Fisheries Management Amendment Regulations 2005 (No. 3) (Cth)

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Fisheries Management Amendment Regulations 2005 (No. 3)1

Select Legislative Instrument 2005 No. 294

I, PHILIP MICHAEL JEFFERY, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Fisheries Management Act 1991.

Dated 15 December 2005

P. M. JEFFERY

Governor-General

By His Excellency’s Command

IAN MACDONALD

Minister for Fisheries, Forestry and Conservation

1Name of Regulations

These Regulations are the Fisheries Management Amendment Regulations 2005 (No. 3).

2Commencement

These Regulations commence on the day of registration.

3Amendment of Fisheries Management Regulations 1992

Schedule 1 amends the Fisheries Management Regulations 1992.

Schedule 1Amendment

(regulation 3)

[1]After Part 5

insert

Part 5ADetention of suspected illegal foreign fishers etc

Division 1Training for officers

19ATraining for officers and detention officers

For subclause 6 (1) of Schedule 1A to the Act, the minimum training is the course of training provided by AFMA known as Authorised Officer Training, which provides training on the following matters:

  1. (a)

    conducting searches;

  2. (b)

    maintaining the health, safety and welfare of detainees;

  3. (c)

    controlling persons by the use of empty-hand techniques;

  4. (d)

    the use of authorised officers’ powers under the Fisheries Management Act 1991 and the Torres Strait Fisheries Act 1984.

Division 2Identifying detainees

19BPersonal identifiers

For paragraph 26 (1) (g) of Schedule 1A to the Act, the personal identifiers are as follows:

  1. (a)

    a sample of a person’s handwriting;

  2. (b)

    a photograph of a tattoo, scar or other identifying mark of a person, if the obtaining of the photograph does not involve:

    1. (i)

      the removal of any of the person’s clothing; or

    2. (ii)

      the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914.

Note Subsection 23WA (1) of the Crimes Act 1914 provides that intimate forensic procedure means any of the following forensic procedures:

(a) an external examination of the genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts;

(b) the taking of a sample of blood;

(c) the taking of a sample of saliva, or a sample by buccal swab;

(d) the taking of a sample of pubic hair;

(e) the taking of a sample by swab or washing from the external genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts;

(f) the taking of a sample by vacuum suction, by scraping or by lifting by tape from the external genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts;

(g) the taking of a dental impression;

(h) the taking of a photograph or video recording of, or an impression or cast of a wound from, the genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts.

19CPersonal identifiers detainees must provide

For paragraph 28 (2) (e) of Schedule 1A to the Act, the types of personal identifier are as follows:

  1. (a)

    an audio or a video recording of the detainee (other than a video recording under clause 37 of Schedule 1A to the Act);

  2. (b)

    an iris scan of the detainee’s eyes;

  3. (c)

    a sample of the detainee’s handwriting;

  4. (d)

    a photograph of a tattoo, scar or other identifying mark of the detainee, if the obtaining of the photograph does not involve:

    1. (i)

      the removal of any of the detainee’s clothing; or

    2. (ii)

      the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914.

Note See the note after regulation 19B for the meaning of intimate forensic procedure for section 23WA of the Crimes Act 1914.

19DPersonal identifiers officers must require non‑citizens to provide by way of identification tests

For paragraph 29 (1) (a) of Schedule 1A to the Act, the types of personal identifier are as follows:

  1. (a)

    fingerprints or handprints of the non-citizen (including those taken using paper and ink or digital livescanning technologies);

  2. (b)

    a measurement of the non-citizen’s height and weight;

  3. (c)

    a photograph or other image of the non-citizen’s face and shoulders;

(d) an audio or a video recording of the non-citizen (other than a video recording under clause 37 of Schedule 1A to the Act);

  1. (e)

    an iris scan of the non-citizen’s eyes;

  2. (f)

    the non-citizen’s signature;

  3. (g)

    a sample of the non-citizen’s handwriting;

  4. (h)

    a photograph of a tattoo, scar or other identifying mark of the non-citizen, if the obtaining of the photograph does not involve:

    1. (i)

      the removal of any of the non-citizen’s clothing; or

    2. (ii)

      the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914.

Note See the note after regulation 19B for the meaning of intimate forensic procedure for section 23WA of the Crimes Act 1914.

19EInformation to be provided before carrying out identification tests

  1. (1)

    For paragraph 30 (1) (b) of Schedule 1A of the Act, the matters about which the authorised officer must inform the non-citizen before carrying out an identification test are:

    1. (a)

      the reason why a personal identifier is required to be provided; and

    2. (b)

      how a personal identifier may be collected; and

    3. (c)

      how any personal identifier that is collected may be used; and

    4. (d)

      if the non-citizen is a minor or an incapable person — how a personal identifier is to be obtained from a minor or incapable person.

Note See Division 3 of Part 5 of Schedule 1A to the Act in relation to the identification of minors and incapable persons.

