2004-2005-2006 The Parliament of the Commonwealth of Australia HOUSE OF REPRESENTATIVES Presented and read a first time Fisheries Legislation Amendment (Foreign Fishing Offences) Bill 2006 No. , 2006 (Agriculture, Fisheries and Forestry) A Bill for an Act to amend the law relating to fisheries, and for related purposes [Page Break] 1 Short title ........................................................................................... 1 2 Commencement ................................................................................. 1 3 Schedule(s) ........................................................................................ 2 Schedule 1--Amendment of the Fisheries Management Act 1991 3 Part 1--Main amendments 3 Part 2--Consequential and technical amendments 6 Schedule 2--Amendment of the Torres Strait Fisheries Act 1984 8 Part 1--Main amendments 8 Part 2--Consequential and technical amendments 15 i Fisheries Legislation Amendment (Foreign Fishing Offences) Bill 2006 No. , 2006 [Page Break] 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 (Foreign Fishing Offences) Act 2006. 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 Fisheries Legislation Amendment (Foreign Fishing Offences) Bill 2006 No. , 2006 1 [Page Break] Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 The day on which this Act receives the and anything in Royal Assent. this Act not elsewhere covered by this table 2. Schedules 1 The day after this Act receives the Royal and 2 Assent. 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published version of this Act. 6 3 Schedule(s) 7 Each Act that is specified in a Schedule to this Act is amended or 8 repealed as set out in the applicable items in the Schedule 9 concerned, and any other item in a Schedule to this Act has effect 10 according to its terms. 11 2 Fisheries Legislation Amendment (Foreign Fishing Offences) Bill 2006 No. , 2006 [Page Break] Main amendments Part 1 1 Schedule 1--Amendment of the Fisheries 2 Management Act 1991 3 Part 1--Main amendments 4 1 After section 100A 5 Insert: 6 100B Using foreign boat for fishing in territorial sea within AFZ 7 (1) A person commits an offence if: 8 (a) the person intentionally uses a boat; and 9 (b) the boat is a foreign boat and the person is reckless as to that 10 fact; and 11 (c) the use of the boat is for commercial fishing and the person is 12 reckless as to that fact; and 13 (d) the boat is at a place that is, at the time of the use, in a part of 14 the territorial sea of Australia that is in the AFZ, and the 15 person is reckless as to that fact. 16 Penalty: 17 (a) if the boat involved in the offence has a length of, or 18 exceeding, 24 metres--7,500 penalty units or 3 years 19 imprisonment, or both; or 20 (b) if the boat involved in the offence has a length of less than 24 21 metres--5,000 penalty units or 2 years imprisonment, or 22 both. 23 (2) The reference to the AFZ in paragraph (1)(d) does not include a 24 reference to coastal waters taken to be in the AFZ because of 25 section 76. 26 (3) For the purposes of the penalty at the end of subsection (1), the 27 length of a boat is the overall length of the boat determined in 28 accordance with section 10 of the Shipping Registration Act 1981. 29 (4) Subsection (1) does not apply if: 30 (a) a foreign fishing licence is in force authorising the use of the 31 boat at the place; or 32 Fisheries Legislation Amendment (Foreign Fishing Offences) Bill 2006 No. , 2006 3 [Page Break] Part 1 Main amendments (b) the boat is a Treaty boat and a Treaty licence is in force in 1 respect of the boat authorising the use of the boat at the place. 2 Note: The defendant bears an evidential burden in relation to the matters in 3 subsection (4). See subsection 13.3(3) of the Criminal Code. 4 2 After section 101A 5 Insert: 6 101AA Having foreign boat equipped for fishing in territorial sea 7 within AFZ 8 (1) A person commits an offence if: 9 (a) the person intentionally has in his or her possession or charge 10 a boat; and 11 (b) the boat is a foreign boat and the person is reckless as to that 12 fact; and 13 (c) the boat is equipped with nets, traps or other equipment for 14 fishing and the person is reckless as to that fact; and 15 (d) the boat is at a place that is in a part of the territorial sea of 16 Australia that is in the AFZ, and the person is reckless as to 17 that fact. 18 Penalty: 5,000 penalty units or 