2004-2005 The Parliament of the Commonwealth of Australia THE SENATE Presented and read a first time Fisheries Legislation Amendment (Cooperative Fisheries Arrangements and Other Matters) Bill 2005 No. , 2005 (Fisheries, Forestry and Conservation) A Bill for an Act to amend the Fisheries Management Act 1991, and for related purposes [Page Break] 1 Short title ...........................................................................................1 2 Commencement.................................................................................1 3 Schedule(s) ........................................................................................2 Schedule 1--Objectives 3 Fisheries Administration Act 1991 3 Fisheries Management Act 1991 4 Schedule 2--Cooperative arrangements 6 Fisheries Administration Act 1991 6 Fisheries Management Act 1991 6 Fisheries Legislation Amendment (Cooperative Fisheries Arrangements and Other Matters) Bill 2005 No. , 2005 ii [Page Break] 2 Management Act 1991, and for related purposes 3 The Parliament of Australia enacts: 4 1 Short title 5 This Act may be cited as the Fisheries Legislation Amendment 6 (Cooperative Fisheries Arrangements and Other Matters) Act 7 2005. 8 2 Commencement 9 This Act commences on the day on which it receives the Royal 10 Assent. Fisheries Legislation Amendment (Cooperative Fisheries Arrangements and Other Matters) Bill 2005 No. , 2005 1 [Page Break] 2 Each Act that is specified in a Schedule to this Act is amended or 3 repealed as set out in the applicable items in the Schedule 4 concerned, and any other item in a Schedule to this Act has effect 5 according to its terms. 2 Fisheries Legislation Amendment (Cooperative Fisheries Arrangements and Other Matters) Bill 2005 No. , 2005 [Page Break] 1 2 Schedule 1--Objectives 3 4 Fisheries Administration Act 1991 5 1 Subsection 4(1) 6 Insert: 7 principles of ecologically sustainable development has the 8 meaning given by section 6A. 9 2 Paragraph 6(b) 10 Omit "and the exercise of the precautionary principle", substitute 11 "(which include the exercise of the precautionary principle)". 12 3 Paragraph 6(c) 13 Repeal the paragraph, substitute: 14 (c) maximising the net economic returns to the Australian 15 community from the management of Australian fisheries; and 16 4 After section 6 17 Insert: 18 6A Principles of ecologically sustainable development 19 The following principles are principles of ecologically sustainable 20 development: 21 (a) decision-making processes should effectively integrate both 22 long-term and short-term economic, environmental, social 23 and equity considerations; 24 (b) if there are threats of serious or irreversible environmental 25 damage, lack of full scientific certainty should not be used as 26 a reason for postponing measures to prevent environmental 27 degradation; 28 (c) the principle of inter-generational equity--that the present 29 generation should ensure that the health, diversity and 30 productivity of the environment is maintained or enhanced 31 for the benefit of future generations; Fisheries Legislation Amendment (Cooperative Fisheries Arrangements and Other Matters) Bill 2005 No. , 2005 3 [Page Break] 1 (d) the conservation of biological diversity and ecological 2 integrity should be a fundamental consideration in 3 decision-making; 4 (e) improved valuation, pricing and incentive mechanisms 5 should be promoted. 6 Fisheries Management Act 1991 7 5 Paragraph 3(1)(b) 8 Omit "and the exercise of the precautionary principle", substitute 9 "(which include the exercise of the precautionary principle)". 10 6 Paragraph 3(1)(c) 11 Repeal the paragraph, substitute: 12 (c) maximising the net economic returns to the Australian 13 community from the management of Australian fisheries; and 14 7 After section 3 15 Insert: 16 3A Principles of ecologically sustainable development 17 The following principles are principles of ecologically sustainable 18 development: 19 (a) decision-making processes should effectively integrate both 20 long-term and short-term economic, environmental, social 21 and equity considerations; 22 (b) if there are threats of serious or irreversible environmental 23 damage, lack of full scientific certainty should not be used as 24 a reason for postponing measures to prevent environmental 25 degradation; 26 (c) the principle of inter-generational equity--that the present 27 generation should ensure that the health, diversity and 28 productivity of the environment is maintained or enhanced 29 for the benefit of future generations; 30 (d) the conservation of biological diversity and ecological 31 integrity should be a fundamental consideration in 32 decision-making; 4 Fisheries Legislation Amendment (Cooperative Fisheries Arrangements and Other Matters) Bill 2005 No. , 2005 [Page Break] 1 (e) improved valuation, pricing and incentive mechanisms 2 should be promoted. 