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1
Fisheries Amendment
FISHERIES AMENDMENT BILL 2000
EXPLANATORY NOTES
GENERAL OUTLINE
Short Title
The short title of the Bill is the Fisheries Amendment Bill 2000.
Objectives of the Legislation
The objectives of the legislation are to amend:
� sections 36, 67 and 68 of the Fisheries Act 1994 to facilitate
proposed amendments to the Fisheries (East Coast Trawl)
Management Plan 1999;
� certain provisions of the Fisheries Act 1994 that have been
identified as necessary or desirable by the Queensland Fisheries
Service; and
� the Fisheries (Spanner Crab) Management Plan 1999 to remedy
an unintended anomaly in the allocation of Individual Transferable
Quota units.
Reasons for the Bill
1. To facilitate proposed amendments to the Fisheries (East Coast
Trawl) Management Plan 1999.
The government proposes significant amendments to the Fisheries (East
Coast Trawl) Management Plan 1999 (ECTMP) that will implement the
key recommendations of a stakeholders' working group report on the future
management of Queensland's trawl fishery, particularly concerning the
critical issues of economic viability and ecological sustainability.
A fundamental component of the proposed amendments is the
introduction of a new system of authorities (effort units) that represent the
entitlement of the holder to expend effort in the fishery. A maximum
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Fisheries Amendment
number of fishing days will be available for allocation across the fishery. It
is possible that the number of fishing days to which entitlement is
demonstrated under the allocation processes could exceed the maximum
available. In this event, the proposed amendments to the ECTMP will
provide for the reduction on a rateable basis of the number of effort units
that have been, or would otherwise have been allocated.
The Fisheries Act 1994 currently invests the chief executive of the
Department of Primary Industries with discretion to cancel or suspend an
authority in certain circumstances and by following a certain process. This
may be viewed as potentially inconsistent with the proposed amendments to
the ECTMP, which will provide an alternative basis for the cancellation of
effort units by way of a rateable reduction across the fishery by operation of
law rather than by administrative decision.
To remove the potential for inconsistency, enable the proposed
amendments to the ECTMP to operate as intended and facilitate any future
structural adjustments, the Fisheries Act 1994 is to be amended by:
(i) extending the matters that may be dealt with by a management
plan to include the management of a fishery by a system of
authorities, including their issue, conditions, amendment, renewal,
transfer, cancellation and suspension; and
(ii) providing that the provisions relating to the suspension or
cancellation of authorities upon the decision of the chief executive
do not affect the operation of a provision in a regulation or
management plan that provides for the suspension or cancellation
of an authority.
2. To facilitate the amendment of the Fisheries (Spanner Crab)
Management Plan 1999.
It is required to facilitate the retrospective amendment of the Fisheries
(Spanner Crab) Management Plan 1999 (SCMP) to:
� allow the adjustment under section 94 of the SCMP to apply to
the allocation of Individual Transferable Quota (ITQ) units where
further licence transfers have occurred; and
� ensure that the allocation of ITQ units occurs in accordance with
the intended government policy position.
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Fisheries Amendment
The amendments will effectively allow for an adjustment of reported
spanner crab catch history where further licence transfers of eligible licences
have occurred. Section 94 of the SCMP provides for an adjustment in
certain circumstances and adjusts the reported catch under the licence.
Reported catch for a licence is a component in the formula which is critical
in allocation of ITQ units.
The adjustment is required to apply to two licences where a change in
ownership had been effected, but where special circumstances and
conditions existed such that it is considered that the adjustment under
section 94 should apply.
Under the current provisions of section 94, the two licences have been
unable to be adjusted due to the constraints of the current provisions of
section 94 of the SCMP. Whilst licence transfers had been executed, these
licences are considered to have been held in substantially the same name.
The QFMA issued ITQ units under the SCMP in May 1999. Because of
a perceived ambiguity surrounding the application of section 94 to the two
relevant licences, it was decided not to apply the adjustment to these licences
until further clarification was received. However, the QFMA inadvertently
factored in the adjustment for a component of the allocation formula in
section 91 of the SCMP.
