EXPLANATORY STATEMENT
Issued by the authority of the Minister for Fisheries, Forestry and Conservation
Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Act 2005
Subsection 2(1) of the Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Act 2005 (the Act) provides that Part 2 and Division 1 of Part 3 of Schedule 1 to the Act commence on a day to be fixed by Proclamation. Subsection 2(1) also provides that Part 2 of Schedule 2 commences at the same time as Part 2 of Schedule 1. However, if any of the provisions of Schedule 1 do not commence within the period of 6 months beginning on the day on which the Act receives the Royal Assent, they commence on the first day after the end of that period. The Act received Royal Assent on 23 August 2005.
The Proclamation fixed 30 November 2005 as the day on which Part 2 and Division 1 of Part 3 of Schedule 1 (and, as a consequence, Part 2 of Schedule 2) to the Act commence. All other provisions of the Act commenced on 23 August 2005.
The Act ensures consistency of detention arrangements for illegal foreign fishers under fisheries and immigration legislation. Schedule 1 to the Act provides for a revised detention regime for illegal foreign fishers apprehended in Australian waters that will allow the seamless transition from fisheries detention to immigration detention and ensure that detainees are appropriately cared for during the transfer period. Detainees held under fisheries detention and immigration detention may be accommodated in a single detention facility, so it is important that officers can be authorised under both sets of legislation to undertake detention functions and that the same strict procedural rules apply. Schedule 2 to the Act enables Australia to effectively comply with its obligations as part of the Torres Strait Treaty between Australia and Papua New Guinea. Schedule 2 extends the use of the enforcement visa regime in the Migration Act 1958 to illegal foreign fishers apprehended in the Torres Strait Protected Zone so that a consistent regime applies as set out in the Fisheries Management Act 1991.
The delayed commencement allowed time for subordinate legislation and operational requirements to be put in place by the Australian Fisheries Management Authority and the Department of Immigration and Multicultural and Indigenous Affairs regarding the appointment of detention officers, authorisation of officers and implementation of the enforcement visa regime in the Torres Strait.
Overview
The Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Act 2005 was enacted by the Parliament of Australia to address the problem of illegal foreign fishing activities within Australian waters, particularly focusing on the seamless transition of illegal foreign fishers from fisheries detention to immigration detention. This legislation was introduced to ensure that illegal foreign fishers are appropriately detained and cared for during the transfer period and to align the treatment of these individuals under both fisheries and immigration laws. The Act received Royal Assent on 23 August 2005, and specific provisions were fixed to commence on 30 November 2005, allowing time for necessary operational adjustments by the Australian Fisheries Management Authority and the Department of Immigration and Multicultural and Indigenous Affairs. The policy objective of the Act is to provide a consistent detention regime and to comply with Australia's obligations under the Torres Strait Treaty between Australia and Papua New Guinea.
Scope and Application
The Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Act 2005 applies to illegal foreign fishers apprehended in Australian waters, particularly in the Torres Strait Protected Zone. The Act ensures consistency in the detention arrangements for such individuals under both fisheries and immigration legislation. It is designed to facilitate the seamless transition from fisheries detention to immigration detention and to ensure that detainees are appropriately cared for during the transfer period. The geographic reach of the Act extends to Australian waters and the Torres Strait Protected Zone, which is subject to the Torres Strait Treaty between Australia and Papua New Guinea. The Act also mandates that detainees may be accommodated in a single detention facility, requiring officers to be authorised under both fisheries and immigration legislation to undertake detention functions, with the same strict procedural rules applying. The delayed commencement of certain provisions allowed for the necessary subordinate legislation and operational requirements to be put in place by the Australian Fisheries Management Authority and the Department of Immigration and Multicultural and Indigenous Affairs.
Key Provisions
The Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Act 2005 (the Act) primarily seeks to ensure a consistent detention regime for illegal foreign fishers apprehended in Australian waters. Section 2(1) of the Act indicates that certain parts of the legislation, specifically Part 2 and Division 1 of Part 3 of Schedule 1, as well as Part 2 of Schedule 2, were set to commence on 30 November 2005, as determined by a Proclamation issued by the relevant authority. This delayed commencement allowed for the necessary subordinate legislation and operational requirements to be established by the Australian Fisheries Management Authority and the Department of Immigration and Multicultural and Indigenous Affairs, ensuring a smooth transition and effective implementation.
The Act introduces a revised detention regime (Schedule 1) that allows for the seamless transition from fisheries detention to immigration detention for illegal foreign fishers. This ensures that detainees are appropriately cared for during the transfer period and can be accommodated in a single detention facility. The strict procedural rules must apply uniformly across both fisheries and immigration detention to maintain consistency and proper oversight. Furthermore, officers involved in the detention process must be authorised under both sets of legislation to perform their duties effectively.
Under the Act, several obligations are imposed on the parties involved. Fisheries and immigration authorities must coordinate closely to ensure detainees are treated consistently and humanely during their detention. This includes ensuring that detention officers are properly authorised and trained to handle both fisheries and immigration detention responsibilities. The Act also mandates the implementation of an enforcement visa regime (Schedule 2) in the Torres Strait Protected Zone to align with the obligations under the Torres Strait Treaty between Australia and Papua New Guinea. This ensures that a consistent regime is applied, as outlined in the Fisheries Management Act 1991.
Failure to comply with the provisions of the Act can lead to significant legal consequences. While specific offences and penalties are not detailed in the Explanatory Statement, breaches of the detention regime or the enforcement visa regime could potentially result in civil or criminal penalties. These penalties might include fines, imprisonment, or other sanctions as prescribed by relevant legislation. The exact penalties would depend on the nature and severity of the breach, as well as the specific provisions of the Fisheries Management Act 1991 and the Migration Act 1958. The overarching aim of the Act is to deter illegal foreign fishing and ensure that those apprehended are subject to a fair and consistent detention regime.