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Fisheries Amendment Bill 2008
Fisheries Amendment Bill 2008
Explanatory Notes
Short Title of the Bill
The short title of the Bill is the Fisheries Amendment Bill 2008 (`the Bill').
Policy objectives of the Bill
The primary objective of the Bill is to ensure recognition of the traditional
and customary fishing rights of Aborigines or Torres Strait Islanders within
the framework of ecologically sustainable development (in accordance
with the purpose of the Fisheries Act 1994 - Fisheries Act).
The detailed objectives of the Bill are to:
� Clarify that the exercise of fishing activities under Aboriginal
tradition and Torres Strait Island custom (hereinafter referred to
as traditional fishing) in accordance with section 14 of the
Fisheries Act may only be for the purpose of personal, domestic
and non-commercial communal use;
� Specify that traditional fishing can only be undertaken while
using recreational fishing apparatus defined under the Fisheries
legislation;
� Ensure that traditional fishing does not take place in prescribed
regulated waters that are closed to all fishing activity, subject to a
discretion of the chief executive to issue a permit in these waters
(hereinafter referred to as closed waters);
� Clarify the mechanism by which traditional fishing can be
regulated;
� Remove the requirement for cooperation of all Aborigines or
Torres Strait Islanders in Queensland when developing
regulations regarding traditional fishing activity, noting that
consultation requirements under the Statutory Instruments Act
1992 concerning people affected by any restriction proposed
under regulation would remain; and
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� Put beyond doubt that section 14 is a defence provision.
Policy rationale
In 2006 a Queensland Court of Appeal decision [Stevenson v Yasso [2006]
QCA 40 (Yasso decision)], raised questions in relation to the scope of
section 14 of the Fisheries Act 1994 (the Fisheries Act).
In that matter, the Court of Appeal upheld the right of a traditional fisher to
use commercial fishing nets under section 14 of the Fisheries Act.
The decision raised questions in relation to the scope of section 14 and
prompted a review of the provisions to ascertain the correct balance
between the desire to protect Aboriginal traditional and Torres Strait Island
customary fishing and the need to promote ecologically sustainable use of
fisheries resources across Queensland.
Accordingly, the current Bill is intended to resolve several policy issues to
protect and promote the long term sustainability of Queensland's fisheries
resources by:
� Addressing the practice by Indigenous fishers of fishing with
types of apparatus that are capable of taking large quantities of
fish, including juveniles. Depending on the tradition of a
particular Indigenous group, such apparatus could be the same as
commercial fishing apparatus. The practice has the potential to
increase to unsustainable levels, which could threaten the long
term viability of fish stocks.
� Removing any doubt that traditional fishing exercised in
accordance with section 14 is only for personal, domestic and
non-commercial communal use to ensure that section 14 is not
used as an avenue for commercial fishing and commercial sale of
fish.
� Addressing the increasing practice by some Indigenous people of
fishing in closed waters. The concern about anyone fishing in
these closed waters is that the waters have particular attributes,
such as being spawning grounds, the preservation of which are
essential to the long term sustainability of fish stocks. The Bill
proposes to address these increasing human pressures on these
vulnerable areas and ensure the closed waters achieve
sustainability objectives.
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Fisheries Amendment Bill 2008
The Bill is also intended to resolve a procedural matter concerning the use
of management plans to further restrict the operation of section 14. To
ensure consistency and certainty across Queensland, it is considered that
the more appropriate mechanism for any capacity to regulate should be by
way of regulation, which is still provided for under the proposed wording
of section 14.
Further, the Bill is intended to address a practical issue concerning
consultation. The current requirement to reach agreement through
cooperation requires a reasonable attempt to achieve a meeting of minds
which, in practical terms, is difficult to achieve through negotiation on a
State-wide basis in any timely way, when taking into account the diversity
of Indigenous groups and their needs. Consultation requirements under the
Statutory Instruments Act 1992 concerning people affected by any
restriction proposed under regulation would remain.
The Bill also redrafts section 14 of the Act so that it is clear that it is
intended by Parliament to operate as a defence provision. As with all
defences, it is incumbent upon the defendant to establish the defence on the
balance of probabilities, before the prosecution must negate the defence
beyond reasonable doubt. This amendment is proposed to remove all doubt
as to the requisite burdens of proof in a prosecution where section 14 is
raised by the defendant.
The amendment Bill does not affect the opportunity for Indigenous people
to apply for a General Fisheries Permit to engage in a fishing activity that
would be otherwise unlawful under the Fisheries legislation, for example
for the purpose of ceremonial and cultural events.
