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2010 - 2011 - 2012
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION
AMENDMENT (DECLARED FISHING ACTIVITIES) BILL 2012
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Sustainability, Environment, Water,
Population and Communities, the Honourable Tony Burke, MP)
Environment Protection and Biodiversity Conservation
Amendment (Declared Fishing Activities) Bill 2012
OUTLINE
This Bill amends the Environment Protection and Biodiversity Conservation Act 1999
(Cth) (EPBC Act) to provide for the Minister to establish an independent expert panel
(expert panel) to conduct an assessment into the potential environmental, social and
economic impacts of a declared fishing activity and to prohibit the declared fishing
activity while the assessment is undertaken.
The amendments create a new Chapter 5B of the EPBC Act to:
· enable the Minister, with the agreement of the Minister administering the
Fisheries Management Act 1991 (Cth) (Fisheries Minister), to declare a
fishing activity, to be a `declared fishing activity' on an interim basis
(interim declaration) if both Ministers agree that:
o there is uncertainty about the environmental, social or economic
impacts of the fishing activity;
o it is appropriate to consult with fishing concession holders who consider
themselves to be detrimentally affected by the making of a final
declaration for the same fishing activity (declaration affected person);
and
o the declared fishing activity should be prohibited while consultation
occurs,
· enable the Minister, with the agreement of the Fisheries Minister, to declare a
fishing activity to be a declared fishing activity for a period of no longer than
24 months (final declaration) if both Ministers agree that:
o there is uncertainty about the environmental, social or economic
impacts of the fishing activity;
o it is appropriate to establish an expert panel to conduct an assessment of
the fishing activity; and
o the declared fishing activity should be prohibited while the expert panel
conducts its assessment of the fishing activity,
· ensure procedural fairness by requiring that the Minister must consider the
written submissions of declaration affected persons before making a final
declaration. Further, the Minister cannot make a final declaration for a fishing
activity that has not been the subject of an interim declaration;
· create civil penalty and offence provisions for engaging in a declared fishing
activity;
· provide for the establishment of an expert panel to conduct an assessment of
the potential environmental, social or economic impacts of the declared
fishing activity, as specified in its terms of reference, and report to the
Minister; and
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· provide for the publication of the report of the expert panel and the tabling of
the report in Parliament.
FINANCIAL IMPACT STATEMENT
The financial implications of this Bill are likely to include costs in engaging and
supporting the expert panel (which would be met within portfolio resources).
REGULATORY IMPACT STATEMENT
The Prime Minister has granted an exemption from the regulatory impact statement
requirements. However, a post-implementation review will commence within one to
two years from the date the Bill is implemented.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
Environment Protection and Biodiversity Conservation Amendment (Declared
Fishing Activities) Bill 2012
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
This Bill amends the Environment Protection and Biodiversity Conservation Act 1999
(Cth) (EPBC Act) to provide for the Minister to establish an independent expert panel
(expert panel) to conduct an assessment into the potential environmental, social and
economic impacts of a declared fishing activity and to prohibit the declared fishing
activity while the assessment is undertaken.
Human rights implications
The Bill engages the human right of the presumption of innocence.
The Bill will create a new criminal offence in respect of people who engage in
`declared fishing activities' in the Commonwealth marine area. Strict liability applies
to the circumstance that an action is taken in a Commonwealth marine area which is
consistent with similar offence provisions in the EPBC Act dealing with the
Commonwealth marine area (see for example in Part 3 and Part 13).
It is appropriate that strict liability apply to the Commonwealth marine area element of
the offence as it may be difficult to prove that a person knew they were in a
Commonwealth marine area (or were reckless to that fact) making the offence difficult
to prosecute and accordingly undermining the deterrent effect of the provisions. The
application of strict liability is also justifiable on the basis that a defendant can
reasonably be expected, because of his or her professional involvement in the fishing
industry, to know the requirements of the law. Although the penalty for the offence is
higher than those applicable to most other offences in the EPBC Act, it is identical to
the offences in Part 3 of the EPBC Act and is at an appropriate level to deter people
from engaging in declared fishing activities.
