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FISHERIES AMENDMENT BILL 2006






THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL TERRITORY
2006






The Fisheries Amendment Bill 2006








EXPLANATORY STATEMENT








Circulated by authority of




John Hargreaves MLA

Minister for Territory and Municipal Services



Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au
1





Fisheries Amendment Bill 2006

Outline

The Fisheries Amendment Bill 2006.
One of the current issues affecting sustainable fisheries management in
Australia is the illegal trafficking in "priority species", these species includes
abalone and rock lobster. Both Victorian and New South Wales Fisheries as
well as the Australian Crime Commission, have brought to the Territory's
attention that some of these "priority species" appear to be illegally trafficked
into or through the ACT, transported up the Kings Highway and Monaro
Highway either transiting the ACT, or allegedly being disposed of in certain
parts of Canberra.

(For further background see Palmer Report on Illegal Fishing for Commercial
Gain or Profit in NSW May 2004 and soon to be released Australian Crime
Commission (ACC) report on Crime in Fisheries 2006)

The ACT is a member of the National Fisheries Compliance Committee
(NFCC) established under an MOU between State, Territory and Federal
Agencies for Mutual Assistance and Cooperation on Fisheries. One aim of this
MOU is to achieve a truly national framework and enforcement compliance.

The trafficking in unlawfully taken species especially abalone, is an
extremely serious and profitable business. It is allegedly dominated by
organised crime syndicates who see this as a less dangerous enterprise than
drug trafficking, prostitution and, or, handling stolen goods.

Financial implications

Nil

Clause Notes

Clause 1 - Name of Act­ provides that the Act is called the Fisheries
Amendment Act 2006.

Clause 2 - Commencement ­ provides that the Act commence on the day
after notification on the Legislation Register
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Clause 3 ­ Legislation amended­ provides that the Act amends the Fisheries
Act 2000.

Clause 4 ­ Kinds of licences ­ inserts a new section 19(d) ­ this introduces a
new licence for priority species. This licence is in addition to the three other
licences (commercial fishers, fish dealers and import/export licence (for live
fish) under the Act.

Clause 5 ­ Insert a new section 22A ­ This will insert in division 4.1, a
priority species licence. It authorises the licensee (licence holder) to do one or
more of the following in relation to a commercial quantity of fish of a priority
species. That is to: sell the fish, possess or gain possession or control of the
fish, receive the fish and process the fish.

Abalone and rock lobster are to be declared priority species under the
Fisheries Regulation 2001; "commercial quantity" is to be set at 100 abalone
and 20 rock lobster. These commercial quantities are based on the figures in
the Victorian legislation. They are likely to be used in the amendments to the
NSW legislation amendments. This list of species and quantities can be added
to or amended, as, when and if required.

Clause 6 ­ Import and export licences ­ relevant considerations section 28(1)
(d) ­ provides that reference to sections 16, 17 and 21 are omitted and
replaced with sections 33, 34 and 38. This is to ensure correct cross -
referencing.

Clause 7 ­ New section 28 ­issue of priority species licences ­relevant
consideration. ­ Provides that the Conservator in deciding whether to issue a
priority species licence must consider a range of issues including the history
and track record of the applicant in relation to any offence under the Fisheries
Act 2000, the Nature Conservation Act 1980 or a law of a State, corresponding to
this Act, for example New South Wales or Victorian fisheries legislation. The
Conservator must also take into account how the fish of a priority species
would be stored and transported, and must take into account the impact by
issuing this licence on the potentially diminishing resource of this priority
species of fish. The Conservator can take other issues into account and is not
limited to just these three matters. The Conservator must also give
consideration to the objectives of this Act this includes applying the principles
of ESD (ecologically sustainable development).

Clause 8 ­ Terms of licences ­ provides that a scientific licence and a priority
species licence are issued for up to 3 years. (Commercial fishers licence
remains at 1 year)

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Clause 9 ­ Commercial fishers and fish dealers to make records - Section 46
heading - specifies that this heading is substituted with the words commercial
fishers, priority species licence holders and fish dealers, who are required to
make records. Under section 46 there are provisions for the Conservator of
Flora and Fauna to make directions setting out criteria on the keeping of
records. This notifiable instrument will be notified after the commencement of
the Bill.

Clause 10 ­ New Section 46(1A) - Under this section the holder of a priority
species licence (that is currently for abalone and or rock lobster) must make a
record of all the fish of a priority species the holder possesses, receives
(purchases) or sells and if a direction is in force under subsection (4) then the
records must be kept in accordance with that direction. Failure to make
records has a 50 PU fine. This is a strict liability offence and the penalty level
is at the upper end of the penalty range for strict liability offences given the
serious nature of fisheries resources depletion and the need to have up to date
and transparent recording of all fisheries transactions. (Note in NSW failure
to keep such records carries a 200PU fine)

Clause 11 ­ New Section 46 (2 A) - provides for the insertion of a new section
46(A) that reads subsections (1) (1A) and (2) apply whether or not the fish
were sold to a purchaser within the ACT or the fish were taken from waters in
the ACT, is reported upon. This is to ensure that all fish transactions within
the ACT are recorded and these records are kept for at least five years,
irrespective of where the fish originated from, so this would cover species
coming from any other jurisdiction being sold in the ACT. The reporting
requirements are contained in a direction made by the Conservator under
subsection (4).

