Commonwealth of Australia Explanatory Memoranda

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FISHERIES LEGISLATION AMENDMENT (COMPLIANCE AND DETERRENCE MEASURES AND OTHER MATTERS) BILL 2003

2002-2003







THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA







THE SENATE








FISHERIES LEGISLATION AMENDMENT (COMPLIANCE AND DETERRENCE MEASURES AND OTHER MATTERS) BILL 2003










EXPLANATORY MEMORANDUM










(Circulated by authority of the Minister for Fisheries, Forestry and Conservation, Senator the Hon Ian Macdonald)

FISHERIES LEGISLATION AMENDMENT (COMPLIANCE AND DETERRENCE MEASURES AND OTHER MATTERS) BILL 2003


GENERAL OUTLINE
2.12 The Bill amends the Fisheries Management Act 1991 (FMA) and the Fisheries Administration Act 1991 (FAA) to:
3. put in place more effective deterrence and compliance regimes to help deter foreign fishers from illegally fishing in Australian waters;.
4. improve the operating efficiency and effectiveness of Australian Fisheries Management Authority (AFMA) in its management of Commonwealth fisheries resources; and
5. promote the sustainable utilisation of Commonwealth fisheries / promote ecologically sustainable practices in Commonwealth-managed fisheries.
5.12 These amendments are a result of ongoing refinements in fisheries management practices and changing circumstances in Commonwealth-managed fisheries. They cover a diverse range of subjects, including:
• increasing the maximum penalty available under the FMA for foreign fishing offences committed in the Australian Fishing Zone;
• strengthening the bond arrangements for foreign boats that have been seized and forfeited to the Commonwealth by enabling the Australian Government’s reasonable costs of pursuit and apprehension to be deemed to be a debt owing to the Commonwealth and enabling it to be in included in a bond or recovered from the owner of the foreign boat;
• providing for members of management advisory committees (MACs) to be paid remuneration and allowances;
• establishing a public register of fishing permits;
• allowing AFMA to waive levy payment if a fishing permit is surrendered before any fishing has been undertaken;
• requiring original fishing concessions to be physically returned to AFMA when they are surrendered; and
• allowing fisheries officers, where it is physically impossible to do so, to not produce a written identification before exercising their powers. They must present written identification at the first available opportunity.
5.13 These amendments have been prepared in full consultation with industry through AFMA’s well-established management advisory committee process, and have been considered and approved by the AFMA Board.
Financial Impact Statement
5.14 The amendments to increase the effectiveness of AFMA’s management of Commonwealth fisheries are not expected to impose a significant burden or cost on the Australian Government or the fishing industry. Most of the minor administrative costs involved with implementing the amendments (estimated at $10,000 per annum in total) will be shared between AFMA and the fishing industry. Any minor additional licensing costs and the direct costs of collecting and reporting additional information to AFMA will be recovered from the holders of Australian fishing concessions under the Australian Government’s cost recovery policy.
5.15 The costs for remunerating and providing allowances to the industry members of MACs, estimated to be over $100,000 per annum, will be recovered from industry.
5.16 Those costs incurred by the Government in enforcing the debt recovery from the pursuit and apprehension of foreign boats found illegally fishing in Australian waters will be met from within AFMA’s resources. Any revenue received would be paid to the Consolidated Revenue Fund.
Regulation Impact Statement concerning proposed amendments to the Fisheries Management Act 1991 to give AFMA a power make Directions in respect of permits under Section 32 and Licenses under sections 33, 34 and 40 (prepared and completed in 2002)
Background
5.17 Subsection 17(1) of the Fisheries Management Act 1991 (FMA) requires the AFMA to determine management plans for all fisheries under its control. Subsection 17(1A) empowers AFMA to make a determination that, in respect of a particular fishery, a management plan is not warranted.
5.18 Paragraph 17(6)(b) provides that a management plan may provide for management of a fishery by a system of statutory fishing rights and other fishing concessions. Statutory fishing rights are the most secure right under the FMA, have an indefinite life and holdings are on a public register. Charges on and third party interests in such rights can also be registered.
5.19 Where AFMA has determined that a management plan is not warranted, or is yet to determine a management plan for a fishery, two other types of fishing concessions are offered:
6. Fishing permits granted under section 32; and
7. Foreign fishing licences granted under section 34.
7.12 Other types of licences that may be granted under the FMA are:
8. Scientific permits under section 33;
9. Foreign master fishing licenses under section 40.
9.12 Subsection 17(5A) of the FMA provides that a plan of management may contain provisions which enable AFMA, after such consultation (if any) as set out in the plan, to make directions that fishing not be carried out in a fishery or part of a fishery during particular times. Holders of fishing concessions subject to the plan are bound by the direction and these concession holders can include SFR holders, permit holders and foreign fishing license holders.
9.13 However, AFMA cannot make similar directions where there is no plan of management in force. Most permit holders operate in fisheries that are not yet subject to management plans and hence cannot be subject to directions under subsection 17(5A). There are no current foreign fishing licenses.
The Problem
9.14 Although the trend is to determine management plans for all fisheries as required by legislation, the reality is that many significant fisheries remain managed under administrative arrangements based on the grant of permits under section 32. This, in part, is due to the long lead-time from the decision to determine a management plan, to the coming into effect of the plan, which experience has shown to be 2-3 years.
9.15 Of 19 fisheries listed in the 2000-2001 Annual Report as fisheries managed under the FMA as at 2 July 2002, AFMA has determined management plans for:
10. Northern Prawn Fishery;
11. Southern Bluefin Tuna Fishery;
12. South East Trawl Fishery;
13. Great Australian Bight Trawl Fishery ; and
14. Heard Island and McDonald Islands Fishery.
14.12 In five other fisheries, (Southern Shark, South East Non Trawl, Bass Strait Scallop, East Coast Tuna and Billfish, and West Coast Tuna and Billfish), plans are expected to be in effect by 30 June 2003.
