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Marine and Fisheries Legislation
Amendment Bill 2019
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Part 1--Preliminary
Clause 1 provides that the purposes of the Bill are--
to amend the Fisheries Act 1995 to cancel all
Gippsland Lakes Fishery Access Licences and to
provide compensation in respect of the cancellation of
those licences;
to amend the Marine (Drug, Alcohol and Pollution
Control) Act 1988 to expand the application of the
definition of prescribed concentration of alcohol;
to amend the Marine Safety Act 2010 to provide that
volunteers are not marine safety workers, to provide for
the suspension and cancellation of inactive pilot
licences and to make further provision in relation to the
registration of pilotage services providers;
to amend the Transport (Safety Schemes Compliance
and Enforcement) Act 2014 to extend the scope of that
Act to premises associated with the design, manufacture
or supply of recreational vessels or marine safety
equipment and pilotage services provider premises.
Clause 2 provides that Parts 1, 2 and 6 of the Bill come into operation on
the day after the day on which the Bill receives the Royal Assent;
that Parts 3, 4 and 5 of the Bill, which include provisions which
expand the operation of an existing offence provision, create a
591049 1 BILL LA INTRODUCTION 27/8/2019
new offence provision and apply transport safety officers'
compliance and investigative powers to certain marine premises,
come into operation on a day or days to be proclaimed; and that,
if a provision of Part 3, 4 or 5 does not come into operation
before 1 August 2020, it comes into operation on that day.
Part 2--Amendment of Fisheries Act 1995
Clause 3 amends section 4(1) of the Fisheries Act 1995 to insert a new
definition of Gippsland Lakes into that Act.
Clause 4 amends section 58A of the Fisheries Act 1995 to extend the
exemption in that section to licences cancelled under new
Division 6 of Part 8 of that Act inserted by clause 6. Section 58A
requires certain licences cancelled under the Fisheries Act 1995
to be returned to the Victorian Fisheries Authority if the licence
has been cancelled or suspended under that Act within 14 days
after the cancellation or suspension comes into effect.
Clause 5 amends section 60 of the Fisheries Act 1995, which provides for
certain licences cancelled under the Fisheries Act 1995 to be
able to be transferred following cancellation. The amendment
exempts a licence surrendered or cancelled new Division 6 of
Part 8 of that Act from the operation of section 60, with the effect
that such a licence cannot be transferred.
Clause 6 inserts new Division 6 in Part 8 of the Fisheries Act 1995 which
provides for the cancellation of all Gippsland Lakes Fishery
Access Licences on 1 April 2021 or, if an election to surrender a
licence is made in accordance with the provisions in the Bill
before 1 April 2020, on that date and, in either case, provides for
the payment of compensation to licence holders calculated in
accordance with the provisions in the Bill.
New section 153M inserts new definitions of Gippsland Lakes
Fishery Access Licence and licence holder for the purposes of
new Division 6.
New section 153N(1) provides that the holder of a Gippsland
Lakes Fishery Access Licence may elect to surrender their
licence before 1 April 2020. The procedure by which an election
to surrender may be made is set out in Part 2 of new Schedule 5
inserted by clause 7.
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New section 153O provides that a licence that is successfully
surrendered in accordance with Part 2 of new Schedule 5 of the
Fisheries Act 1995 (which sets out the procedure by which a
licence holder may elect to surrender their licence) is cancelled
on 1 April 2020.
New section 153P provides that a licence that is not cancelled on
1 April 2020 by virtue of new section 153O is cancelled on
1 April 2021.
New section 153Q provides that any right or privilege acquired
or accrued against the State of Victoria in respect of a Gippsland
Lakes Fishery Access Licence cancelled under new Division 6 is
extinguished.
New section 153R provides that the State is not liable for any
loss, damage or injury resulting directly or indirectly out of the
cancellation of a Gippsland Lakes Fishery Access Licence or any
action taken or decision made under new Division 6 or new
Schedule 5, except as provided in new Division 6.