Clause 12 ­ Section 46 (4) ­ omits subsection (1) or (2) and substitutes this
with (1), (1A) or (2) This is in relation to the giving of directions by the
Conservator, in particular how records must be kept in relation to the three
different licence types.

Clause 13 ­ Keeping of records by commercial fishers and fish dealers -
Section 47 heading ­ this provision substitutes the current heading with the
following - keeping of records by commercial fishers, priority species licence
holders and fish dealers, these changes are to include the reference to priority
species licence holders.

Clause 14 ­ New section 47 (1A) - this change to the provision is the inclusion
of the priority species licence holders to the list of other licence holders and
the requirement to keep records for at least 5 years if they are required under
the Act to keep records. Failure to do so has a 50 PU fine that is $5000 for
individuals and $25000 for companies.

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Clause 15 ­ Commercial fishers and fish dealers to supply information ­ Section
49 heading ­ this provides for the substitution of the heading Commercial fishers,
priority species licence holders and fish to dealers to supply information. These
changes are to include the reference to priority species licence holders.

Clause 16 ­ Section 49 (1) Note ­ this provision includes notes that explain (1)
how documents may be given and ((2) on offences of giving false or
misleading statements under the Criminal Code 2000 which are applicable to
information given under this Act, (for example, in relation to reporting
requirements, if the information is false or misleading).

Clause 17 ­ New Section 49 (1A) - this provision inserts a new subsection
into Section 49 which requires commercial fishers, priority species licence
holders and fish dealers to supply information. It allows the Conservator by
written notice to require the holder of a priority species licence to give the
Conservator within a reasonable time, about the fish possessed, received or
sold by the holder of the licence stated in the notice.

Clause 18 ­ Section 49 (3) ­ this provision omits the current subsection (1) or
(2) and substitutes it with subsection (1) (1A) or (2). These changes are to
include the reference to priority species licence holders.

Clause 19 - New Sections 76A to 76C ­
76(A) Trafficking in commercial quantity of fish of priority species. - This
provision inserts an offence of trafficking in a commercial quantity of fish of
priority species. This offence is aimed at stopping illegal trades in commercial
quantities of abalone and rock lobster. It carries a maximum penalty of 10
years imprisonment and 1000 PU fine. Other jurisdictions have similar
offences with similar penalties and this new offence will assist in breaking the
loop in illegal fisheries transactions of fish of a priority species. The definition
of "traffic" is broad and includes any act listed in (a) to (d); it is intended to
cover all stages in the fisheries chain.

Holders of licenses for priority species are exempt from this offence as long as
they are acting under the conditions of their licence. Persons who purchase
fish from license holders will be exempted from this offence, for example
purchases for personal or domestic use from a licensed holder for example a
dinner party or wedding are exempt.

76(B) Taking commercial quantity of fish of priority species. - This
provision inserts an offence of taking a commercial quantity of fish of a
priority species in a 24-hour period and to do so without having a priority
species licence to authorise that taking. This provision has been introduced to
ensure that multiple takings are not made within the day. Evidence from
other jurisdictions showed that multiple takings were being made within a
24-hour period. The penalty is a maximum one of 1000 penalty units and or 10
years imprisonment. The definition of take for the purpose of this offence
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only, is gain possession or control by any means and not the general
definition of "take" in the dictionary at the back of the Bill which covers
taking from aquatic waters and clearly abalone and rock lobster are not from
waters in the ACT, but from other jurisdictions that then follow the chain
through the ACT. The aim is to cover all stages in the fisheries chain.

As in the previous offence provision for trafficking holders of licenses for
priority species are exempt from this offence as long as they are acting under
the conditions of their licence. Persons who purchase fish from licence holders
will be exempted from this offence, for example purchases of 22 rock lobsters
for personal or domestic use from a licensed holder say for a dinner party are
exempt.


76 C) Possessing commercial quantity of fish of priority species. - This provision
inserts an offence of possessing a commercial quantity of fish of a priority
species. A person commits an offence if the person possesses a commercial
quantity of fish of a priority species and does not hold a licence authorising
that possession. The maximum penalty is 500 penalty units or 5 years
imprisonment or both. As in the previous offence provisions for trafficking
and taking, holders of licenses for priority species are exempt from this
offence as long as they are acting under the conditions of their licence.
Persons who purchase fish from licence holders will be exempted from this
offence, also purchases for personal or domestic use from a licensed holder
for example 110 abalone for a wedding party are exempt.


Clause 20 Guidelines New Section 113(1) (ca) - This provision inserts a provision
whereby the Minister may issue written Guidelines, relating to the exercise of the
Conservators functions in relation to the issuing of a licence for priority species. This
ensures consistency with the ability to issue guidelines for other licences.

Clause 21 Dictionary - new definitions. - This inserts definitions for abalone,
commercial quantity and fish of a priority species.

Clause 22 Dictionary - definition of licence - new paragraph (d) - This inserts s
definition for a priority species licence.

Clause 23 Dictionary - New Definitions - This inserts definitions for priority species
licence and rock lobster

Clause 24 ­ Regulations -this clause specifies that the definition of commercial
quantity will be set in the regulations.





Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au
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Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au
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