14.13 The total GVP of fisheries managed by AFMA under the FMA in the year 2000-2001 is estimated at approximately $444 million of which value approximately $311 million is accounted for by the 5 fisheries to which management plans currently apply.
14.14 High seas fishing for SBT is covered by a management plan and most high seas fishing will be covered by one of the management plans currently being developed. Management plans may be introduced for some of the remaining fisheries, but in others the development of a management plan is not cost effective.
14.15 Regardless of whether a fishery is managed under a management plan or under administrative arrangements, AFMA is required to pursue certain statutory objectives under section 3 of the FMA which include Ecologically Sustainable Development (ESD) and economic efficiency.
14.16 The problem is that for fisheries managed under administrative arrangements, AFMA does not have the same range of tools to pursue the objectives as it has for fisheries under management plans. In particular, once a permit has been granted under administrative arrangements the area to which the permit applies cannot be varied. This has lead to indirect methods to effect closures, such as condition variations and sometimes reliance on the goodwill of industry. While this is generally effective in circumstances where there are multiple activities permitted by permit, it is not satisfactory where the variation of the condition has the effect of negating any use at all of the permit.
14.17 Following the coming into effect of the United Nations Fish Stocks Agreement, AFMA has responsibility for the fishing activities of Australian-flagged boats on the high seas. The regulation of such activities is generally through a requirement that such boats hold permits granted under section 32 although in time they will be regulated under management plans.
14.18 Without a directions power in respect of permits which are not subject to a management plan, AFMA’s management options on the high seas are limited.
Options
14.19 In order to fulfil its statutory obligations, AFMA seeks the power to make directions that will bind holders of fishing permits and foreign fishing licences in those fisheries for which management plans are not currently in force.
Impact Analysis
14.20 It is very difficult to assess the impacts the proposed direction-making power will have. Some fisheries may be more amenable to management by direction than others. For example, the Directions power is used extensively in the Northern Prawn Fishery in which some 65 directions have been made since 1995 when the NPF Plan was determined.
14.21 The Directional power has been used in the Northern Prawn Fishery for purposes such as:
15. Determining the seasons for the fishery;
16. Giving effect to the closure of sensitive fishing areas, for example, breeding areas;
17. Requiring the use of certain equipment such as Turtle Excluder Devices (TEDs);
18. Prohibiting daylight trawling.
18.12 Because directions impact on fishing activity by specifying where, when and how fishing activity may occur, they affect the economic well-being of individual fishers. For example, a direction that closes an area may directly result, in the short-term, in an economic loss for those excluded. A direction restricting gear may directly restrict catch rates and the amount of fish taken. The overriding consideration by AFMA in deciding on the use of a direction is how well the direction assists AFMA in the pursuit of its statutory objectives especially the ESD objective. The closure and gear directions used as an example may be at the cost of short-term economic loss by fishers but have the benefit of assisting in the long-term sustainability of a fishery.
18.13 Because of the potential impacts on fishers in the management plans in which the direction power is included, directions, except in the case of emergency, cannot be made unless there has been extensive consultation.
18.14 For example the Northern Prawn Fishery Management Plan 1995 provides that:
19. AFMA must give each concession holder notice of the direction;
20. AFMA must not make a direction before it has consulted with the NPF Management Advisory Committee;
21. AFMA must notify each concession holder of the direction at least 7 days before the direction takes effect.
21.12 The making of a direction by AFMA must be gazetted and directions must be tabled in Parliament and are disallowable. The making of a direction is also subject to the Government’s regulation impact statement requirements. Where the making of a direction will have a significant impact on business, a regulation impact statement must be prepared and presented to the AFMA Board before it makes a direction. After the direction is made, the regulation impact statement is tabled in Parliament with the direction. Hence the use of the proposed power will be subject to regulatory impact assessment and Parliamentary disallowance on an ongoing basis.
Conclusion and Recommended Option
21.13 It is recommended that the FMA be amended to give AFMA the power to make directions in respect of fishing permits issued under Section 32 and licenses issued under sections 33, 34 and 40 of the Act.
Implementation and Review
21.14 As mentioned above, the proposed direction making power will mirror that in subsection 17(5A) of the FMA. Directions will only be made, except in the case of emergency, if there has been extensive consultation. All directions made will be tabled in Parliament and be subject to disallowance. Where the making of a direction will have a significant impact on business, a regulation impact statement will be prepared and presented to the AFMA Board before it makes the direction. The regulation impact statement presented to the Board will be tabled in Parliament with the Direction, in accordance with the Government’s regulatory best practice requirements.
22. NOTES ON CLAUSES
Clause 1: Short title
22.12 Clause 1 is a formal provision specifying the short title of the Bill. The Act will be called the Fisheries Legislation Amendment (Compliance and Deterrence Measures and Other Matters) Act 2003.
Clause 2: Commencement
22.13 Sections 1 to 3 and anything not contained in Schedule 1 of the Bill will commence on the day on which the Bill receives the Royal Assent.
22.14 The amendments and repeals as set out in Schedule 1 of the Bill will not take effect until the day set by Proclamation. If any of the provisions do not commence within six months from the day the Act receives the Royal Assent, they will commence the first day after the end of that 6 month period
Clause 3: Schedules
22.15 Clause 3 states that the Fisheries Administration Act 1991 and the Fisheries Management Act 1991 are amended or repealed as set out in the applicable items in Schedule 1 of the Bill. Any other item in a Schedule to this Bill has effect according to its terms.
Schedule 1: Amendment of fisheries legislation