The amendment Bill also does not affect opportunities for Indigenous
people to obtain a commercial fishing licence from the open market to
undertake commercial fishing activities in accordance with fisheries
legislation. Nor does it prevent Indigenous people from applying for
Indigenous Fishing Permits (IFP) outside closed waters. IFPs are not a
substitute for permanent commercial fishing licences but are used as an
interim measure to assist Indigenous involvement in commercial fishing
and to assist the development of properly constructed economic and
business development projects.
Section 14 was and is intended by Parliament to be a "special measure"
within the meaning of section 8 of the Racial Discrimination Act 1975
(Cth) (RDA). Section 14 confers a legislative benefit on Aboriginal and
Torres Strait Islanders to engage in traditional fishing, subject to a
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Fisheries Amendment Bill 2008
regulation. The benefit was legislatively conferred by Parliament in order
to secure the adequate advancement of Aboriginal and Torres Strait
Islanders, through ensuring the protection and preservation of traditional
fishing practices. The amendment of section 14 is considered necessary to
ensure an appropriate balance between the long term sustainability of fish
stocks and the benefit to Aboriginal and Torres Strait Islanders to engage in
traditional fishing. However, it still confers significant protection of
traditional fishing.
How the policy objectives will be achieved
The policy objectives will be achieved by:
� Amending subsection 14(1) to provide that traditional fishing
may only be exercised for personal, domestic and
non-commercial communal use;
� Amending subsection 14(1) to provide that the traditional fishing
may only be exercised while using the same fishing apparatus as
recreational fishers (recreational apparatus is defined in the Bill).
This makes it clear that section 14 does not enable Aborigines
and Torres Strait Islanders to use commercial apparatus or any
other apparatus that is not prescribed as recreational apparatus
under the Regulation. This will also reduce the likelihood of
taking commercial quantities of fish under traditional fishing
activities;
� Amending section 14 to ensure that it does not apply to closed
waters (prescribed waters are defined in the Bill);
� Amending subsection 14(2) to remove reference to `management
plan' so that subsection 14(1) is subject to a provision of a
regulation that expressly applies to acts done under Aboriginal
tradition or Island custom;
� Omitting subsection 14(3) to remove the requirement that a
regulation can only be developed after cooperation with
Indigenous persons; and
� Redrafting section 14 to make it clear that section 14 is a defence
provision so that the ordinary rules relating to the burden of proof
for a defence apply.
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Fisheries Amendment Bill 2008
Alternative method of achieving the policy objectives
An alternative method of achieving the policy objectives is to repeal
section 14 in its entirety. In practice, this option would remove the special
status currently enjoyed by traditional fishers and could have a significant
affect on these fishers. This outcome is contrary to the recognition of
traditional rights in general, and traditional fishing rights in particular, and
is not considered to be within the spirit of Aboriginal reconciliation.
The option of repealing section 14 is not preferred because it remains
Parliament's intention to secure the adequate advancement of Aboriginal
and Torres Strait Islanders, through ensuring the protection and
preservation of traditional fishing practices in a sustainable way. The
restrictions on section 14 that are proposed in this Bill are intended to help
achieve this sustainability objective.
Estimated cost for Government implementation
S24HA of the Native Title Act 1993 (Cth) [NTA] provides that native title
holders are entitled to compensation from the State for affecting the
exercise or enjoyment of their native title in accordance with Part 2
Division 5 of the NTA. A claim for compensation under that Division must
be made to the Federal Court and it would be necessary for the person
making the claim to prove they are native title holders. There have not yet
been any relevant decisions in relation to the payment of compensation for
affecting native title.
Consistency with the Fundamental Legislative Principles
Does the Bill have sufficient regard to Aboriginal tradition and
Islander custom?
It is a fundamental legislative principle that a Bill should have sufficient
regard to Aboriginal tradition and Island custom (section 4(3)(j) of the
Legislative Standards Act 1992).
The proposed changes to section 14 of the Act will allow certain tradition and
custom to continue while ensuring that important sustainability issues are
addressed. Indigenous fishers will be able to continue to fish for personal,
personal, domestic and non-commercial communal purposes, using
recreational apparatus. The exception to this is that traditional fishing will
not occur in specific closed waters. In respect of cultural and ceremonial
fishing purposes, permits may be issued.
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Fisheries Amendment Bill 2008
Does the Bill reverse the onus of proof in criminal proceedings?
It is a fundamental legislative principle that a Bill should not reverse the
onus of proof in criminal proceedings without adequate justification
(section 4(3)(d) of the Legislative Standards Act 1992).
The Bill redrafts section 14 of the Act so that it is clear that it is intended by
Parliament to operate as a defence provision. As with all defences, it is
incumbent upon the defendant to establish the defence on the balance of
probabilities, before the prosecution must negate the defence beyond
reasonable doubt.