The imposition of strict liability still allows a defendant to raise a defence of honest
and reasonable mistake. This ensures that a person cannot be held liable if he or she
had an honest and reasonable belief that they were complying with relevant
obligations. Although it is possible that this defence may not cover a situation where a
person is on a prescribed vessel which for some reason such as engine failure, for
example, enters a Commonwealth marine area, a ministerial declaration will generally
specify the fishing activity by reference to a number of criteria (such as the type of
vessel and the method of processing, carrying or transhipping fish), rather than a
single characteristic. This will mitigate the possibility of a declaration applying
arbitrarily to a particular operator who is not intended to be caught by a declaration.
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The application of strict liability is a proportionate limitation on the right to the
presumption of innocence because of the public interest in ensuring the sustainable use
of resources in the Commonwealth marine area.
The strict liability offence in the Bill has been drafted consistently with the principles
set out in A Guide to Framing Commonwealth Offences, Infringement Notices and
Enforcement Powers developed by the Criminal Justice Division of the Attorney -
General's Department.
Conclusion
The Bill is compatible with human rights because to the extent that it may limit human
rights, those limitations are reasonable, necessary and proportionate to the objective of
preventing people from engaging in declared fishing activities that may have uncertain
environmental, social or economic impacts until those impacts are assessed.
Minister for Sustainability, Environment, Water, Population and Communities
the Hon Tony Burke MP
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NOTES ON CLAUSES
Clause 1: Short Title
1. This clause provides that the Act may be cited as the Environment Protection
and Biodiversity Conservation Amendment (Declared Fishing Activities) Act
2012 (the EPBC Act).
Clause 2: Commencement
2. The Act will commence on the day it receives Royal Assent.
Clause 3: Schedules
3. This clause provides for amendments to the Act specified in the Schedule.
Schedule 1 - Declared fishing activities
Item 1 - Chapter 5B
Prohibition on declared fishing activities in a Commonwealth marine area
4. New sections 390SA and 390SB prohibit people from engaging in a `declared
fishing activity' in a Commonwealth marine area. The Commonwealth marine
area is defined in section 24A of the EPBC Act. Both civil penalty and criminal
offence provisions are included. A declared fishing activity for the purposes of
Chapter 5B is a fishing activity specified in either an interim declaration in force
under new section 390SD, or a final declaration in force under new section
390SF. Division 2 of Chapter 5B sets out the process for the making of interim
and final declarations.
5. Subsection 390SB(2) provides for strict liability to apply in relation to the
circumstance that an action is taken in a Commonwealth marine area (paragraph
390SB(1)(b)). The intent of this provision is to make it clear that the prosecution
does not have to show a person knew or was reckless as to the fact that the
action occurred in a Commonwealth marine area. This is consistent with the
approach taken for other offences in the EPBC Act which are committed in the
Commonwealth marine area or a Commonwealth area.
6. Both an interim declaration and final declaration are legislative instruments for
the purposes of the Legislative Instruments Act 2003 (Cth) (Legislative
Instruments Act). As the Legislative Instruments Act requires the publication
of legislative instruments, people will be alerted to the fact that certain actions
are an offence if taken in a Commonwealth marine area and cannot claim
ignorance of the law as an excuse for criminal behaviour.
7. The penalty units specified for the civil penalty provision and the penalties for
the criminal offence provisions are consistent with other provisions in the Act
(see for example Part 3). An executive officer of a body corporate may be liable
for such a contravention if the person knew or was reckless as to whether the
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contravention occurred, was in a position to influence the conduct of the
company and failed to take all reasonable steps to prevent the contravention (see
sections 494 and 495 of the EPBC Act).
Defining a declared fishing activity and fishing activity
8. Section 390SC defines both a `declared fishing activity' (being an activity
declared under an interim or final declaration) and `fishing activity'. The
definition of `fishing' is defined in section 528 and is the same definition that is
used in the Fisheries Management Act 1991 (Cth) (the FM Act).