Fisheries Administration Act 1991

Item 1: Subsection 67(1)

22.16 This item extends the power of the Remuneration Tribunal to determine the remuneration of all MAC members. It already has the power to determine remuneration for a MAC Chairperson. Such determinations will be tabled in both houses of the Parliament.
22.17 If the Remuneration Tribunal makes no determination, the MAC members will be paid such remuneration as is prescribed. The amount could, for example, be set out in a regulation, which would be tabled in both houses of Parliament. Under current arrangements, only a Chairperson of a MAC is paid for his duties on a MAC. This item should be read in conjunction with items 2, 3, 4, 5 and 6 of Schedule 1.

Item 2: Subsection 67(1)

22.18 This item is a consequential amendment flowing from the amendment proposed by item 1 of Schedule 1. This item should also be read in conjunction with items 3, 4, 5 and 6 of Schedule 1.

Item 3: Subsection 67(2)

22.19 This item enables the members of a MAC to be paid such allowances as are prescribed. Under current arrangements, only a Chairperson of the MAC is paid allowances. This item should be read in conjunction with items 1, 2, 4, 5 and 6 of Schedule 1.

Item 4: Subsection 67(4)
2.12 This item is a consequential amendment flowing from the amendments proposed by items 1,2 and 3 of Schedule 1. It removes the Remuneration Tribunal’s power to determine the amount of travelling allowance that is payable to a MAC member. This power is now redundant because, as proposed by items 1, 2 and 3 of Schedule 1, MAC members will receive full remuneration and allowances. It ensures the treatment of the members of MACs is consistent with that of the Chairpersons of the MACs. This item should also be read in conjunction with items 5 and 6 of Schedule 1.