2 years imprisonment, or both. 19 (2) Subsection (1) does not apply if: 20 (a) the use or presence of the boat at the place is authorised by a 21 foreign fishing licence or port permit; or 22 (b) a Treaty licence is in force in respect of the boat; or 23 (c) the boat's nets, traps and other equipment for fishing are 24 stored and secured and the boat is at the place in accordance 25 with the approval of AFMA given under, and in accordance 26 with, the regulations made for the purposes of paragraph 27 101(1)(c); or 28 (d) the boat's nets, traps and other equipment for fishing are 29 stored and secured and the boat is travelling through the AFZ 30 from a point outside the AFZ to another point outside the 31 AFZ by the shortest practicable route; or 32 (e) the use of the boat for scientific research purposes in the 33 place is authorised under a scientific permit. 34 Note: The defendant bears an evidential burden in relation to the matters in 35 subsection (2). See subsection 13.3(3) of the Criminal Code. 36 4 Fisheries Legislation Amendment (Foreign Fishing Offences) Bill 2006 No. , 2006 [Page Break] Main amendments Part 1 (3) A reference to the AFZ in this section does not include a reference 1 to coastal waters taken to be in the AFZ because of section 76. 2 3 After paragraph 166(2)(b) 3 Insert: 4 (ba) that, at a time or during a period specified in the certificate, 5 an area of waters specified in the certificate: 6 (i) was part of the territorial sea of Australia that was, at 7 the time or during the period, in the AFZ; and 8 (ii) was not part of coastal waters taken to be in the AFZ 9 because of section 76; or 10 Fisheries Legislation Amendment (Foreign Fishing Offences) Bill 2006 No. , 2006 5 [Page Break] Part 2 Consequential and technical amendments 1 Part 2--Consequential and technical amendments 2 4 Subparagraph 84(1)(aaa)(i) 3 Omit "101 or 101A", substitute "100B, 101, 101A or 101AA". 4 5 Subparagraph 84(1)(aaa)(v) 5 Omit "101, 101A or 101B", substitute "100B, 101, 101A, 101AA or 6 101B". 7 6 At the end of subsection 100A(4) 8 Add: 9 Note: The defendant bears an evidential burden in relation to the matters in 10 subsection (4). See subsection 13.3(3) of the Criminal Code. 11 7 Subsection 100A(5) 12 Repeal the subsection. 13 8 Paragraph 101A(4)(e) 14 Omit "that area", substitute "the place". 15 9 At the end of subsection 101A(4) 16 Add: 17 Note: The defendant bears an evidential burden in relation to the matters in 18 subsection (4). See subsection 13.3(3) of the Criminal Code. 19 10 Subsection 101A(5) 20 Repeal the subsection. 21 11 Subparagraph 101B(3)(a)(ii) 22 Omit "101 or 101A", substitute "100B, 101, 101A or 101AA". 23 12 Subsection 103(1E) 24 Repeal the subsection. 25 13 Subparagraphs 106A(a)(v) and (vi) 26 Repeal the subparagraphs, substitute: 27 (v) section 100B; or 28 6 Fisheries Legislation Amendment (Foreign Fishing Offences) Bill 2006 No. , 2006 [Page Break] Consequential and technical amendments Part 2 (vi) section 101; or 1 (vii) section 101A; or 2 (viii) section 101AA; 3 14 Subparagraphs 106A(c)(ii) and (d)(ii) 4 Omit "101, 101A or 101B", substitute "100B, 101, 101A, 101AA or 5 101B". 6 15 Subclauses 8(1) and 10(1) of Schedule 1A 7 Omit "101, 101A,", substitute "100B, 101, 101A, 101AA,". 8 16 Subparagraph 15(2)(b)(i) of Schedule 1A 9 Omit "101, 101A", substitute "100B, 101, 101A, 101AA". 10 Fisheries Legislation Amendment (Foreign Fishing Offences) Bill 2006 No. , 2006 7 [Page Break] Part 1 Main amendments 1 Schedule 2--Amendment of the Torres Strait 2 Fisheries Act 1984 3 Part 1--Main amendments 4 1 After section 46 5 Insert: 6 46A Commercial fishing by foreign boat in territorial sea within an 7 area of Australian jurisdiction--general 8 (1) A person commits an offence if: 9 (a) the person engages in taking fish on a boat; and 10 (b) the boat is a foreign boat; and 11 (c) the fish are taken in the course of commercial fishing; and 12 (d) the boat is at a place that is, at the time the person engages in 13 taking the fish, in a part of the territorial sea of Australia that 14 is in an area of Australian jurisdiction. 15 Penalty: 16 (a) if the offender was the master of the boat at the time the 17 offence was committed--2,500 penalty units or 3 years 18 imprisonment, or both; or 19 (b) in any other case--500 penalty units or 2 years 20 imprisonment, or both. 21 (2) The reference to an area of Australian jurisdiction in 22 paragraph (1)(d) does not include a reference to Protected Zone 23 coastal waters of Queensland. 