Declaring fishing activities - interim declaration
9. Under section 390SD, the Minister may make an interim declaration specifying
a fishing activity but only if the Fisheries Minister agrees that:
a. there is uncertainty about the environmental, social or economic impacts
of the fishing activity;
b. it is appropriate to consult with fishing concession holders (and any other
persons prescribed by the regulations) who consider themselves to be
detrimentally affected by the making of a final declaration for the same
fishing activity (being a declaration affected person); and
c. the declared fishing activity should be prohibited while consultation
occurs.
10. In making a declaration for a specified fishing activity, the Minister can
characterise that fishing activity by reference to one or more factors including a
type of vessel, a method of fishing, processing carrying or transhipping of fish or
an area of waters or of seabed (see subsection 390SD(2)). This provides the
Minister with the ability to declare a fishing activity that is quite narrow in
scope, by specifying numerous factors that must be met to constitute the
`declared fishing activity' (for example by prescribing the fishing activity as
being undertaken through a combination of a vessel type and a gear type and in a
particular area of waters). The intention is that by selecting a combination of
identifying factors that narrowly scope the fishing activity of concern, fishing
concession holders who may have a type of vessel or use a method of fishing
that is described in the declaration will not otherwise be caught by an interim or
final declaration unless the fishing concession holder meets all the specified
factors for the fishing activity. The consultation process with all declaration
affected persons will also minimise the risk of a final declaration inadvertently
capturing fishing operations that are not intended to be the subject of a declared
fishing activity.
11. The objective of the interim declaration process is to enable a cautious approach
to be adopted by promptly prohibiting a fishing activity where there is
uncertainty about the potential impacts of the fishing activity, while the Minister
consults with affected fishing concession holders about a longer-term prohibition
for the same specified activity (during which an assessment of the impacts
would be conducted). Accordingly an interim declaration is only a short-term
measure and can be in force for no longer than 60 days (see subsection
390SD(5)).
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12. An interim declaration is a legislative instrument for the purposes of the
Legislative Instruments Act (see subsection 390SD(1)).
Consultation
13. The Minister must, as soon as possible following the making of an interim
declaration, publish a notice on the Department's website. The notice must invite
all declaration affected persons to make written submissions (subsections 390SE
(1) and (2)).
14. A `declaration affected person' is a person who holds a fishing concession (or
otherwise meets some other characteristic prescribed by the regulations) and
considers that they would be detrimentally affected by the making of a final
declaration under section 390SF in relation to the fishing activity (subsection
390SE(3)).
15. The intention of this section is to ensure that any fishing concession holders who
may be adversely impacted by a final declaration decision (for example, because
they would be prohibited from fishing under a final declaration) have an
opportunity to make submissions to the Minister about how their rights or
interests would be affected under a final declaration. This is so that the Minister
can take those submissions into account before making a final declaration. This
process ensures that all affected fishing concession holders are accorded
procedural fairness. The term `fishing concession' is defined in section 528 to
have the same meaning as in the FM Act. Fishing concessions are a statutory
fishing right, a fishing permit or a foreign fishing licence. These terms are also
defined in the FM Act.
16. Declaration affected persons must be provided with at least 11 business days to
submit comments (subsection 390SE(4)). This is considered to be a minimum
reasonable period for consultation. This is in line with the Australian
Government Response to the Report of the Independent Review of the
Environment Protection and Biodiversity Conservation Act 1999 which agreed
with Recommendation 45(1)(c) to ensure that no public consultation process is
shorter than 11 business days.
Declaring fishing activities - final declaration
17. The Minister may under section 390SF, declare a fishing activity to be a
declared fishing activity for a period of no longer than 24 months (final
declaration) but only if consultation has occurred in accordance with section
390SE, the Minister has considered the written submissions of declaration
affected persons, and if the Minister and the Fisheries Minister agree that:
a. there is uncertainty about the environmental, social or economic impacts
of the fishing activity;
b. it is appropriate to establish an expert panel to conduct an assessment of
the fishing activity; and
c. the declared fishing activity should be prohibited while the expert panel
conducts its assessment of the fishing activity.