Item 5: Subsection 67(5)(a) and (b)
2.10 This item is a consequential amendment flowing from the amendments proposed by items 1, 2 and 3 of Schedule 1. It removes a MAC member from the list of offices that are not public offices as defined by the Remuneration Tribunal Act 1973 (RTA). This ensures the Remuneration Tribunal has jurisdiction over the MAC members. The existing Subsection 67(5)(a) prevents the application of the RTA to MAC members.
Item 6: Saving provision
2.11 This item is a consequential amendment flowing from the amendment under Item 4 of Schedule 1. It ensures that the rate of travelling allowance which the Remuneration Tribunal has determined for MAC members will remain valid and continue to apply until a new rate is prescribed.
Fisheries Management Act 1991
Item 7: At the end of section 22
2.12 This item requires the holder of a statutory fishing right who surrenders the fishing right to return the original concession certificate to AFMA, either when the written notice of the surrender is given to AFMA or as soon as practicable after that time.
2.13 Currently, a holder of a fishing right can surrender the right by giving written notice to AFMA, but is not required to physically return the original document. The proposed amendment should help prevent situations from arising where a fisheries officer in the field inspecting boats could be misled by the production of an original certificate although the fishing right had been surrendered by a written notice. This new requirement is consistent with requirements under the amendments proposed under items 10, 13, 16, and 19.
Item 8: After subsection 32(7)
2.14 This item is a consequential amendment flowing from the amendment proposed in item 20 of Schedule 1. Through a condition of a fishing permit, it requires a holder of the permit to comply with AFMA’s direction, under the proposed item 20 of Schedule 1, that all or part of a fishery is closed for a specific period or periods. This provision only applies to a fishery which does not operate under a plan of management and is consistent with the amendments proposed under items 11, 14, and 17.
Item 9: Subsection 32(8)
2.15 This item is a consequential amendment flowing from the amendment proposed under item 8 of Schedule 1. It prevents AFMA from varying or revoking a condition of a fishing permit that a holder of the permit must comply with any directions from AFMA regarding the closure of part or all of a fishery.
Item 10: After subsection 32(9)
2.16 This item requires the holder of a fishing permit, who surrenders the permit, to return the original permit to AFMA, either when the written notice of the surrender is given to AFMA or as soon as practicable after that time. Currently, a holder of a fishing permit can surrender the right by giving written notice to AFMA but is not required to physically return the original document. This requirement is consistent with the amendments proposed under items 7, 13, 16, and 19.
Item 11: After subsection 33(5)
2.17 This item is a consequential amendment flowing from the amendment proposed in item 20 of Schedule 1. Through a condition of a scientific permit, it requires a holder of the permit to comply with AFMA’s direction, under the proposed item 20 of Schedule 1, that all or part of a fishery is closed for a specific period or periods. This provision only applies to a fishery which does not operate under a plan of management and is consistent with the amendments proposed under items 8, 14, and 17.
Item 12: Paragraph 33(6)(b)
2.18 This item is a consequential amendment flowing from the amendment proposed under item 11 of Schedule 1. It prevents AFMA from varying or revoking a condition of a scientific permit that a holder of the permit must comply with any directions from AFMA regarding the closure of part or all of a fishery.
Item 13: After subsection 33(7)
2.19 This item requires the holder of a scientific permit who surrenders the permit to return the original permit to AFMA, either when the written notice of the surrender is given to AFMA or as soon as practicable after that time. Currently, a holder of a scientific permit can surrender the right by giving written notice to AFMA but is not required to physically return the original document. This requirement is consistent with amendments proposed under items 7, 10, 16, and 19.
Item 14: After subsection 34(6)
2.20 This item is a consequential amendment flowing from the amendment proposed in item 20 of Schedule 1. Through a condition of a foreign fishing licence, it requires a holder of the licence to comply with AFMA’s direction, under the proposed item 20 of Schedule 1, that all or part of a fishery is closed for a specific period or periods. This provision only applies to a fishery which does not operate under a plan of management and is consistent with the amendments proposed under items 8, 11, and 17.