3 8 Subsection 4(1) 4 Insert: 5 principles of ecologically sustainable development has the 6 meaning given by section 3A. Fisheries Legislation Amendment (Cooperative Fisheries Arrangements and Other Matters) Bill 2005 No. , 2005 5 [Page Break] 1 2 Schedule 2--Cooperative arrangements 3 4 Fisheries Administration Act 1991 5 1 At the end of section 4 6 Add: 7 (3) If an arrangement under Division 3 of Part 5 of the Fisheries 8 Management Act 1991 is varied, a reference in this Act to the 9 arrangement is a reference to the arrangement as varied. 10 2 Subsection 91(5) 11 Repeal the subsection, substitute: 12 (5) If, in respect of a fishery, there is in force an arrangement under 13 Division 3 of Part 5 of the Fisheries Management Act 1991 under 14 which: 15 (a) a Joint Authority has the management of the fishery; and 16 (b) the fishery, or a part of the fishery identified in the 17 arrangement, is to be managed in accordance with the law of 18 the Commonwealth; 19 references in this section to the Minister are taken, in relation to the 20 fishery or the part of the fishery, to be references to the Joint 21 Authority. 22 Fisheries Management Act 1991 23 3 At the end of section 4 24 Add: 25 (8) If an arrangement under Division 3 of Part 5 is varied, a reference 26 in this Act to the arrangement is a reference to the arrangement as 27 varied. 28 4 Subsection 45(1) 29 Omit "or a Joint Authority managing a fishery in accordance with the 30 law of the Commonwealth", substitute ", or a Joint Authority managing 31 a fishery that is (or part of which is) managed in accordance with the 32 law of the Commonwealth,". 6 Fisheries Legislation Amendment (Cooperative Fisheries Arrangements and Other Matters) Bill 2005 No. , 2005 [Page Break] 1 5 Subsection 60(2) 2 After "this Part" (first occurring), insert ", including the Minister's 3 functions and powers". 4 6 Subsections 71(2) and (3) 5 Repeal the subsections, substitute: 6 (2) An arrangement with only one State must provide that: 7 (a) the fishery is to be managed in accordance with the law of 8 the Commonwealth; or 9 (b) the fishery is to be managed in accordance with the law of 10 the State; or 11 (c) the fishery is to be managed in accordance with the law of 12 the Commonwealth and the law of the State. 13 (3) An arrangement with 2 or more States must provide that: 14 (a) the fishery is to be managed in accordance with the law of 15 the Commonwealth; or 16 (b) the fishery is to be managed in accordance with the law of 17 one or more of the States concerned; or 18 (c) the fishery is to be managed in accordance with the law of 19 the Commonwealth and the law of one or more of the States 20 concerned. 21 (4) An arrangement that provides that a fishery is to be managed in 22 accordance with the law of more than one jurisdiction must 23 identify, by reference to areas that do not overlap, the parts of the 24 fishery that are to be managed in accordance with each law. 25 (5) If, under an arrangement: 26 (a) a fishery is to be managed in accordance with the law of a 27 State; or 28 (b) a part of a fishery is to be managed in accordance with the 29 law of a State; 30 the arrangement may, if required by the Commonwealth, provide 31 for giving effect to Australia's obligations under international law 32 (including international agreements) in relation to the fishery or 33 part of the fishery. 34 7 Section 72 Fisheries Legislation Amendment (Cooperative Fisheries Arrangements and Other Matters) Bill 2005 No. , 2005 7 [Page Break] 1 Before "The", insert "(1)". 2 8 At the end of section 72 3 Add: 4 (2) If, under an arrangement, a fishery is to be managed in accordance 5 with the law of a State, the arrangement may, if required by the 6 Commonwealth, provide for giving effect to Australia's obligations 7 under international law (including international agreements) in 8 relation to the fishery. 9 9 Subsection 74(1) 10 Repeal the subsection, substitute: 11 (1) An arrangement under this Division is to be made by instrument 12 approved by: 13 (a) the Commonwealth Minister on behalf of the 14 Commonwealth; and 15 (b) the appropriate Minister or Ministers of the State or States 16 concerned. 17 10 At the end of section 74 18 Add: 19 (4) An instrument approved under subsection (1) is not a legislative 20 instrument. 21 11 After section 74 22 Insert: 23 74A Arrangements--how varied etc. 24 (1) An arrangement under this Division is to be varied by instrument 25 approved by: 26 (a) the Commonwealth Minister on behalf of the 27 Commonwealth; and 28 (b) the appropriate Minister or Ministers of the State or States 29 concerned. 30 (2) The Commonwealth Minister must cause a copy of every 31 instrument so approved to be published in the Gazette, and the 8 Fisheries Legislation Amendment (Cooperative Fisheries Arrangements and Other Matters) Bill 2005 No. , 2005 [Page Break] 1 instrument takes effect on the date of publication or on a later date 2 specified in the instrument. 3 (3) Subject to the requirements of section 23, after an arrangement 4 under this Division has been varied but before the variation takes 5 effect, the following things may be done for the purposes of the 6 operation of this Act as affected by the variation as if the variation 7 had taken effect: 8 (a) plans of management, permits or other instruments may be 9 determined, granted or executed; 10 (b) fishing rights may be granted; 11 but such a plan, instrument or right does not have effect before the 12 variation takes effect. 