Fisheries Management Amendment
Bill 2006

Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The object of this Bill is to amend the Fisheries Management Act 1994 (the principal
Act) as follows:

(a) to make further provision with respect to endorsements on commercial fishing
licences that authorise the taking of fish in particular fisheries, including:

        (i) by making further provision for endorsement conditions, and
        (ii) by making it an offence to contravene a condition of an endorsement,
and
        (iii) by allowing the management plan for a share management fishery to
permit or restrict the issue of multiple endorsements to one person, and
        (iv) by allowing an endorsement that authorises a person to take fish in a
fishery to be given in the form of a separate document from the
commercial fishing licence of the person authorised to take the fish,

(b) to make further provisions with respect to the management charges payable by
shareholders in share management fisheries and the annual contributions
payable by participants in restricted fisheries and in the recreational charter
fishing industry,

(c) to modify record keeping requirements under the principal Act,

(d) to allow the disclosure of information collected under the principal Act to
certain persons,

(e) to allow the Minister to issue permits for fish auctions that are conducted for
charitable purposes,

(f) to require money raised on the sale of forfeited shares in a share management
fishery to be paid into the Commercial Fishing Trust Fund in certain
circumstances,

(g) to allow the Total Allowable Catch Committee (the TAC Committee) to
review and revise a total allowable catch determination in certain
circumstances without further public consultation,

(h) to redefine the ocean trawl share management fishery,
        (i) to make further provision with respect to appeals in relation to the issue of
shares in a share management fishery,

(j) to make other amendments of a statute law revision nature.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on a day or days to be
appointed by proclamation.

Clause 3 is a formal provision that gives effect to the amendments to the Fisheries
Management Act 1994 set out in Schedule 1.

Schedule 1 Amendments
Endorsements on commercial fishing licences
At present, if a fishery is a share management fishery or a restricted fishery, a
commercial fisher is not authorised to take fish in the fishery unless he or she has an
endorsement on his or her commercial fishing licence that authorises the fisher to
take fish in that fishery.

Schedule 1 [11], [14] and [21] make it clear that the Minister has power to revoke
or vary conditions attached to an endorsement (other than conditions prescribed by
the regulations) or add new conditions. The provisions also make it an offence to
contravene a condition of an endorsement. The new provisions are similar to the
existing provisions relating to conditions of commercial fishing licences, fishing boat
licences and charter fishing boat licences.

Schedule 1 [12] allows the Minister to revoke an endorsement in a share
management fishery at the request of the relevant shareholder. It also requires
particulars of endorsements, and any revocation of an endorsement, to be recorded in
the Share Register.

Schedule 1 [9] and [13] allow the management plan for a share management fishery
to provide for the circumstances in which it is permissible for a commercial fisher
(including a shareholder who is a commercial fisher) to engage in fishing activities
in multiple fisheries or on behalf of multiple shareholders.

Schedule 1 [13] also removes the requirement that a shareholder notify the
Director-General if the shareholder revokes a nomination of a commercial fisher to
take fish on the shareholder’s behalf. The new provisions allow the management plan
for the fishery to set out requirements relating to nominations. Schedule 1 [6] and
[7] are consequential amendments.

Schedule 1 [21] includes a provision that allows an endorsement that authorises a
person to take fish in a restricted fishery to be given in the form of a document that
is separate from the commercial fishing licence of the person authorised by the
endorsement to take fish in the fishery. Schedule 1 [15] inserts a similar provision in
relation to special endorsements in share management fisheries. A similar provision
that already exists in relation to ordinary endorsements in share management
fisheries is revised by Schedule 1 [12] so as to confirm that an endorsement given in
the form of such a separate document is taken, for purposes of the principal Act and
the regulations, to be an endorsement on the commercial fishing licence of the person
authorised by the endorsement to take fish in the fishery.

Schedule 1 [36] includes savings and transitional provisions in relation to the above
changes.

Management charges and annual contributions
At present, shareholders in a share management fishery are required to pay a
management charge determined by the Minister for each fishing period during which
the commercial fishing licences of the shareholders (or their nominees) are endorsed
to take fish in the fishery. In addition, commercial fishers (whether or not
shareholders) are subject to a requirement to pay an annual contribution to the costs
of research and other commercial fishing industry costs in accordance with the
regulations.

Schedule 1 [17] extends the requirement that shareholders in a share management
fishery pay a management charge determined by the Minister, so that the
management charge will be payable whether or not a shareholder is taking fish, or
has nominated a person to take fish, in the fishery. The charge will be payable
annually, or as otherwise determined by the Minister.

Schedule 1 [18] allows a single management charge to be applied to a shareholder in
several share management fisheries or in respect of a single fishing business that
includes shares in several share management fisheries.

Schedule 1 [20] removes the requirement that holders of a commercial fishing
licence pay an annual contribution to research and other industry costs. However,
under Schedule 1 [22], an annual contribution will now be payable by participants in
a restricted fishery if the regulations so require it. The contribution will be payable
into the Commercial Fishing Trust Fund and payable towards the various purposes
for which that Fund may be used (similar to the management charge payable by
shareholders in share management fisheries).

Persons who hold a charter fishing boat licence will also be required to pay an annual
contribution to industry costs, if the regulations so require it, as a result of Schedule
1 [26]. The contribution will be payable into the Charter Fishing Trust Fund and
payable towards the various purposes for which that Fund may be used.

Schedule 1 [36] and [37] include savings and transitional provisions in relation to
the above changes.

Schedule 1 [19] makes a statute law revision amendment to ensure that the
management charge provisions in the principal Act, in relation to charging of
interest, are consistent.