Item 15: Subsection 34(9)
2.21 This item is a consequential amendment flowing from the amendment proposed under item 14 of Schedule 1. It prevents AFMA from varying or revoking a condition of a foreign fishing licence that a holder of the licence must comply with any directions from AFMA regarding the closure of part or all of a fishery.
Item 16: After subsection 34(10)
2.22 This item requires the holder of a foreign fishing licence who surrenders the licence to return the original licence to AFMA, either when the written notice of the surrender is given to AFMA or as soon as practicable after that time. Currently, a holder of a foreign fishing licence can surrender the right by giving written notice to AFMA but is not required to physically return the original document. This requirement is consistent with amendments proposed under items 7, 10, 13, and 19.
Item 17: After subsection 40(4)
2.23 This item is a consequential amendment flowing from the amendment proposed in item 20 of Schedule 1. Through a condition of a foreign master fishing licence, it requires a holder of the licence to comply with AFMA’s direction, under the proposed item 20 of Schedule 1, that all or part of a fishery is closed for a specific period or periods. This provision only applies to a fishery which does not operate under a plan of management and is consistent with the amendments proposed under items 8, 11, and 14.
Item 18: Subsection 40(5)
2.24 This item is a consequential amendment flowing from the amendment proposed under item 17 of Schedule 1. It prevents AFMA from varying or revoking a condition of a foreign master fishing licence that a holder of the licence must comply with any directions from AFMA regarding the closure of part or all of a fishery.
Item 19: After subsection 40(6)
2.25 This item requires the holder of a foreign master fishing licence who surrenders the licence to return the original licence to AFMA, either when the written notice of the surrender is given to AFMA or as soon as practicable after that time. Currently, a holder of a foreign fishing licence can surrender the right by giving written notice to AFMA but is not required to physically return the original document. This requirement is consistent with amendments proposed under items 7, 10, 13, and 16.
Item 20: After section 41
2.26 This item enables AFMA to give, by a notice published in the Gazette, directions regarding the closure or partial closure of a fishery. AFMA may later, by a further written direction, vary or revoke such a direction. In all cases, it must ensure that a copy of the direction is sent to each holder of a permit or licence in respect of the fishery to which the direction relates.
2.27 This provision will only apply in circumstances where:
3. AFMA is satisfied that such action is necessary and is consistent with the pursuit of its legislative objectives;
3.12 there is no plan of management for the fishery (as an equivalent power for those fisheries with a management plan is already provided for under section 175A of the FMA); and
3.13 AFMA has consulted with the relevant MAC and all fishing permits and licence holders.
3.14 Currently under the Act, such closures are achieved mainly through varying permit or licence conditions. While this is generally effective in circumstances where there are multiple activities permitted by permit or licence, it is not satisfactory where the variation of the condition has the effect of negating any use at all of the permit or licence. Such use of permit and licence conditions may be ultra vires.
Item 21: Before Part 5
3.15 Sections 57G, 57H and 57I require AFMA to establish and maintain a separate register of all fishing permits it grants. They set out the responsibilities of AFMA to gather, record and maintain information on the Fishing Permits Register.
3.16 Section 57J requires the Fishing Permits Register to be available for inspection by members of the public, in accordance with regulations and on payment of a small administrative fee.
3.17 Section 57K enables existing provisions relating to evidence, orders for rectification and correction of clerical errors in the Register, and AFMA’s liability for an omission or act done in good faith, to apply equally to the existing Register of Statutory Fishing Rights and the new Fishing Permits Register.
3.18 Section 57L contains a new offence provision. The offence relates to the production or tendering into evidence of a document, which falsely purports to be an instrument, copy of or extract from an instrument, lodged with AFMA under this Part or a copy of or extract from an entry in the Fishing Permits Register. The maximum penalty is imprisonment for two years.
