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2010 - 2011 - 2012
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION
AMENDMENT (DECLARED COMMERCIAL FISHING ACTIVITIES)
BILL 2012
REVISED EXPLANATORY MEMORANDUM
THIS EXPLANATORY MEMORANDUM TAKES ACCOUNT OF
AMENDMENTS MADE BY THE HOUSE OF REPRESENTATIVES TO THE
BILL AS INTRODUCED
(Circulated by authority of the Minister for Sustainability, Environment, Water,
Population and Communities, the Honourable Tony Burke, MP)
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Environment Protection and Biodiversity Conservation
Amendment (Declared Commercial 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 impacts of a
declared commercial fishing activity and to prohibit the declared commercial 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
commercial fishing activity, to be a `declared commercial fishing activity' on
an interim basis (interim declaration) if both Ministers agree that:
o there is uncertainty about the environmental impacts of the commercial
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 commercial fishing activity should be prohibited while
consultation occurs,
· enable the Minister, with the agreement of the Fisheries Minister, to declare a
commercial fishing activity to be a declared commercial 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 impacts of the commercial
fishing activity;
o it is appropriate to establish an expert panel to conduct an assessment of
the commercial fishing activity; and
o the declared commercial fishing activity should be prohibited while the
expert panel conducts its assessment of the commercial 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
commercial fishing activity that has not been the subject of an interim
declaration;
· clarify that the declaration provisions will only be operative for a period of 12
months from the date of commencement of the amendments;
· create civil penalty and offence provisions for engaging in a declared
commercial fishing activity;
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· provide for the establishment of an expert panel to conduct an assessment of
the potential environmental impacts of the declared commercial fishing
activity, as specified in its terms of reference, and report to the Minister; and
· 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
Commercial 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 impacts of a
declared commercial fishing activity and to prohibit the declared commercial 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 commercial 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 commercial 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 commercial 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 commercial fishing activities that may
have uncertain environmental 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 Commercial Fishing
Activities) Act 2012 (the Amendment Act).
Clause 2: Commencement
2. The Amendment Act will commence on the day it receives Royal Assent.
Clause 3: Schedules
3. This clause provides for amendments to the Environment Protection and
Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) specified in the
Schedule.
Schedule 1 - Declared commercial fishing activities
Item 1 - Chapter 5B
Prohibition on declared commercial fishing activities in a Commonwealth marine
area
4. New sections 390SA and 390SB prohibit people from engaging in a `declared
commercial 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
commercial fishing activity for the purposes of Chapter 5B is a commercial
fishing activity (as defined in subsection 390SC(1A)) 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.
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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 EPBC
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 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 commercial fishing activity and commercial fishing activity
8. Section 390SC defines both a `declared commercial fishing activity' (being an
activity declared under an interim or final declaration) and `commercial fishing
activity'.
9. A `commercial fishing activity' is defined to be a fishing activity that is engaged
in for a commercial purpose, and, to avoid doubt, does not include an activity
that constitutes recreational fishing (within the meaning of subsection 212(2)) of
the EPBC Act (subsection 390SC(1A)).
10. Subsection 212(2) of the EPBC Act defines `recreational fishing' to include the
following types of fishing:
a. fishing from a charter boat (within the meaning of the Fisheries
Management Act 1991), including fishing by the person in charge of the
boat, the crew of the boat or any other person on the boat;
b. fishing in a fishing competition (whether or not in a professional capacity);
and
c. fishing that is undertaken primarily for:
i. inclusion on a website, or in a film, video, television program or radio
program; or
ii. description or representation in a magazine, newspaper, book or other
such document.
11. The definition of `commercial fishing activity' clarifies that the Minister will not
be able to make an interim or final declaration in respect of recreational fishers
or charter boat operators.
12. 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 commercial fishing activities - interim declaration
13. Under section 390SD, the Minister may make an interim declaration specifying
a commercial fishing activity but only if the Fisheries Minister agrees that:
a. there is uncertainty about the environmental impacts of the commercial
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
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detrimentally affected by the making of a final declaration for the same
commercial fishing activity (being a declaration affected person); and
c. the declared commercial fishing activity should be prohibited while
consultation occurs.
14. In making a declaration for a specified commercial fishing activity, the Minister
can characterise that commercial 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 commercial fishing
activity that is quite narrow in scope, by specifying numerous factors that must
be met to constitute the `declared commercial 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
commercial 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 commercial
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 commercial
fishing activity.
15. The Minister will not be able to make an interim declaration in respect of a
commercial fishing activity if the activity has been engaged in before
11 September 2012 in a Commonwealth marine area (subsection 390SD(2A)).
This will also have the effect of limiting the Minister's power to make a final
declaration because the Minister can only make a final declaration in respect of
the same activity which was the subject of an interim declaration.
16. The objective of the interim declaration process is to enable a cautious approach
to be adopted by promptly prohibiting a commercial fishing activity where there
is uncertainty about the potential impacts of the commercial 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)).
17. An interim declaration is a legislative instrument for the purposes of the
Legislative Instruments Act (see subsection 390SD(1)).
Consultation
18. 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)).
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19. 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 commercial fishing activity
(subsection 390SE(3)).
20. 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.
21. 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 commercial fishing activities - final declaration
22. The Minister may under section 390SF, declare a commercial fishing activity to
be a declared commercial 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 impacts of the commercial
fishing activity;
b. it is appropriate to establish an expert panel to conduct an assessment of
the commercial fishing activity; and
c. the declared commercial fishing activity should be prohibited while the
expert panel conducts its assessment of the commercial fishing activity.
23. The commercial fishing activity that is the subject of a final declaration must be
the same commercial 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 commercial 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
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rights or interests. This process ensures that all affected fishing concession
holders are accorded procedural fairness.
24. A final declaration is a legislative instrument for the purposes of the Legislative
Instruments Act (see subsection 390SF(1)).
Revoking declarations
25. The Minister may revoke either an interim or final declaration (subsection
390SG(1)).
26. A revocation instrument is a legislative instrument for the purposes of the
Legislative Instruments Act (subsection 390SG(1)).
Expert panel assessment of declared commercial fishing activity
27. 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 commercial fishing activity. The panel must consist of
one or more members appointed by the Minister.
28. 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
commercial fishing activity to be the subject of the assessment by the panel
including matters such as the potential 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)).
29. 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)).
30. The terms of reference (including any amendments) must be published on the
Department's website and laid before Parliament (subsection 390SH(4)).
31. 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).
32. 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
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
33. 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
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Minister must also comply with any other publication requirements specified in
the regulations.
34. 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 commercial fishing activity has, will have, or is likely to
have, a significant impact on a matter of national environmental significance, the
relevant provisions of the EPBC Act will apply.
35. 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)).
Sunsetting
36. Section 390SM provides that no new declarations can be made under Chapter
5B from the date 12 months after the day of commencement of the Amendment
Act.
37. Section 390SM will not affect any existing declarations or assessments. Existing
declarations will remain in force until they expire or are revoked in accordance
with the provisions of Chapter 5B and any assessments underway in respect of
the impacts of a declared commercial fishing will continue. The Minister will
also be able to assemble an expert panel to assess the impacts of a commercial
fishing activity that was the subject of a final declaration made before the
sunsetting date.
Item 2 - Section 494
38. 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
39. 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 3A - 12
40. These items insert new definitions relevant to Chapter 5B into section 528 of the
EPBC 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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