13 (4) Upon the variation of an arrangement under this Division: 14 (a) plans of management, fishing permits, scientific permits and 15 other instruments determined, granted, executed or 16 published; and 17 (b) statutory fishing rights granted; 18 for the purposes of the operation of this Act as affected by the 19 variation cease to have effect to the extent (if any) they are 20 inconsistent with the arrangement as varied. 21 (5) An instrument approved under subsection (1) is not a legislative 22 instrument. 23 12 Subsection 75(1) 24 Repeal the subsection, substitute: 25 (1) An arrangement under this Division may be terminated by 26 instrument approved by: 27 (a) the Commonwealth Minister on behalf of the 28 Commonwealth; and 29 (b) the appropriate Minister or Ministers of the State or States 30 concerned. 31 13 Paragraph 75(3)(a) 32 Omit "Governor-General", substitute "Commonwealth Minister". 33 14 Paragraph 75(3)(b) Fisheries Legislation Amendment (Cooperative Fisheries Arrangements and Other Matters) Bill 2005 No. , 2005 9 [Page Break] 1 Omit "Governor of the State", substitute " appropriate Minister of the 2 State". 3 15 At the end of section 75 4 Add: 5 (9) An instrument approved under subsection (1) is not a legislative 6 instrument. 7 16 Section 76 8 Before "Where", insert" (1)". 9 17 At the end of section 76 10 Add: 11 (2) If an arrangement under this Division provides that: 12 (a) a part of a fishery is to be managed in accordance with the 13 law of the Commonwealth; and 14 (b) that part of the fishery is so identified that it is, or may be, 15 carried on partly within the coastal waters of a State; 16 the coastal waters of that State are taken to be in the AFZ for the 17 purposes of the application of this Act in relation to that part of the 18 fishery. 19 18 Section 77 20 Repeal the section, substitute: 21 77 Exclusion of this Act (except this Division) 22 If an arrangement under this Division provides that: 23 (a) a particular fishery is to be managed in accordance with the 24 law of a State; or 25 (b) a part of a particular fishery is to be managed in accordance 26 with the law of a State; 27 this Act, other than this Division, does not apply in relation to that 28 fishery, or that part of the fishery, except in relation to: 29 (c) foreign boats; and 30 (d) operations on and from foreign boats; and 31 (e) persons on foreign boats; and 32 (f) matters that occurred before the arrangement took effect. 10 Fisheries Legislation Amendment (Cooperative Fisheries Arrangements and Other Matters) Bill 2005 No. , 2005 [Page Break] 1 19 Section 78 2 Before "If", insert "(1)". 3 20 At the end of section 78 4 Add: 5 (2) If: 6 (a) an arrangement is in force under this Division under which a 7 Joint Authority has the management of a fishery; and 8 (b) a part of the fishery is to be managed in accordance with the 9 law of the Commonwealth; 10 then: 11 (c) AFMA has the same powers in relation to the part of the 12 fishery as it would have if the part of the fishery were under 13 the management of AFMA; and 14 (d) references in sections 18 and 20 to the Minister are taken, in 15 relation to the part of the fishery, to be references to the Joint 16 Authority. 17 21 Section 163 18 Omit "and 20", substitute ", 20, 74, 74A and 75". 19 22 Savings and application provision 20 (1) Subject to subitem (2), an arrangement in force under section 71 or 72 21 of the Fisheries Management Act 1991 immediately before the 22 commencement of this item: 23 (a) continues in force after that commencement as if it had been 24 made under section 71 or 72 (as the case may be) of that Act 25 as amended by this Act; and 26 (b) may be varied or terminated in the same way as an 27 arrangement made under that section after that 28 commencement may be varied or terminated. 29 (2) The amendments made by this Schedule do not start to apply to a 30 participating State until the day specified, in relation to the State, in a 31 notice referred to in subitem (5). 32 (3) For the purposes of this item, a State is a participating State if there is a 33 declaration in force under subitem (4) in relation to the State. Fisheries Legislation Amendment (Cooperative Fisheries Arrangements and Other Matters) Bill 2005 No. , 2005 11 [Page Break] 1 (4) The Minister may, in writing, declare in relation to a State that a law of 2 the State corresponds to Division 3 of Part 5 of the Fisheries 3 Management Act 1991. 4 (5) The Minister must announce by notice in the Gazette the day on which 5 the amendments made by this Schedule start to apply in relation to a 6 participating State specified in the notice. 7 (6) A declaration under subitem (4) is not a legislative instrument. 8 (7) A notice under subitem (5) is not a legislative instrument. 12 Fisheries Legislation Amendment (Cooperative Fisheries Arrangements and Other Matters) Bill 2005 No. , 2005