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18. The fishing activity that is the subject of a final declaration must be the same
fishing activity that was the subject of an interim declaration (subparagraph
390SF(2)(a)). This would ensure that all potentially affected fishing concession
holders have the opportunity to provide submissions before a final declaration is
made. In the event that it is considered appropriate to amend the nature of the
declared fishing activity following a consultation process, a further interim
declaration process must take place to ensure all potentially affected operators
are given an opportunity to be heard prior to the making of a final declaration
that may detrimentally affect their rights or interests. This process ensures that
all affected fishing concession holders are accorded procedural fairness.
19. A final declaration is a legislative instrument for the purposes of the Legislative
Instruments Act (see subsection 390SF(1)).
Revoking declarations
20. The Minister may revoke either an interim or final declaration (subsection
390SG(1)).
21. A revocation instrument is a legislative instrument for the purposes of the
Legislative Instruments Act (subsection 390SG(1)).
Expert panel assessment of declared fishing activity
22. Section 390SH provides for the Minister to, as soon as practicable after making
a final declaration, establish an expert panel to conduct an assessment and
prepare a report about the fishing activity. The panel must consist of one or more
members appointed by the Minister.
23. In doing so, the Minister and the Fisheries Minister must agree on the terms of
reference for the assessment and the date on which the expert panel must report
to the Minister. The terms of reference would set out the matters relating to the
fishing activity to be the subject of the assessment by the panel including matters
such as the potential social, economic or environmental impacts of the activity.
The terms of reference can only be amended or revoked with the agreement of
the Fisheries Minister (subsection 390SH(3)).
24. It is open to the Minister to specify in the terms of reference, the manner in
which the panel is to carry out the assessment (subsection 390SH(2)).
25. The terms of reference (including any amendments) must be published on the
Department's website and laid before Parliament (subsection 390SH(4)).
26. In establishing the expert panel, the Minister must determine the terms and
conditions of the appointment of members to the expert panel, including term of
office, remuneration, allowances and procedures for dealing with conflicts of
interest (section 390SI).
27. The expert panel must comply with the terms of reference (including the due
date for the delivery of the report (section 390SK)) but may otherwise determine
the day to day procedures to be followed in conducting the assessment (section
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390SJ). The expert panel is required to provide the report on a specified date to
ensure certainty around the timing of the assessment process.
Publication of expert panel report
28. Once the Minister receives a copy of the report from the expert panel, the
Minister must cause the report to be published on the Department's website
within 20 business days and laid before Parliament within 15 sitting days. The
Minister must also comply with any other publication requirements specified in
the regulations.
29. Following receipt of the report from the expert panel, the Minister will
determine what, if any, further actions needs to be undertaken. To the extent the
report reveals that the fishing activity will, or may have, a significant impact on
a matter of national environmental significance, the relevant provisions of the
EPBC Act will apply.
30. The final declaration comes to an end at the end of the day on which the report is
published (unless it has otherwise expired or been revoked) (subsection
390SF(3)).
Item 2 - Section 494
31. Item 2 of Schedule 1 amends section 494 of the EPBC Act. The effect of this
amendment will be to make an executive officer of a body corporate liable in the
event there is a contravention of the civil penalty provision in section 390SA by
their company and the executive officer knew or was reckless as to whether the
contravention occurred, was in a position to influence the conduct of the
company and failed to take all reasonable steps to prevent the contravention.
Item 3 - Section 495
32. Item 3 of Schedule 1 amends section 495 of the EPBC Act. The effect of this
amendment will be to make an executive officer of a body corporate liable in the
event there is a contravention of the criminal offence provision in section 390SB
by their company and the executive officer knew or was reckless as to whether
the contravention occurred, was in a position to influence the conduct of the
company and failed to take all reasonable steps to prevent the contravention.
Items 4 - 12
33. These items insert new definitions relevant to Chapter 5B into section 528 of the
Act. The definitions of `fish', `fishing' and `fishing concession' employ the
same definitions as those used in the FM Act, to promote consistency.
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