  1. (2)

    Also, the authorised officer must inform the non-citizen:

    1. (a)

      that a personal identifier may be produced in evidence in a court or tribunal in relation to the non-citizen who provided the personal identifier; and

    2. (b)

      that the Privacy Act 1988 applies to personal information, including personal identifiers, and that the non-citizen has a right to make a complaint to the Privacy Commissioner about the handling of the non-citizen’s personal information; and

    3. (c)

      that:

      1. (i)

        the Freedom of Information Act 1982 gives a person access to certain information and documents in the possession of the Government of the Commonwealth and of its agencies; and

      2. (ii)

        the non-citizen has a right, under that Act, to seek:

        1. (A)

          access to that information or those documents; and

        2. (B)

          amendment of records containing personal information that is incomplete, incorrect, out of date or misleading.

  2. (3)

    For subclause 30 (3) of Schedule 1A of the Act, if a form is to be given to a non-citizen setting out any information mentioned in subregulation (1) or (2), it must be given to the non-citizen at a time that gives the non-citizen enough time to read and understand the form before the identification test is conducted.

19FAuthorising access to video recordings — limitations

For subclause 41 (3) of Schedule 1A to the Act, the types of personal identifier are as follows:

  1. (a)

    fingerprints or handprints of a non-citizen (including those taken using paper and ink or digital livescanning technologies);

  2. (b)

    a measurement of a non-citizen’s height and weight;

  3. (c)

    a photograph or other image of a non-citizen’s face and shoulders;

  4. (d)

    an audio or a video recording of a non-citizen (other than a video recording under clause 37 of Schedule 1A to the Act);

  5. (e)

    an iris scan of a non-citizen’s eyes;

  6. (f)

    a non-citizen’s signature;

  7. (g)

    a sample of a non-citizen’s handwriting;

  8. (h)

    a photograph of a tattoo, scar or other identifying mark of a non-citizen.

19GProviding video recordings — permitted provision

  1. (1)

    This regulation applies for paragraph 42 (2) (f) of Schedule 1A to the Act.

  2. (2)

    The provision of a video recording to the Human Rights and Equal Opportunity Commission is a permitted provision of the recording if the provision is for the purpose of the Commission inquiring into the operation of provisions of the Act relating to carrying out an identification test.

19HProviding video recordings — limitations

For paragraph 42 (3) (a) of Schedule 1A to the Act, the types of personal identifier are as follows:

  1. (a)

    fingerprints or handprints of a non-citizen (including those taken using paper and ink or digital livescanning technologies);

  2. (b)

    a measurement of a non-citizen’s height and weight;

  3. (c)

    a photograph or other image of a non-citizen’s face and shoulders;

  4. (d)

    an audio or a video recording of a non-citizen (other than a video recording under clause 37 of Schedule 1A to the Act);

  5. (e)

    an iris scan of a non-citizen’s eyes;

  6. (f)

    a non-citizen’s signature;

  7. (g)

    a sample of a non-citizen’s handwriting;

  8. (h)

    a photograph of a tattoo, scar or other identifying mark of a non-citizen.

Division 3Disclosure of identifying information

19IAuthorising access to identifying information

For subclause 52 (3) of Schedule 1A to the Act, the types of personal identifier are as follows:

  1. (a)

    fingerprints or handprints of a non-citizen (including those taken using paper and ink or digital livescanning technologies);

  2. (b)

    a measurement of a non-citizen’s height and weight;

  3. (c)

    a photograph or other image of a non-citizen’s face and shoulders;

  4. (d)

    an audio or a video recording of a non-citizen (other than a video recording under clause 37 of Schedule 1A to the Act);

  5. (e)

    an iris scan of a non-citizen’s eyes;

  6. (f)

    a non-citizen’s signature;

  7. (g)

    a sample of a non-citizen’s handwriting;

  8. (h)

    a photograph of a tattoo, scar or other identifying mark of a non-citizen.

19JAuthorising disclosure of identifying information

For subclause 54 (1) of Schedule 1A to the Act, AFMA may authorise the following Agencies to disclose identifying information under that subclause:

  1. (a)

    the Department of Foreign Affairs and Trade;

  2. (b)

    the Australian Customs Service.

