Fisheries Management Amendment Regulations 2004 (No. 2) 2004 No. 233
EXPLANATORY STATEMENT
STATUTORY RULES 2004 No. 233
Issued by the authority of the Minister for Fisheries, Forestry and Conservation
Fisheries Management Act 1991
Fisheries Management Amendment Regulations 2004 (No. 2)
Subsection 168(1) of the Fisheries Management Act 1991 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed, in carrying out or giving effect to the Act.
With the commencement of the Fisheries Legislation Amendment (Compliance and Deterrence Measures and Other Matters) Act 2004 (the Amendment Act), section 106K of the Act will provide that the Fisheries Management Regulations 1992 (the Principal Regulations) may set out the principles to be applied to the determination of costs incurred by or on behalf of the Commonwealth, that are directly attributable to the conduct of pursuit activities in relation to foreign boats. Pursuit costs would be recovered from the owner of a foreign boat. The recovery of these pursuit costs is being introduced as a strong disincentive, as the costs of pursuit are escalating, due to the higher frequency of foreign boats illegally fishing in the Australian Fishing Zone.
The purpose of the proposed Regulations is to specify the principles for determining pursuit costs that are recoverable by the Commonwealth in relation to foreign boats as a deterrence measure. The proposed Regulations would establish how to determine when a pursuit begins and ends and the categories of costs that may be recovered. Examples are the cost of personnel involved in the pursuit, overtime, accommodation, relocation or travel costs, costs in relation to the use of boats or aircraft, including the costs of repair for any damage. Further examples are the costs of the use of services or equipment associated with surveillance, the costs of maintaining communication between agencies, as well as the costs of any ancillary services such as medical or legal.
Section 106K of the Act will be inserted as part of Schedule 1 to the Amendment Act, which is to commence by Proclamation in the near future. Details of the Regulations, which commence on the commencement of Schedule 1 to the Amendment Act, are set out below:
Regulation 1 provides for the Regulations to be cited as the Fisheries Management Amendment Regulations 2004 (No. 2).
Regulation 2 provides for the Regulations to commence on the commencement of Schedule 1 to the Amendment Act.
Regulation 3 provides for Schedule 1 to amend the principal Regulations.
Schedule 1 Item 1 inserts at the beginning of Part 4, Division 1 Recovery of pursuit costs and sets out in Regulation 10 all the principles for the determination of pursuit costs. It states when the pursuit is taken to have begun and ended and lists the categories of costs that may be recovered as a deterrence measure.
Overview
The Fisheries Management Amendment Regulations 2004 (No. 2) were introduced to address the escalating costs associated with the pursuit of foreign vessels illegally fishing within the Australian Fishing Zone. Enacted under the authority of the Fisheries Management Act 1991, these regulations were established in response to the need for a strong deterrence measure against illegal fishing activities by foreign boats. The Fisheries Legislation Amendment (Compliance and Deterrence Measures and Other Matters) Act 2004 prompted the creation of these regulations to specify the principles for determining the pursuit costs that are recoverable by the Commonwealth from the owners of foreign boats. The policy objective is to recover costs directly attributable to the conduct of pursuit activities, thereby discouraging illegal fishing by imposing financial liabilities on offenders.
Scope and Application
The Fisheries Management Amendment Regulations 2004 (No. 2) apply to the conduct and cost recovery mechanisms associated with the pursuit of foreign vessels illegally fishing in the Australian Fishing Zone. These Regulations, which are made under the Fisheries Management Act 1991, serve to specify the principles for determining pursuit costs that can be recovered by the Commonwealth from the owners of foreign boats as a deterrence measure. This includes the delineation of when a pursuit is considered to have started and ended, as well as the categories of costs that are eligible for recovery, such as personnel costs, overtime, accommodation, travel, and the use of boats, aircraft, equipment, and services. The scope of the Regulations extends to the Commonwealth and foreign entities involved in illegal fishing activities within the Australian Fishing Zone. The Regulations will commence on the commencement of Schedule 1 to the Fisheries Legislation Amendment (Compliance and Deterrence Measures and Other Matters) Act 2004, which is set to begin by Proclamation. These Regulations do not explicitly state any exclusions, exemptions, or thresholds but focus on establishing a clear framework for cost recovery to deter illegal fishing activities.
Key Provisions
The Fisheries Management Amendment Regulations 2004 (No. 2) (Regulations) establish the principles for determining pursuit costs that are recoverable by the Commonwealth from owners of foreign boats in relation to illegal fishing activities in the Australian Fishing Zone (Regulation 10). This amendment is in response to the increasing frequency of illegal fishing and the escalating costs associated with pursuing these activities. Regulation 10 specifies when a pursuit is deemed to have commenced and concluded, and it enumerates the categories of costs that can be recovered, which include personnel costs, overtime, accommodation, travel expenses, vessel and aircraft usage costs, surveillance equipment costs, communication expenses between agencies, and ancillary services such as medical and legal services.
The Regulations impose specific obligations on entities involved in the pursuit of foreign boats engaged in illegal fishing activities. For instance, they require detailed records of the pursuit to be kept, ensuring transparency and accountability in the recovery of pursuit costs (Regulation 10). Additionally, the Regulations mandate that the costs incurred during the pursuit be itemised and justified, thereby ensuring that only legitimate and necessary expenses are claimed (Regulation 10). The entity responsible for pursuing the foreign boat must also provide evidence supporting the pursuit's commencement and conclusion dates and the necessity of each incurred cost (Regulation 10).
Failure to comply with these Regulations can result in significant consequences. The Fisheries Management Act 1991 provides for various penalties for non-compliance. For example, if a foreign boat owner fails to pay the recoverable pursuit costs as determined under the Regulations, they may face civil penalties, including fines up to a maximum of $1,100,000 or three times the value of the fish caught, whichever is greater (Section 175). Furthermore, persistent non-compliance may result in criminal charges, leading to imprisonment for up to five years (Section 175). These stringent measures are intended to deter illegal fishing activities and ensure that those who engage in such activities bear the full financial burden of their actions.