New section 153S provides that each holder of a Gippsland
Lakes Fishery Access Licence that is cancelled under new
Division 6 is only entitled to be paid compensation calculated in
accordance with, and limited to, Part 3 of new Schedule 5. New
section 153S(2) provides that the compensation will be paid from
the Consolidated Fund.
New section 153T provides that holder of a Gippsland Lakes
Fishery Access Licence that is cancelled under new Division 6 is
exempt from the operation of the offence in section 36(2) of the
Act relating to the possession of commercial fishing equipment
for a period of 12 months from cancellation of their licence. New
section 153T(2) provides that the exemption applies if the licence
holder possessed the commercial fishing equipment in the course
of carrying out activities under their Gippsland Lakes Fishery
Access Licence and the person has evidence of ownership of the
equipment immediately before the date on which their licence
was cancelled.
Clause 7 inserts new Schedule 5 into the Fisheries Act 1995 which
provides for the surrender of Gippsland Lakes Fishery Access
Licences (should a licence holder elect to surrender their licence),
and the calculation of compensation payable on cancellation of a
licence under the new provisions.
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Clause 1 of Part 1 of new Schedule 5 inserts new definitions of
licence, licence holder, records held by Victorian Fisheries
Authority and survey period for the purposes of that Schedule.
Part 2 of new Schedule 5 sets out the procedure by which a
licence holder may elect to surrender their licence.
Clause 2 of new Schedule 5 provides that the Minister must give
notice to each holder of a Gippsland Lakes Fishery Access
Licence that they may elect to surrender their licence, that a
successful election will result in the licence being cancelled on
1 April 2020 and that, if no election is made, the licence will be
cancelled on 1 April 2021. The notice must be published in the
Government Gazette and sent by letter to each of those licence
holders.
Clause 2(3) and (4) of new Schedule 5 set out what information
must be included in the notice including, in accordance with
subclause (4), the amount of compensation payable to the licence
holder if the licence is successfully surrendered under the new
provisions (and is therefore cancelled on 1 April 2020) and
amount payable if it is not successfully surrendered (and is
therefore cancelled on 1 April 2021).
Clause 3 of new Schedule 5 sets out the requirements that apply
to a notice of election to surrender a Gippsland Lakes Fishery
Access Licence. The notice must be in writing, received by the
Victorian Fisheries Authority by the closing date for making
elections to surrender, be signed by the licence holder and
include the information required by the notice under clause 2.
Clause 4 of new Schedule 5 provides that the Victorian Fisheries
Authority must determine that an election by the holder of a
Gippsland Lakes Fishery Access Licence to surrender their
licence is successful. The Authority must make such a
determination where an election complies with the requirements
of clause 3 of new Schedule 5, in which case the Authority must
provide a notification to the licence holder in accordance with
clause 5 of new Schedule 5. If an election does not comply with
clause 3 of new Schedule 5, the Authority must provide a
notification to the licence holder in accordance with clause 6 of
new Schedule 5 explaining that a further election may be made in
accordance with the provisions in the Bill.
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Clause 5 of new Schedule 5 requires the Victorian Fisheries
Authority to notify each licence holder who made a successful
election to surrender their licence that the election is successful,
that the licence will be cancelled on 1 April 2020 and the amount
of compensation to which the licence holder is entitled.
Clause 6 of new Schedule 5 requires the Victorian Fisheries
Authority to notify each licence holder who made an election to
surrender their licence that was unsuccessful (that is, that the
election did not comply with the requirements in clause 3) of that
fact, the reasons why, and that a further election may be made in
accordance with the provisions in the Bill.
Part 3 of new Schedule 5 contains provisions for compensation
payable to a Gippsland Lakes Fishery Access Licence holder
whose licence is cancelled under new sections 153O or 153P.
Clause 7 of Part 3 of new Schedule 5 sets out the basis for
determining the amount of compensation payable for the
cancellation of a Gippsland Lakes Fishery Access Licence.
Subclause 7(1) of new Schedule 5 provides that the amount of
compensation payable is determined in accordance with Table 1.