19KDisclosure of identifying information to Australian bodies

For paragraph 54 (1) (d) of Schedule 1A to the Act, AFMA may authorise the disclosure of identifying information under subclause 54 (1) of that Schedule to any of the bodies mentioned in the following table:

Item

Name of body

1

Attorney-General’s Department

2

Australian Crime Commission

3

Australian Customs Service

4

Australian Federal Police

5

Australian Quarantine and Inspection Service

6

Australian Securities and Investments Commission

7

Australian Security Intelligence Organisation

8

Australian Taxation Office

9

Australian Transaction Reports and Analysis Centre (AUSTRAC)

10

CrimTrac

11

Department of Agriculture, Fisheries and Forestry

12

Department of Defence

13

Department of Foreign Affairs and Trade

14

Department of Health

15

Department of Immigration, Multicultural and Indigenous Affairs

16

New South Wales Department of Primary Industries

17

New South Wales Office of Director of Public Prosecutions

18

New South Wales Police Service

19

Office of Director of Public Prosecutions, Victoria

20

Victorian Department of Justice

21

Victorian Department of Primary Industries

22

Victorian Police

23

Queensland Department of Primary Industries and Fisheries

24

Queensland Office of Director of Public Prosecutions

25

Queensland Police Service

26

Office of Director of Public Prosecutions for Western Australia

27

Western Australian Department of Fisheries

28

Western Australian Department of Justice

29

Western Australian Police Service

30

South Australian Department of Primary Industries and Resources

31

South Australian Office of Director of Public Prosecutions

32

South Australian Police

33

Tasmanian Department of Primary Industries

34

Tasmanian Office of the Director of Public Prosecutions

35

Tasmanian Police

36

Northern Territory Department of Business, Industry and Resource Development

37

Northern Territory Office of Director of Public Prosecutions

38

Northern Territory Police

19LDisclosure of identifying information to international organisations

For paragraph 54 (1) (e) of Schedule 1A to the Act, AFMA may authorise the disclosure of identifying information under clause 54 of that Schedule to any of the following organisations:

  1. (a)

    Interpol;

  2. (b)

    the United Nations;

  3. (c)

    any of the Intergovernmental Organisations known as Regional Fisheries Bodies mentioned in the following table:

Item

Name of Intergovernmental Organisation

1

Advisory Committee on Fishery Research (ACFR)

2

Asia-Pacific Fishery Commission (APFIC)

3

Atlantic Africa Fisheries Conference (AAFC)

4

Bay of Bengal Programme (BOBP-IGO)

5

Comisión de Pesca Continental Para America Latina (COPESCAL)

6

Comisión Interamericana del Atún Tropical (CIAT)

7

Comisión Permanente del Pacifico Sur (CPPS)

8

Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR)

9

Commission for the Conservation of Southern Bluefin Tuna (CCSBT)

10

Committee for Inland Fisheries of Africa (CIFA)

11

Coordinating Working Party on Fisheries Statistics (CWP)

12

Council of the Eastern Pacific Tuna Fishing Agreement (CEPTFA)

13

European Inland Fisheries Advisory Commission (EIFAC)

14

Fishery Committee for the Eastern Central Atlantic (CECAF)

15

Forum Fisheries Agency (FFA)

16

General Fisheries Commission for the Mediterranean (GFCM)

17

Indian Ocean Tuna Commission (IOTC)

18

Inter-American Tropical Tuna Commission (IATTC)

19

International Baltic Sea Fishery Commission (IBSFC)

20

International Commission for the Conservation of Atlantic Tunas (ICCAT)

21

International Council for Exploration of the Sea (ICES)

22

International Pacific Halibut Commission (IPHC)

23

International Whaling Commission (IWC)

24

La Commission Sous-Régionale des Pêches (CSRP)

25

Lake Victoria Fisheries Organization (LVFO)

26

Latin American Fisheries Development Organization (OLDEPESCA)

27

Marine Mammal Commission (MMC)

28

Mekong River Commission (MRC)

29

Network of the Aquaculture Centres in Asia-Pacific (NACA)

30

North Atlantic Fisheries Organisation (NAFO)

31

North Atlantic Salmon Conservation Organization (NASCO)

32

North East Atlantic Fisheries Commission (NEAFC)

33

North Pacific Anadromous Fish Commission (NPAFC)

34

North Pacific Marine Science Organisation (PICES)

35

Northwest Atlantic Fisheries Organization (NAFO)

36

Pacific Salmon Commission (PSC)

37

Regional Commission for Fisheries (RECOFI)

38

Regional Fisheries Advisory Committee for the Southwest Atlantic (CARPAS)

39

Regional Fisheries Committee for the Gulf of Guinea (COREP)

40

Secretariat of the Pacific Community (SPC)

41

Southeast Asian Fisheries Development Center (SEAFDEC)

42

South East Atlantic Fisheries Organisation (SEAFO)

43

Southwest Indian Ocean Fisheries Commission (SWIOFC)

44

Western and Central Pacific Fisheries Commission (WCPFC)

45

Western Central Atlantic Fishery Commission (WECAFC)

46

Western Indian Ocean Tuna Organization (WIOTO)

Division 4Disclosures relating to illegal fishing activities

19MAuthorising disclosure of information relating to illegal fishing activities

For subsection 108B (1) of the Act, the Minister may authorise the following Agencies to disclose information under that subsection:

  1. (a)

    the Department of Foreign Affairs and Trade;

  2. (b)

    the Australian Customs Service.

Note

1. All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See

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