To avoid disadvantaging the two fishers in question and to give effect to
the intended operation of the SCMP, it is proposed to amend the SCMP so
that the two affected licences are capable of adjustment. The amendments,
while of necessity being retrospective, will not detract from the rights
conferred by the two licences, and indeed will ensure that the intended
outcome of the SCMP is achieved without detriment to the parties in
question.
This retrospective amendment to the SCMP ensures that the QFMA
allocation of ITQ units is valid. The amendment will ensure that intended
policy required by the SCMP is achieved and that the technical inadvertence
realised by the QFMA's application of the formula is overcome.
3. To make amendments which have been identified as necessary or
desirable.
A number of proposed amendments have been identified as necessary or
desirable for the optimum operation of the Fisheries Act 1994. These
include:--
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Fisheries Amendment
(i) extending the range of matters which may be the subject of a
management plan, so that they include a fishery, a fish habitat or
declared fish habitat area, a fish way, fisheries resources and
aquaculture;
(ii) making provision to allow the lease of an authority under a
regulation or management plan;
(iii) clarifying the obligations of a person who takes or possesses
noxious or non-indigenous fisheries resources;
(iv) remedying the perceived deficiencies in section 124 of the
Fisheries Act 1994, which empowers the chief executive to
rehabilitate or restore land, waters, marine plants or a declared fish
habitat area which has been removed, damaged or destroyed; and
(v) stipulating expressly that an individual may not appeal from a
decision of the Fisheries Tribunal to the Fisheries Tribunal.
Estimated costs for government implementation
There is no immediate or foreseeable increase in the cost to government
in implementing the proposed amendments.
Consistency with fundamental legislative principles
Clause 19
Clause 19 inserts a new section 223A into the SCMP. This section will
provide that section 94 of the SCMP will be taken to have always applied to
the two eligible licences. Further, this provision will expire the day after it
commences.
The amendment to the SCMP effectively provides for the correction of
an unintended anomaly in the allocation of ITQ units and is an infringement
of the fundamental legislative principle that legislation should not adversely
affect the rights and liberties or impose obligations on individuals
retrospectively.
However it is considered that the imposition of the retrospective
amendment in this instance is warranted.
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Fisheries Amendment
The amendment ensures that two licences were eligible for an adjustment
under section 94 of the SCMP. This policy position was inadvertently
factored into the allocation of ITQ units. As a result, each licence in the
fishery received a slight reduction in the allocation of ITQ units that they
would have received but for the technical inadvertence of the QFMA in its
application of the statutory formula under the SCMP.
The difference that has been factored in by the technical inadvertence of
the QFMA is such that the correction, as is envisaged by the amendment,
will represent 0.7 per cent of the presently allocated total annual allowable
catch for the fishery.
The retrospective operation of the amendment ensures that the intended
policy required by the SCMP is achieved and that the technical inadvertence
realised by the QFMA's application of the formula is overcome.
Further, the retrospective amendment facilitates a continuum of
management and administration for the spanner crab fishery. The
amendment will endorse and correct the allocation of ITQ units which was
made in accordance with the government's intended policy as evidenced by
the making of the SCMP as subordinate legislation after consideration and
approval by Cabinet.
Consultation
Government
The Department of the Premier and Cabinet, Queensland Treasury, the
Department of State Development and the Department of Employment,
Training and Industrial Relations were consulted in the preparation of this
Bill.
The Office of the Parliamentary Counsel prepared this Bill.
Industry
A process of extensive consultation with industry and stakeholders has
been undertaken with respect to the proposed amendments to the ECTMP.
The amendments in this Bill that relate to the proposed ECTMP are merely
incidental to the proper operation of that management plan. Therefore, it
was not considered that further consultation was required.
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Fisheries Amendment
Industry was not consulted with respect to the proposed amendments
which have been identified as necessary or desirable for the optimum
operation of the Fisheries Act 1994, the majority of which are relatively
minor amendments.
It was not considered appropriate to consult with industry with respect to
the technical deficiencies with the allocation of ITQ units under the SCMP
as the effect of the amendment relates to 0.7 per cent of the presently
allocated total allowable catch for this fishery. Further, this amendment
simply clarifies the policy intent of the SCMP, the making of which has
previously been the subject of extensive consultation.