Item 22: Subsection 84(6)
3.19 This item requires an officer, in all circumstances, to make reasonable efforts to identify himself or herself to a person who is being asked by the officer to do or to allow something to occur.
3.20 Currently under the FMA, an officer is required to produce written identification before exercising his or her powers. The only exception to this requirement is where an officer is ordering the master of a boat to stop the boat to allow the officer to board it or to bring the boat to a specified place. This exception will no longer apply because, under item 23 of Schedule 1, the requirement for officers to produce written identification in all circumstances has been relaxed slightly, to allow for circumstances where it is physically not possible to produce written identification. This item should be read in conjunction with item 23 of
Schedule 1.
Item 23: At the end of section 42
3.21 This item provides an exception to the requirement established under section 84(6) of the FMA that requires an officer (other than a member of the Defence Force who is in uniform), to produce written identification, such as an identity card, before exercising his or her powers under the FMA.
3.22 This exception covers those situations where it physically impossible to produce such identification, for example where an officer on a patrol vessel directs the master of a fishing boat over the radio. Nonetheless, the officer is required to produce written identification at the first available opportunity after exercising their powers. This item should be read in conjunction with item 22 of Schedule 1.
Item 24: Subsection 88(1)
3.23 This item specifically allows AFMA to include in any security set for that a foreign boat, reasonable costs that the Commonwealth has incurred in undertaking the pursuit and apprehension of that boat. Under the United Nations Convention on the Law of the Sea (UNCLOS), Australia is obliged to promptly release fishing vessels on the posting of a ‘reasonable’ bond or other financial security. This item increases the level of security that AFMA can seek for a forfeited foreign boat, reducing the possibility that it will abscond while legal proceedings are underway. This item should be read in conjunction with item 27 of Schedule 1.
3.24 The meaning of Subsections 88(1)(c) and (d) is the same as of the words that have been substituted.
Item 25: At the end of subsection 88(2)
3.25 This item ensures that pursuit costs, as mentioned in item 24 of the Schedule 1, has the same meaning as set out in the new Subdivision CA of Division 6.
Item 26: Subsection 100A(2)
3.26 This item increases the maximum penalty for an offence, punishable on conviction, of using a foreign boat for fishing in the Australian Fishing Zone. The penalty will increase from 5,000 penalty units to 7,000 penalty units.
3.27 Offences, where a foreign boat of less than 24 metres was involved, remain punishable on conviction by a maximum penalty of 5,000 penalty units. The item differentiates between offences committed from large industrial fishing boats and small, possibly artisanal, fishing boats. This increased penalty is intended to provide increased deterrence to larger fishing boats that are likely to have a greater negative impact on the sustainability of fisheries resources and the marine environment and be involved in organised criminal activity.
3.28 This item also defines how the length of a boat involved in an offence would be determined for the purposes of the FMA.
Item 27: After Subdivision C of Division 6 of Part 6
3.29 Subdivision CA sets out the process for calculating and recovering the reasonable costs incurred by the Commonwealth for the pursuit, apprehension and seizure of a foreign boat. It establishes that these costs are incurred as a debt to the Commonwealth, and may be payable by the boat owner as an administrative penalty. It also sets out how the boat owner will be notified of the debt, the mechanism by which the debt is contestable by the foreign boat’s owner, and when the debt will become payable.
3.30 Subsection 106J outlines what the Commonwealth may include in its calculation of the reasonable costs it has incurred in the pursuit and apprehension of a foreign boat. These costs may be included in a security payment as described in the existing subsection 88(1). This is to ensure it is clear what can be justifiably included in the calculation of the costs reasonably incurred by or on behalf of the Commonwealth during a pursuit and apprehension of a foreign boat. It also requires that the costs be reasonably incurred, which is consistent with the requirements of UNCLOS. Subsection 106J defines the terms that are used to establish the costs incurred by the Commonwealth in the pursuit, apprehension and seizure of a foreign boat, and the meaning of the Federal Court, for the purposes of the FMA.