24 Note: For what are Protected Zone coastal waters of Queensland, see 25 section 4. 26 (3) Subsection (1) does not apply if: 27 (a) the fishing is community fishing; or 28 (b) a licence under subsection 19(2) is in force authorising the 29 use of the boat; or 30 (c) a Treaty endorsement is in force authorising the use of the 31 boat for taking fish. 32 8 Fisheries Legislation Amendment (Foreign Fishing Offences) Bill 2006 No. , 2006 [Page Break] Main amendments Part 1 Note: The defendant bears an evidential burden in relation to the matters in 1 subsection (3). See subsection 13.3(3) of the Criminal Code. 2 46B Commercial fishing by foreign boat in territorial sea within an 3 area of Australian jurisdiction--unlicensed master 4 (1) A person commits an offence if: 5 (a) the person is in charge of a boat; and 6 (b) the boat is a foreign boat; and 7 (c) the boat is a boat that is being used for commercial fishing; 8 and 9 (d) the boat is at a place that is, at the time of the use, in a part of 10 the territorial sea of Australia that is in an area of Australian 11 jurisdiction. 12 Penalty: 2,500 penalty units or 3 years imprisonment, or both. 13 (2) The reference to an area of Australian jurisdiction in 14 paragraph (1)(d) does not include a reference to Protected Zone 15 coastal waters of Queensland. 16 Note: For what are Protected Zone coastal waters of Queensland, see 17 section 4. 18 (3) Subsection (1) does not apply if: 19 (a) a master fisherman's licence is in force authorising the 20 person to be in charge of the boat; or 21 (b) a Treaty endorsement is in force authorising the use of the 22 boat; or 23 (c) the use of the boat is for community fishing. 24 Note: The defendant bears an evidential burden in relation to the matters in 25 subsection (3). See subsection 13.3(3) of the Criminal Code. 26 46C Commercial fishing by foreign boat in territorial sea within an 27 area of Australian jurisdiction--processing or carrying 28 fish 29 (1) A person commits an offence if: 30 (a) the person uses a boat; and 31 (b) the boat is a foreign boat; and 32 (c) the use of the boat is for processing or carrying fish that are 33 taken with the use of another boat; and 34 Fisheries Legislation Amendment (Foreign Fishing Offences) Bill 2006 No. , 2006 9 [Page Break] Part 1 Main amendments (d) the fish are processed or carried in the course of commercial 1 fishing; and 2 (e) the boat used for processing or carrying fish is at a place that 3 is, at the time of the use, in a part of the territorial sea of 4 Australia that is in an area of Australian jurisdiction. 5 Penalty: 6 (a) if the offender was the master of the boat at the time the 7 offence was committed--2,500 penalty units or 3 years 8 imprisonment, or both; or 9 (b) in any other case--500 penalty units or 2 years 10 imprisonment, or both. 11 (2) The reference to an area of Australian jurisdiction in 12 paragraph (1)(e) does not include a reference to Protected Zone 13 coastal waters of Queensland. 14 Note: For what are Protected Zone coastal waters of Queensland, see 15 section 4. 16 (3) Subsection (1) does not apply if: 17 (a) a licence under subsection 19(3) is in force authorising the 18 use of the boat for processing or carrying fish (as the case 19 may be) that are taken with the use of another boat; or 20 (b) a Treaty endorsement is in force authorising the use of the 21 boat for processing or carrying fish (as the case may be) that 22 are taken with the use of another boat. 23 Note: The defendant bears an evidential burden in relation to the matters in 24 subsection (3). See subsection 13.3(3) of the Criminal Code. 25 46D Commercial fishing by foreign boat in territorial sea within an 26 area of Australian jurisdiction--trans-shipping fish 27 (1) A person commits an offence if: 28 (a) the person uses a boat; and 29 (b) the boat is a foreign boat; and 30 (c) the use of the boat is for trans-shipping fish to another boat; 31 and 32 (d) the boat used for trans-shipping fish is at a place that is, at the 33 time of the use, in a part of the territorial sea of Australia that 34 is in an area of Australian jurisdiction. 