and WHA, and contributes substantially to the Queensland and Australian economies. In recent years (1993/94-1997/98), the gross, annual, financial value of direct commercial tourism use of the GBRMP has been estimated to range from $411 million to $507 million. In addition, during the same period, the gross, annual, financial value of direct recreational fishing and boating use of the GBRMP has been estimated to range from $108 million to $120 million. Much of the tourist industry is focused around reefs that are dosed to fishing under GBRMP zoning plans.

The proposed Regulation amendment will also benefit the commercial fishing industry. Most commercial fishers wish to go about their business in an honest fashion in the expectation that wrongdoers will be discouraged from acting illegally. Illegal fishing ultimately has an impact on the catch and income of fishers who obey the law. The fishing industry is an important component of the Queensland and Australian economies. Ecologically sustainable fisheries are essential to the long-term viability of the Queensland commercial fishing industry, which is often a major component of the economic and social fabric of many coastal towns. Much of the information about illegal operators provided to the GBRMPA comes from other commercial fishers.

People who undertake illegal activities with fishing tender boats in contravention of Regulations will be adversely affected by the proposed Regulation change. The maximum penalty that may be applied now is 10 penalty units ($1,100). The proposed Regulation amendment will have the effect of increasing the maximum penalty to 50 penalty units ($5,500).

Implementation and review

The proposed Regulation amendment will be introduced under the Great Barrier Reef Marine Park Act 1975.

Any fines imposed as a result of the proposed Regulation amendment will be by a court of competent jurisdiction. A person against whom a fine is imposed will be able to appeal if the requirements of the relevant court are satisfied.

The GBRMPA is continuing to investigate ways of improving surveillance of vessels operating in the GBRMP and WHA, particularly via the use of new technologies.

Conclusion and recommended option

To help safeguard the natural resources of the GBRMP, an unambiguous message needs to be sent to illegal fishers who contravene GBRMP zoning plans, management plans, regulations or permit conditions. The high rate of infringement detection in recent months confirms that the current penalty for illegal deployment of fishing tender boats in protected areas is inadequate to deter such activities. It has also been demonstrated that in some cases exemption provisions may be exploited to evade prosecution.

It is recommended that the maximum penalty for having fishing tender boats unattached from the primary vessel in zones contrary to the regulations be increased to 50 penalty units. It is also recommended that the regulation be redrafted to support prosecution of offenders, whilst allowing for reasonable use of tender fishing boats in genuine circumstances.