3.31 Subsection 106K gives AFMA the authority to develop regulations that further define how the pursuit costs incurred by the Commonwealth may be calculated.
3.32 Subsection 106L provides a means of recovering costs that may be incurred by the Commonwealth when a foreign boat that is suspected of illegally fishing flees from a Government patrol vessel and is apprehended following a pursuit. It establishes that the failure of the master of the boat to comply with specific orders from a fisheries officer will, if the Commonwealth pursues and apprehends the boat, be the trigger point for the commencement of the debt being calculated. It also sets out the point at which the pursuit costs will stop accruing. Subsection 106L establishes that the pursuit costs are accrued as a debt to the Commonwealth by the owner (or owners) of the foreign boat who are liable to pay that debt, by way of a penalty, if the Commonwealth seeks its recovery.
3.33 Subsection 106M sets out the process by which AFMA notifies the owner/s of the foreign boat, through the master or by fixing the notice to a prominent part of the boat, that a debt has been incurred to the Commonwealth. This process is intended to ensure that the owner is aware of the debt that has incurred. Subsections106M and 106N establish that two notices must be given by AFMA regarding the debt payable to the Commonwealth. The first notice is to advise that a debt has been incurred. The second notice, which must be provided within 10 days of giving the preliminary notice, sets out the full particulars of the debt and its means of calculation, which has been determined in accordance with subsections 106J, 106K and 106L.
3.34 The preliminary notice issued under subsection 106M provides the owner with the option of contesting the debt owed to the Commonwealth which has been incurred by their boat. The notice will state that the debt is required to be paid by the owner of the boat unless they inform the Managing Director of AFMA within 30 days of the second notice being provided that the owner will contest the debt in the Federal Court.
3.35 Subsection 106P provides that if, within 30 days of a notice being given, the owner does not notify the Managing Director of AFMA in writing that they intend to contest the debt, the debt becomes due and payable to the Commonwealth.
3.36 If the owner of a foreign boat chooses to contest the debt, subsection 106Q limits the time in which legal proceedings can be instituted to two months, consistent with the current subsection 106F. Subsection 106Q also establishes the grounds on which the owner can contest the debt. If the legal proceedings are not instituted before the end of the two month period, the debt becomes due and payable to the Commonwealth.
3.37 Subsection 106Q clarifies that if the boat is deemed to have not been forfeited to the Commonwealth under the existing subsection 106A or 106F of the FMA, then the debt for the pursuit costs will not be payable. This recognises that if a boat was not seized, or its forfeiture was successfully challenged, the debt to the Commonwealth is not justified.
3.38 Subsection 106R gives the Federal Court the jurisdiction to hear and determine hearing any proceedings to contest the debt for pursuit costs. Subsection 106R ensures that the owner has the opportunity to contest the debt if: the owner can satisfy that they were not provided with a reasonable opportunity within the timeframes established in subsections 106P and 106Q; and the Federal Court is satisfied that it is warranted in the circumstances of the case. It is intended to ensure the owner has some recourse in circumstances where the Commonwealth has not made reasonable attempts to ensure the owner was given notice of the debt. The same timeframes apply for instituting the proceedings and the crystallisation of the debt applies as set out in subsection 106Q.
3.39 Subsection 106S establishes that the onus of proof will lie with the Commonwealth in any proceedings launched by a boat owner who contests their debt that is payable to the Commonwealth. Under this subsection, the Commonwealth must establish that the level of debt is reasonable and that it was justifiably incurred.
Item 28:
3.40 This item gives AFMA the authority to waive the levy payment, and any penalty for non-payment of the levy, if a fishing permit is surrendered by the holder of the permit. This will only apply in circumstances where the permit or holder has not fished at all during the period for which the permit is in force. It will not apply if any fishing activities have been undertaken under the permit.

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