Results of consultation
There is agreement between government agencies regarding the
proposals in the Bill.
NOTES ON PROVISIONS
Short title
Clause 1 provides that the short title of the Act will be the Fisheries
Amendment Act 2000.
Act amended
Clause 2 provides that the Act amends the Fisheries Act 1994 (the Act).
Insertion of new pt 1, div 3, sdiv1, hdg
Clause 3 inserts, at Part 1, division 3, a new subheading as follows:
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Fisheries Amendment
`Subdivision 1--Dictionary'
Amendment of s 4 (Definitions)
Clause 4 provides that the dictionary in the schedule (which is inserted by
virtue of Clause 20) defines particular words used in the Act, and relocates
definitions to the schedule.
Insertion of new pt 1, div 3, sdiv 2, hdg
Clause 5 inserts, after section 4 of the Act, a new heading as follows:
`Subdivision 2--Key Definitions'
Amendment of s 32 (Making Management Plans)
Clause 6 amends section 32 to extend the range of matters which may be
the subject of a management plan so that they include a fishery, a fish
habitat or declared fish habitat area, a fish way, fisheries resources and
aquaculture.
The benefit of making management plans for these matters are that the
plans:
(i) provide broad recognition of the values of fisheries, fish habitat
areas, declared fish habitat areas, fish ways, fisheries resources
and aquaculture;
(ii) raise key operational issues with respect to the management of
these matters;
(iii) become part of the Integrated Development Assessment System
process under the Integrated Planning Act 1997, especially for
local government planning schemes, which assists developers in
awareness of relevant fisheries issues at the earliest possible stage;
and
(iv) ensure Statewide consistency of delivery of management through
definition of issues and appropriate responses.
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Fisheries Amendment
Amendment of s 33 (Procedure to make management plan)
Clause 7 omits the words `for a fishery' from section 33 of the Act, so
that the provision has general application to the extended range of matters
which may be the subject of a management plan, in accordance with
amended section 32.
What management plan must deal with
Clause 8 omits section 35 that provides that a management plan must
deal with certain prescribed matters. It inserts a new section 35 that
provides that a mangement plan must state its objectives and how those
objectives are to be achieved.
It will no longer be obligatory for a management plan to include a
description of the fishery and a statement as to the known status of the
fishery. These matters are considered non-legislative and inappropriate for
inclusion in subordinate legislation.
It is intended (as part of the consequential amendments to the Fisheries
Regulation 1995 required to facilitate the proposed amendments to the
Fisheries (East Coast Trawl) Management Plan 1999, to insert a provision
into the Fisheries Regulation 1995 that will require this information to be
included in the explanatory notes prepared when a management plan is
made.
The requirement for a management plan to state how it may be amended
or repealed, including the consultation and other processes that must be
followed has been omitted. The amendments to section 39 (Amendment or
repeal of management plan) now address specifically the manner and
processes that must be followed to amend or repeal a mangement plan.
What management plan may deal with
Clause 9 amends section 36 by inserting a new example of the type of
matters that the chief executive may consider appropriate to deal with in a
management plan. This will allow a management plan to provide for the
management of a fishery by a system of authorities including:
� the issue of authorities;
� the conditions attached to authorities;
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Fisheries Amendment
� whether authorities can be amended, renewed or transferred and if
so, the conditions attached; and
� the cancellation or suspension of authorities or how the chief
executive may cancel or suspend them.
New examples are added to the list of examples in section 36 to reflect
the extended range of matters which may be the subject of a management
plan, in accordance with amended section 32.
Replacement of ss 38 and 39
Clause 10 amends section 38 of the Act (Management Plan may
provide for quota) so that a management plan may prescribe, or authorise
the issue of a quota generally, rather than with respect to a fishery only.
Clause 10 also replaces the existing section 39 (Amendment of
management plan). The purpose of the amendment is to clarify the
processes that must be followed to amend (or repeal) a management plan.