35 Penalty: 36 10 Fisheries Legislation Amendment (Foreign Fishing Offences) Bill 2006 No. , 2006 [Page Break] Main amendments Part 1 (a) if the offender was the master of the boat at the time the 1 offence was committed--2,500 penalty units or 3 years 2 imprisonment, or both; or 3 (b) in any other case--500 penalty units or 2 years 4 imprisonment, or both. 5 (2) The reference to an area of Australian jurisdiction in 6 paragraph (1)(d) does not include a reference to Protected Zone 7 coastal waters of Queensland. 8 Note: For what are Protected Zone coastal waters of Queensland, see 9 section 4. 10 (3) Subsection (1) does not apply if: 11 (a) a licence under subsection 19(3) is in force authorising the 12 use of the other boat; or 13 (b) a Treaty endorsement is in force authorising the use of the 14 other boat for carrying, or for processing or carrying, fish that 15 are taken with the use of another boat. 16 Note: The defendant bears an evidential burden in relation to the matters in 17 subsection (3). See subsection 13.3(3) of the Criminal Code. 18 2 After section 49 19 Insert: 20 49A Bringing foreign boats into territorial sea within an area of 21 Australian jurisdiction 22 (1) A person commits an offence if: 23 (a) the person is the master of a boat; and 24 (b) the boat is a foreign boat; and 25 (c) the boat is a fishing boat; and 26 (d) the person causes the boat to be brought into a place; and 27 (e) the place is, at the time boat is brought into it, in a part of the 28 territorial sea of Australia that is in an area of Australian 29 jurisdiction. 30 Penalty: 500 penalty units or 2 years imprisonment, or both. 31 (2) The reference to an area of Australian jurisdiction in 32 paragraph (1)(e) does not include a reference to Protected Zone 33 coastal waters of Queensland. 34 Fisheries Legislation Amendment (Foreign Fishing Offences) Bill 2006 No. , 2006 11 [Page Break] Part 1 Main amendments Note: For what are Protected Zone coastal waters of Queensland, see 1 section 4. 2 (3) It is a defence to a prosecution for an offence against subsection (1) 3 if the person charged proves that an unforeseen emergency 4 rendered it necessary to bring the boat into that place in order to 5 secure the safety of human life or of the boat. 6 Note: The defendant bears a legal burden in relation to the matter in 7 subsection (3). See section 13.4 of the Criminal Code. 8 (4) Subsection (1) does not apply if: 9 (a) an entry under subsection 21(2) in a licence granted under 10 subsection 19(2) or (3) is in force authorising the boat to be 11 brought into the place; or 12 (b) an entry under subsection 21(2) in a Treaty endorsement is in 13 force authorising the boat to be brought into the place; or 14 (c) at the time the boat is brought into the place, the boat is being 15 used for traditional fishing. 16 Note: The defendant bears an evidential burden in relation to the matters in 17 subsection (4). See subsection 13.3(3) of the Criminal Code. 18 (5) In this section: 19 fishing boat means a boat that is designed and equipped for: 20 (a) catching or capturing fish; or 21 (b) processing fish; or 22 (c) carrying fish; or 23 (d) 2 or more of the purposes mentioned in paragraphs (a), (b) 24 and (c); or 25 (e) supporting the operations of a boat that is, or boats that are, 26 designed and equipped for any one or more of the purposes 27 mentioned in paragraphs (a), (b) and (c). 28 Note: The heading to section 49 is replaced by the heading "Bringing foreign boats and 29 Papua New Guinea boats into the Australian part of the Protected Zone". 30 3 At the end of Division 2 of Part VI 31 Add: 32 51A Having foreign boat equipped for fishing in territorial sea 33 within an area of Australian jurisdiction 34 (1) A person commits an offence if: 35 12 Fisheries Legislation Amendment (Foreign Fishing Offences) Bill 2006 No. , 2006 [Page Break] Main amendments Part 1 (a) the person has a boat in his or her possession, or under his or 1 her control; and 2 (b) the boat is a foreign boat; and 3 (c) the boat is equipped with nets, traps or other equipment for 4 taking fish; and 5 (d) the boat is at a place that is in a part of the territorial sea of 6 Australia that is in an area of Australian jurisdiction. 