This amendment is proposed to remove all doubt that may have been raised
by the Yasso decision as to the requisite burdens of proof in a prosecution
where section 14 is raised by the defendant. Two of the three Court of
Appeal Judges in the Yasso decision believed that the defendant bore the
onus of proving all the elements of section 14 on the balance of
probabilities. Accordingly, it is believed that the amendments to section 14
do not reverse the onus of proof.
However, if the view of the remaining Court of Appeal Judge is correct that
it was sufficient for the defendant to raise only some evidence of the
pertinent matters in section 14, then the existing burdens of proof will be
altered by the proposed amendment. In this regard, it is considered that the
amendment is justified on the basis that it is normal practice for a
defendant, in raising a defence, to be required to do more than simply raise
some evidence of the pertinent matters but to establish the defence on the
balance of probabilities.
Does the Bill have sufficient regard for the rights and liberties of
individuals?
It is a fundamental legislative principle that a Bill should have sufficient
regard for the rights and liberties of individuals (section 4(2)(a) of the
Legislative Standards Act 1992).
As mentioned above, section 14 is a special measure enacted by Parliament
in order to secure the adequate advancement of Aboriginal and Torres
Strait Islander people, through ensuring the protection and preservation of
traditional fishing practices.
To the extent that the amendment lessens the statutory benefit(s) conferred
by Parliament under section 14, this is considered wholly justified on the
grounds of protecting and promoting the ecologically sustainable use of
fisheries resources.
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Fisheries Amendment Bill 2008
It is considered that the Bill has sufficient regard for Aboriginal tradition
and Islander custom, does not abrogate established rights and liberties
without adequate justification, and appropriately deals with onus and
standard of proof issues. No other considerations regarding the rights and
liberties of individuals have been identified as arising from the Bill.
For these reasons, it is considered that the Bill has sufficient regard to the
rights and liberties of individuals.
Does the Bill authorise amendment of an Act by means other than
another Act?
It is a fundamental legislative principle that a Bill should authorise the
amendment of an Act only by another Act (section 4(4)(c) of the
Legislative Standards Act 1992). Authorising amendment by means other
than another Act (a Henry VIII clause) would offend this fundamental
legislative principle.
The Bill refers to `recreational fishing apparatus' and `prescribed waters'.
Both the types of apparatus that are recreational fishing apparatus and the
prescribed waters could be altered by amendment of the Regulation. On
this basis, it could be argued that clause 4(2) of the Bill is a Henry VIII
clause.
However, in the Scrutiny of Legislation Committee's Report on `The Use of
"Henry VIII Clauses in Queensland Legislation' of January 1997, the
Committee noted (at page 23 of the report) that it is appropriate that
Parliament consider a general principle and that matters of detail may be
left to subordinate legislation. Also, the Committee concluded (at page 24
of its report) that a Henry VIII clause is a clause that enables a subordinate
instrument to have `the same effect on an Act as an amendment to that Act
(in that the relevant section of the Act would have to be read as if it
contained different words)'.
Given the Committee's conclusion regarding Henry VIII clauses, it is
considered that clause 4(2) does not constitute a Henry VIII clause.
Does the Bill delegate legislative power in an inappropriate
circumstance, or to inappropriate persons?
It is a fundamental legislative principle that delegation of legislative power
should occur only in appropriate cases and to appropriate persons (section
4(4)(a) of the Legislative Standards Act 1992).
Section 223 of the Act provides that the Governor in Council may make
regulations under the Act. Such regulations may currently relate to matters
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Fisheries Amendment Bill 2008
including regulated fishing apparatus declarations and regulated water
declarations (see sections 37(3), 37(5) and 42 of the Fisheries Act).
It is considered that it is appropriate to delegate the power to prescribe
regulated waters for the purpose of section 14, rather than requiring
Parliament to exercise legislative power. Parliament will, by clause 4(2),
specify the principle regarding regulated waters within stated parameters in
clause 4(3), and delegate the power to prescribe the detail regarding that
principle. In this regard, it is noted that the waters that may be prescribed
pursuant to section 14(1) must already be closed waters.
Consideration at the highest executive level is considered fitting, given that
Indigenous fishing rights may be affected regarding such proposed
prescribed regulated waters. Accordingly, the Governor in Council is
considered to be an appropriate delegate for the power to prescribe
regulated waters for the purpose of section 14.
Does the Bill have sufficient regard to the institution of Parliament?
It is a fundamental legislative principle that a Bill should have sufficient
regard for the institution of Parliament (section 4(2)(b) of the Legislative
Standards Act 1992).
As set out above, it is considered that the Bill does not enable amendment
of the Act by means other than another Act, and does not delegate
legislative power inappropriately. No other considerations regarding the
institution of Parliament have been identified as arising from the Bill.
For these reasons, it is considered that the Bill has sufficient regard to the
institution of Parliament.