The formula in Table 1 sets out an amount payable for a
cancellation of a licence based on a fixed amount determined in
consideration of the cancellation of the licences ($371 000), an
amount for commercial fishing equipment ($60 000), and a
further amount calculated by reference to 3 times the average
annual catch value of the licence holder (T) if the licence is
successfully surrendered and, as a result, is cancelled on 1 April
2020. Table 1 provides for a 20% reduction of the combined
amount if no successful election to surrender is made and the
licence is consequently cancelled on 1 April 2021.
Subclause 7(2) of new Schedule 5 provides the method for
calculating the average annual catch value of the catch taken by a
licence holder. The total catch (in kilograms) taken by the
licence holder over the 5 year survey period for each of the fish
species set out in Table 2 is multiplied by the value of that fish
and divided by 5 to determine the annual average catch value of
that fish species. The annual average catch values of each fish
species are then added together to determine the annual average
catch value of the catch taken by the licence holder.
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Clause 8 makes statute law revision amendments to provisions in the
Fisheries Act 1995 which each substitute the word "one" for the
numeral "1" (for example, "one individual" is substituted for
"1 individual", "one penalty" is substituted for "1 penalty"). The
amendments are stylistic only and have no substantive effect on
the provisions amended.
Part 3--Amendment of Marine (Drug, Alcohol and Pollution
Control) Act 1988
Clause 9 amends the definition of prescribed concentration of alcohol in
section 3(1) of the Marine (Drug, Alcohol and Pollution
Control) Act 1988.
Under section 28(1)(b) of that Act, it is an offence for a person to
operate a vessel or be a master or pilot of a vessel underway or at
anchor while the prescribed concentration of alcohol, or more
than the prescribed concentration of alcohol, is present in that
person's blood or breath.
The new definition has the effect that the prescribed
concentration of alcohol that may be present in the blood or
breath of a pilot of a vessel underway or at anchor is any
concentration of alcohol, irrespective of the type of vessel of
which the pilot has the conduct. Under the current definition a
zero alcohol prescription applies to pilots with the conduct of
domestic commercial vessels, but not to pilots with the conduct
of other classes of vessels, in respect of which a prescribed
concentration of 0.05 grams per 100 millilitres of blood or
210 litres of exhaled air applies.
No change is made to the prescribed concentration of alcohol that
applies to a person operating a vessel underway, or who is the
master of a vessel underway or at anchor, if the person is under
the age of 21 or if the vessel is a domestic commercial vessel, or
to the prescribed concentration in the case of any other person.
Clause 10 amends section 3(1) of the Marine (Drug, Alcohol and
Pollution Control) Act 1988 to make a statue law revision
amendment to correct a punctuation error in the definition of
Victorian Marine Pollution Contingency Plan by substituting a
semi-colon for a full stop. The effect is to change
"Emergency Management Act 2013." to "Emergency
Management Act 2013;".
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Part 4--Amendment of Marine Safety Act 2010
Clause 11 amends section 3(1) of the Marine Safety Act 2010 to substitute
the definition of marine safety worker. The new definition
provides that a person who has carried out, is carrying out or is
about to carry out marine safety worker is a marine safety
worker. The new definition also provides that volunteers are not
marine safety workers. The effect of the amendment is to align
safety duties and offences that apply to volunteers to those of
analogous classes of persons (such as recreational boaters), with
appropriate (consequentially lesser) penalties attaching to
breaches of those duties.
For example, the maximum penalty for a person (other than the
master of a recreational vessel) who operates a recreational
vessel, when doing so under the direction of the master of the
recreational vessel, for failing to take reasonable care or to
comply with a direction of the master in the circumstances
specified in section 32(1) of that Act, is 25 penalty units. The
maximum penalty attaching to a marine safety worker for failing
to take reasonable care in the circumstances specified in
section 30 of that Act is 1800 penalty units.
Clause 12 inserts a new Part 4.6A in the Marine Safety Act 2010. New
Part 4.6A provides for the suspension and cancellation of inactive
pilot licences by the Safety Director following the Safety
Director undertaking a prescribed process.