The new section 39 adopts section 42 of the Legislative Standards Act 1992,
providing that unless the amendment is one that would not require the
preparation of a regulatory impact statement, a management plan must be
amended by either:
� the preparation of a draft of the amendments and the taking of
reasonable steps to engage in consultation about the draft; or
� conducting a review of the plan, or the relevant part of it, where
the result of the review included a proposal to make the
amendment.
This amendment obviates the need to prepare draft amendments or
conduct a formal review where the amendment would not require the
preparation and public release of a regulatory impact statement. This will
facilitate a quicker and simplified process for making urgent and non-
significant amendments.
Section 39 also provides that a management plan may provide for how
the required consultation or review will occur.
Clause 10 also inserts a new section 39A (Effect of repeal of
management plan on authorities) that provides for the cessation of
authorities issued in relation to the management plan upon the repeal of the
management plan, unless specifically provided otherwise.
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Fisheries Amendment
Insertion of new pt 5, div 3, sdiv 5A
Clause 11 inserts, in part 5, division 3, a new subdivision as follows:
`Subdivision 5A--Leases'
Clause 11 inserts a new section 66A into the Act (Lease of authority
(other than permit)) which states that a regulation or management plan
may provide for the lease of an authority or the transfer of a lease of an
authority, other than a permit.
This amendment was proposed as a response to issues raised regarding
the temporary transfer of Individual Transferable Quota Units (ITQ units)
during the public consultation process with respect to the Fisheries
(Spanner Crab) Management Plan 1999. The ability to temporarily
transfer or lease ITQ units was considered desirable. The proposed new
part 5, division 3, subdivision 5A provides a clear head of power in the Act
to enable the regulation of leases of quota, once provided for in a
management plan or regulation.
New section 66A provides section 65(2) to (7) apply to a lease or transfer
of a lease as if the references in the section were a reference to the lease or
lease transfer. Section 65(2) to (7) of the Act provides, amongst other
things, that applications for transfers must be made to the chief executive.
New section 66A further provides that an authority may not be leased, or
a lease of an authority may not be transferred, other than under this section.
Clause 11 also inserts new section 66B, which provides that where an
authority holder leases an authority under new section 66A and the lease
continues to be in force, the things authorised by the authority can not be
done by the holder, but may be done by the lessee under the lease as if the
lessee were the holder. It also provides that, apart from specified sections, a
reference in the Act, regulation, management plan or authority to the holder
of the authority is, if the context permits, taken to include the lessee.
Suspension or cancellation of authorities
Clause 12 amends section 67 which provides that the chief executive
may suspend or cancel an authority issued by the chief executive in certain
circumstances. Clause 13 inserts a new subsection that provides that section
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Fisheries Amendment
67 does not affect the suspension or cancellation of an authority under a
regulation or management plan.
The intent of the amendment is for the suspension or cancellation of an
authority through the operation of the provisions of a management plan to
be an alternative basis to the suspension or cancellation through a decision
of the chief executive under section 67.
Procedure for cancellation or suspension
Clause 13 amends section 68 which prescribes the procedure that must
be followed by the chief executive to suspend or cancel an authority under
section 67.
Clause 13 inserts a new subsection that provides that the procedure
required to be followed under section 68 does not affect the suspension or
cancellation of an authority under a regulation or management plan.
Amendment of s 73 (Registers of authorities)
Clause 14 amends section 73(6) to exclude a lease from the interests
which a holder of an authority may apply to have noted on the register.
New section 66A provides that an authority may only be leased in
accordance with the requirements of that section. If the chief executive
approves a lease of an authority or a transfer of a lease, he or she may note
this interest on the register in accordance with section 73(2).
Amendment of section 92 (Duty of person who takes or possesses
noxious or nonindigenous fisheries resources)
Clause 15 amends section 92 of the Act so that there is no longer a
requirement to notify an inspector with respect to taking or possessing
noxious or nonindigenous fisheries resources. This requirement has often
proved to be impractical, and, at times, without reasonable purpose. The
new section provides that a person who unlawfully takes or possesses
noxious or nonindigenous fisheries resources must immediately:
(i) if the fisheries resource is a fish - kill it; or
(ii) if the fisheries resource is a plant - destroy it.