Consultation
Community
The Department of Primary Industries and Fisheries has undertaken
preliminary consultation with one of Queensland's Indigenous
communities that will be affected by the proposed amendments - the
Darumbal community in Rockhampton. The Community expressed its
preference for finding a local solution rather than making an Act
amendment to address current issues arising from traditional fishing. While
the Darumbal indicated that they would support the exclusion of all fishing
activity (including by Aboriginal people) downstream from the Fitzroy
River barrage (a prescribed water), they would not support any restrictions
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Fisheries Amendment Bill 2008
at all on their traditional way of fishing, in particular the limitations to
recreational fishing apparatus proposed in the Bill.
Other communities have not been consulted and their views on the
proposed amendments are unknown. However, Government proposes to
commence targeted consultation with Indigenous communities prior to
Parliament's debate of the Bill.
Government
The following government agencies were consulted on this Bill -
Department of Natural Resources and Water (Native Title Services);
Department of the Premier and Cabinet; Department of Communities
(Office of Aboriginal and Torres Strait Islander Partnerships); Department
of Justice and Attorney-General; Environmental Protection Agency; and
Queensland Treasury.
All agencies support the proposed amendments.
Notes on Provisions
Clause 1 provides that this Act may be cited as the Fisheries Amendment
Act 2008.
Clause 2 provides that this Act commences on a day to be fixed by
proclamation.
Clause 3 provides that this Act amends the Fisheries Act 1994.
Clause 4(1) replaces the heading to clarify that section 14 is a defence for
Aborigines and Torres Strait Islanders for particular offences under the
Fisheries Act.
Clause 4(2) replaces the current section 14(1) and provides that section 14
is available to an Aboriginal and Torres Strait Islander person as a defence
for an offence against the Fisheries legislation for taking, using or keeping
fisheries resources or using fish habitat only if the person proves:
(a) the person is an Aborigine who at the time of the offence was
acting under Aboriginal tradition, or the person is a Torres Strait
Islander, who at the time of the offence was acting under Islander
custom; and
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Fisheries Amendment Bill 2008
(b) the taking, using or keeping of the fisheries resources, or the
using of the fish habitats was for the purpose of satisfying a
personal, domestic or non-commercial communal need of the
Aborigine or Torres Strait Islander; and
(c) either:
a. the taking or using of the fisheries resources, or the using of
the fish habitats, was carried out using recreational fishing
apparatus; or
b. the fisheries resources kept were taken using recreational
fishing apparatus; and
(d) the taking or using or keeping of fisheries resources or using of
fish habitats was not carried out in any prescribed waters, and, if
the keeping of the fisheries resources was not occurring in any
prescribed waters, the fish were not taken from prescribed
waters.
Clause 4(2) means that an Aborigine or Torres Strait Islander will not have
a defence under fisheries legislation to undertake any traditional fishing
activities that are carried out for a purpose other than for personal,
domestic or non-commercial communal needs. The clause is intended to
make clear that section 14 does not allow Aboriginal or Torres Strait
Islander persons to exploit the resource in a commercial manner without
compliance in all respects with the Fisheries legislation.
Section 14 is not available to an Aborigine or Torres Strait Islander if the
person has: a) taken or used fisheries resources in any of the prescribed
waters; b) kept fish in the prescribed waters, regardless of where the taking
of the fish occurred; or c) kept fish outside the prescribed waters that were
taken inside the prescribed waters.
Outside of prescribed waters, an Aborigine or Torres Strait Islander will
not have a defence under fisheries legislation to undertake traditional
fishing activities using any apparatus that is not prescribed as recreational
fishing apparatus.
As the clause is framed as a defence it is intended that the standard of proof
for the defendant would be on the balance of probabilities, and beyond
reasonable doubt for the prosecution.
Clause 4(3) removes the use of a management plan to regulate traditional
fishing so that clause 4(2) is subject to a provision of a regulation that
expressly applies to acts done under Aboriginal tradition or Island custom.
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Fisheries Amendment Bill 2008
Clause 4(4) omits requirements for cooperation in reaching agreement
with Aborigines and Torres Strait Islanders in developing a regulation
under clause 4(3) and inserts definitions for clause 4(2).
For the purposes of section 14, prescribed waters are only those waters that
are:
(a) regulated waters under a regulation under the Fisheries Act; and
(b) prescribed specifically under a regulation for the purposes of
section 14; and
(c) regulated waters where the taking of any fish, or the possession
of any fish taken, by any person is prohibited, subject to a
discretion of the chief executive to issue a permit in these waters.
For the purposes of section 14, recreational fishing apparatus means fishing
apparatus that is recreational fishing apparatus under a regulation under the
Fisheries Act.
� State of Queensland 2008
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