7 Penalty: 8 (a) if the offender was the master of the boat at the time the 9 offence was committed--2,500 penalty units or 3 years 10 imprisonment, or both; or 11 (b) in any other case--500 penalty units or 2 years 12 imprisonment, or both. 13 (2) It is a defence to a prosecution for an offence against subsection (1) 14 if the person charged proves that, at the time of the alleged offence: 15 (a) the boat's nets, traps and other equipment for taking fish 16 were stowed and secured; and 17 (b) the boat was travelling through an area of Australian 18 jurisdiction from a point outside an area of Australian 19 jurisdiction to another point outside an area of Australian 20 jurisdiction by the shortest practicable route. 21 Note: The defendant bears a legal burden in relation to the matters in 22 subsection (2). See section 13.4 of the Criminal Code. 23 (3) Subsection (1) does not apply if: 24 (a) a licence under section 19 is in force in respect of the boat; or 25 (b) a Treaty endorsement is in force in respect of the boat; or 26 (c) the boat is being used for traditional fishing or community 27 fishing. 28 Note: The defendant bears an evidential burden in relation to the matters in 29 subsection (3). See subsection 13.3(3) of the Criminal Code. 30 (4) A reference to an area of Australian jurisdiction in this section does 31 not include a reference to Protected Zone coastal waters of 32 Queensland. 33 Note: For what are Protected Zone coastal waters of Queensland, see 34 section 4. 35 Note: The heading to section 51 is replaced by the heading "Having boat equipped for 36 fishing--general". 37 Fisheries Legislation Amendment (Foreign Fishing Offences) Bill 2006 No. , 2006 13 [Page Break] Part 1 Main amendments 4 At the end of paragraphs 57(2)(a), (b) and (c) 1 Add "or". 2 5 At the end of subparagraph 57(2)(d)(ii) 3 Add "or". 4 6 At the end of subsection 57(2) 5 Add: 6 ; or (g) that, at a time or during a period specified in the certificate, 7 an area of waters specified in the certificate: 8 (i) was a part of the territorial sea of Australia that was, at 9 the time or during the period, in an area of Australian 10 jurisdiction; and 11 (ii) was not part of the Protected Zone coastal waters of 12 Queensland. 13 Note: For what are Protected Zone coastal waters of Queensland, see 14 section 4. 15 14 Fisheries Legislation Amendment (Foreign Fishing Offences) Bill 2006 No. , 2006 [Page Break] Consequential and technical amendments Part 2 1 Part 2--Consequential and technical amendments 2 7 Subsection 3(1) 3 Insert: 4 territorial sea, in relation to Australia, has the same meaning as in 5 Division 1 of Part II of the Seas and Submerged Lands Act 1973. 6 8 Subparagraphs 42(1)(aa)(i) and (v) 7 Omit "48, 49 or 51", substitute "46A, 48, 49, 49A, 51 or 51A". 8 9 Subsection 49(2) 9 Omit "satisfies the court", substitute "proves". 10 10 At the end of subsection 49(2) 11 Add: 12 Note: The defendant bears a legal burden in relation to the matter in 13 subsection (2). See section 13.4 of the Criminal Code. 14 11 Subsection 51(4) 15 Omit "satisfies the court", substitute "proves". 16 12 At the end of subsection 51(4) 17 Add: 18 Note: The defendant bears a legal burden in relation to the matter in 19 subsection (4). See section 13.4 of the Criminal Code. 20 13 Subsection 52(1) 21 Omit "48, 49, 50 or 51", substitute "46A, 46B, 46C, 46D, 48, 49, 49A, 22 50, 51 or 51A". 23 14 Subparagraphs 52A(a)(ii), (iii) and (iv) 24 Repeal the subparagraphs, substitute: 25 (ii) section 46A; or 26 (iii) section 48; or 27 (iv) section 49; or 28 (v) section 49A; or 29 Fisheries Legislation Amendment (Foreign Fishing Offences) Bill 2006 No. , 2006 15 [Page Break] Part 2 Consequential and technical amendments (vi) section 51; or 1 (vii) section 51A; 2 15 Subparagraphs 52A(b)(ii) and (c)(ii) 3 Omit "48, 49 or 51", substitute "46A, 48, 49, 49A, 51 or 51A". 4 16 Subsection 55(3) 5 Repeal the subsection, substitute: 6 (3) An offence against this Act, other than an offence referred to in 7 subsection (1) or an offence against section 46A, 46B, 46C, 46D, 8 49A or 51A, is punishable summarily. 9 Note: Offences against the sections 46A, 46B, 46C, 46D, 49A and 51A are 10 indictable offences because they are punishable by imprisonment for a 11 period exceeding 12 months: see section 4G of the Crimes Act 1914. 12 17 Subclauses 8(1) and 10(1) of Schedule 2 13 Omit "48, 49 or 51", substitute "46A, 46B, 46C, 46D, 48, 49, 49A, 51 14 or 51A". 15 18 Subclause 13(3) of Schedule 2 (note) 16 After "45", insert ", 46A, 46B, 46C, 46D". 17 19 Subparagraph 15(2)(b)(i) of Schedule 2 18 Omit "48, 49 or 51", substitute "46A, 46B, 46C, 46D, 48, 49, 49A, 51 19 or 51A". 20 16 Fisheries Legislation Amendment (Foreign Fishing Offences) Bill 2006 No. , 2006