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Fisheries Amendment
Omission of s 121
Clause 16 omits section 121 of the Act which provides that a declared
fish habitat area may be managed under a management plan. This is due to
the fact that Clause 6 amends section 32 to extend the range of matters
which may be the subject of a management plan so that they include a
fishery, a fish habitat or declared fish habitat area, a fish way, fisheries
resources and aquaculture.
Amendment of s 124 (Chief Executive may rehabilitate or restore land
etc.)
Clause 17 amends section 124 of the Act to remove the preliminary
requirement that a person contravene a section of part 6 of the Act before the
chief executive may take action reasonably necessary to rehabilitate or
restore land, waters, marine plants or a declared fish habitat area.
Currently, section 124 is difficult to apply in a practical sense and, as a
result, has been unhelpful to the Queensland Fisheries Service (QFS) and its
predecessors in seeking to carry out rehabilitation and restoration. The
section states that the chief executive may take action reasonably necessary
to rehabilitate or restore land, waters, marine plants or a declared fish habitat
area if a person either contravenes a provision of part 6 of the Act, or does
not comply with a condition of an authority under the Act to rehabilitate or
restore.
The problem with the application of this section lies in the need to show
definitively that there has been a contravention by a person. This is often
difficult to establish, particularly in the case of acts which have been
committed a number of years before they are detected (for example,
unlawful construction of works in a declared fish habitat area). QFS may
only prosecute offences within a maximum of two years after the offence is
committed (section 220 of the Act). There is some argument that a
'contravention' means a prosecutable offence: therefore, if time has run out
to prosecute an offence, there is no contravention, and the chief executive
cannot take any action under section 124.
These difficulties have resulted in QFS rarely employing the powers
under section 124. There is, however, a real need for the chief executive to
be empowered to take action, where land, waters, marine plants or a
declared fish habitat area have been removed, damaged or destroyed, in
order to rehabilitate or restore the same.
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Fisheries Amendment
For this reason, the section is being amended to permit the chief
executive to take action if:
(i) the land, waters, marine plants or declared fish habitat area has
been removed, destroyed or damaged; and
(ii) the chief executive reasonably believes that the removal,
destruction or damage was caused by an act or omission that
constituted a failure to comply with the Act, a former Act, the
repealed Fisheries Act 1957, or a condition of an authority.
The current section 124(1)(a) refers to a contravention of a provision of
part 6 of the Act as grounds for taking action to rehabilitate of restore land,
waters, marine plants or a declared fish habitat area. The proposed amended
section 124(1)(b) refers to an act or omission which constitutes a failure to
comply with the Act. This will enable the chief executive to take action to
rehabilitate or restore with respect to matters outside part 6 of the Act, for
instance, with respect to matters in part 5, division 8, regarding the building
of fishways.
Amendment of s 199 (Powers of tribunal on appeal)
Clause 18 amends section 199(3) so that a person who has appealed to
the Fisheries Tribunal under section 196 of the Act may not appeal against
the Tribunal's decision to the Fisheries Tribunal once again. The
amendment ensures that the Tribunal's decisions are final, and prevents
circular appeals.
Insertion of new s 223A
Clause 19 inserts a new section 223A in the Fisheries (Spanner Crab)
Management Plan 1999. The inserted provision provides that section 94 of
the Fisheries (Spanner Crab) Management Plan 1999, which provides for
an adjustment of reported catch in special circumstances, is taken to have
always applied to two particular eligible licences under the Fisheries
(Spanner Crab) Management Plan 1999. The provision, by retrospective
operation, corrects technical inadvertence by the QFMA in its allocation of
Spanner Crab Units and ensures that the allocation occurred in accordance
with the intended government policy.
Section 223A, as inserted into the Fisheries (Spanner Crab)
Management Plan 1999, will expire the day after it commences.
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Fisheries Amendment
Insertion of schedule
Clause 20 inserts after section 238 of the Act, a schedule which will
contain the Act's dictionary.
Amendment to omit headings following cross references
Clause 21 amends the Act by providing for the removal of the reference
to a heading in words where this follows a cross reference to a particular
provision.
� State of Queensland 2000