Record keeping requirements
Schedule 1 [25] and [27] allow the regulations to require records to be kept by
commercial fishers, persons who nominate commercial fishers to take fish on their
behalf, fish receivers, and charter fishing boat operators and licence holders. The
requirements that may be imposed by the regulations are more extensive than the
record keeping requirements currently contained in the principal Act, and include
provision for a record to be kept of commercial fishing activities engaged in where
no fish are taken or of periods in which no fishing activities are engaged in. The
provisions also ensure that both commercial fishers and the business owners who
nominate them may be held responsible for providing records in relation to fishing
activities. Similarly, both the master of a charter fishing boat and the licence holder
for that boat may be held responsible for providing records in relation to charter
fishing activities under the new requirements.

Schedule 1 [23] and [24] are consequential amendments.

Disclosure of information
Schedule 1 [29] allows certain information obtained by the Department of Primary
Industries under the principal Act to be disclosed in limited circumstances, without
the consent of the person who provided it. The provision will allow:

(a) disclosure of information provided by a nominated fisher of a person, to the
person who nominated him or her, insofar as it relates to activities conducted
on behalf of that person, and

(b) disclosure of information held in connection with the fishing business, to the
owner of a fishing business (including information provided before the owner
became the owner of that fishing business), and

(c) disclosure of information provided by the master of a licensed charter fishing
boat in connection with the use of the boat for recreational fishing activities,
to the holder of the charter fishing boat licence for the boat.

Schedule 1 [38] makes it clear that the provision extends to information already held
by the Department.

Permits authorising sale of fish for charitable purposes
Schedule 1 [5] allows the Minister to issue a permit that authorises the sale of fish,
by auction, for a charitable purpose. It is envisaged that such permits will authorise
fish taken in a recreational fishing competition to be sold for a charitable purpose at
the end of the competition. Participants in the competition will not, as a result of the
anticipated sale, be regarded as taking the fish concerned for sale (and will continue
to be treated as recreational fishers).

Schedule 1 [28] makes it clear that such a permit cannot be issued to authorise harm
to threatened species, populations or ecological communities or to damage habitat.

Redefinition of ocean trawl fishery
Schedule 1 [33] redefines the ocean trawl fishery to extend the fishery to the use of
a danish seine trawl net (fish) to take fish from ocean waters that are north of a line
drawn due east from Barrenjoey Headland, and to omit the waters of Jervis Bay from
the fishery (as trawling in those waters is no longer permitted). Schedule 1 [36]
includes a provision that ensures that shares provisionally issued in the fishery
continue to have effect, despite that redefinition.

Public consultation by TAC Committee
Schedule 1 [3] allows the TAC Committee to review a determination of total
allowable catch made following public consultation (an initial determination),
without further public consultation, and to make a new or different determination of
total allowable catch following that review, within 6 months after making an initial
determination. The TAC Committee will continue to be required to undertake public
consultation if the review occurs at a later stage, or if the Minister directs it.

Schedule 1 [30] and [32] confirm that the public consultation procedure provided
for by the principal Act applies to the TAC Committee.

Sale of forfeited shares
At present, shares in a share management fishery may be forfeited for certain
contraventions of the principal Act or for a failure to pay a community contribution
or other amount due under the principal Act. The shares are sold by public tender,
and the purchase price paid to the Consolidated Fund.

Schedule 1 [16] provides that if the shares are forfeited for a failure to pay an amount
that would, on payment, be paid into the Commercial Fishing Trust Fund, the amount
outstanding is to be deducted from the purchase price and paid to that Fund (rather
than the Consolidated Fund).

It also makes it clear that, where shares are forfeited for a failure to pay an amount
payable under the principal Act, any proceeds of sale exceeding the amount payable
is to be refunded to the shareholder.

Appeals to Share Management Fisheries Appeal Panel
Many of the existing share management fisheries under the principal Act were
wholly or partially restricted fisheries when shares in the fishery were provisionally
issued. Under the principal Act, the persons eligible for shares in such fisheries are
the persons entitled to take fish in the relevant restricted fisheries. Schedule 1 [35]
modifies an existing provision of the principal Act that applies in respect of particular
restricted fisheries. The existing provision prevents an appeal from being made to the
Share Management Fisheries Appeal Panel in relation to a determination made
before the restricted fishery became a share management fishery if the determination
could have been made the subject of a review request under the former regulations
under the principal Act. The amendment extends the provision to ensure that there is
no appeal in relation to any restricted fishery determination (including any associated
determination of catch history) for which an internal review procedure was available.

The purpose of the provision is to ensure that appeals in relation to the issue of shares
in a share management fishery do not reopen any previously settled issues relating to
eligibility for an endorsement in a restricted fishery.

Other amendments
Schedule 1 [1] and [2] update references in the principal Act to the Department
responsible for administering the principal Act.

Schedule 1 [2] and [4] define owner of a fishing business, for the purposes of
provisions of the principal Act that use that expression (including the new provisions
described above relating to record keeping requirements and disclosure of
information).

Schedule 1 [8] makes a statute law revision amendment to confirm that a provision
that requires a shareholder to have not less than the minimum shareholding in a
fishery extends to fisheries that have different minimum shareholdings for different
classes of shares.

Schedule 1 [10] makes a statute law revision amendment to insert an omitted word.

Schedule 1 [31] makes a statute law revision amendment to confirm that the public
consultation requirements under the principal Act also apply to supporting plans
made under the principal Act.

Schedule 1 [34] provides for the making of savings and transitional regulations as a
consequence of the amendments to the principal Act.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

---

[Index] [Search] [Download] [Bill] [Help]