New section 173A provides that the Safety Director may suspend
or cancel a pilot licence if the Safety Director is satisfied that the
licensed pilot has not acted as a pilot for a period of at least
12 months or does not intend to act as a pilot.
New section 173B provides for the procedure for suspension and
cancellation of inactive pilot licences.
Before taking action to suspend or cancel a licence, the Safety
Director is required to serve a notice on the licensed pilot. The
notice must state the proposed action and the grounds for the
proposed action and must invite the affected person to make a
written submission as to why the proposed action should not be
taken. The notice must state the period within which a written
submission may be made. That period must be at least 28 days
after the notice is served on the person.
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The Safety Director is required to consider any written
submission given by the affected person. Following this process,
if the Safety Director is satisfied that grounds for taking action
are established, the Safety Director may take that action specified
in the notice previously provided to the affected person. The
Safety Director must then, as soon as practicable, serve written
notice on the affected person advising the person of the Safety
Director's decision to take, or not to take, action and, if the
decision is to suspend or cancel a licence, the date on which any
suspension or cancellation takes effect.
New section 173C provides that the effect of a suspension of a
pilot licence under section 173A is that, during the period of
suspension, the person is taken not to hold a pilot licence.
New section 173D provides for the return of a pilot licence which
has been suspended or cancelled under section 173A.
New subsection (1) provides that the person is required to return
the pilot licence to the Safety Director within 7 days after the
suspension or cancellation takes effect. If the pilot licence has
been lost, stolen or destroyed, the person must give the Safety
Director a statement, verified by statutory declaration, that the
pilot licence has been lost, stolen or destroyed.
New subsection (2) provides that the Safety Director must return
a pilot licence to the person if a licence held by the person is
suspended and it has not expired when the suspension ends.
Clause 13 substitutes a new provision for section 241 of the Marine Safety
Act 2010, which provides for the registration of a person as a
pilotage services provider. The effect of the amendment is that
the Safety Director, on receiving an application for registration
under section 240 of that Act, is required to register the person if
the Safety Director is satisfied that the person has the competence
and capacity to carry out pilotage services safely. The Safety
Director is required to have regard to whether the person meets or
satisfies any prescribed requirements.
Clause 14 inserts a new section 247A in the Marine Safety Act 2010. The
new provision requires a pilotage services provider to report the
full particulars of a reportable incident to the Safety Director if
that provider provided the pilot who had the conduct of the vessel
that was involved in the reportable incident. A written report
must be provided to the Safety Director as soon as possible after
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the incident occurs. The purpose of the new provision is to
improve the information available to the Safety Director about
marine incidents for compliance monitoring and enforcement
purposes.
Clause 15 inserts a new item 10A in Schedule 2 to the Marine Safety
Act 2010. Item 10A provides for a power to make regulations
relating to requirements to be met or satisfied for the purposes of
registration as a pilotage services provider.
The requirements may be in respect of systems (including but not
limited to safety management systems), procedures and policies
for--ensuring that pilots are not impaired by fatigue, alcohol or
drugs; the training, instruction, assessment and supervision of
pilots; maintenance and records of the aforementioned systems,
procedures and policies and notices required to be given to the
Safety Director in respect of those matters; and for ensuring that
pilots employed or engaged are qualified and competent, and
medically fit, to act as pilots.
Clause 16 amends the Marine Safety Act 2010 to make 3 statute law
revisions.
Section 93(2) is amended to include the words "that is" after
"vessel", to more clearly indicate that the provision applies where
a vessel, not a master, is involved in a reportable incident.
Paragraph (c) of the definition of authorised representative, in
provisions relating to the use and disclosure of information,
currently refers to an agent for the individual within the meaning
of the Medical Treatment Act 1988. The amendment
substitutes this provision to correct the cross-reference, as that
Act that has been repealed and re-enacted.
The heading to Part 9.3 of the Marine Safety Act 2010 is
repealed. All provisions of Part 9.3 have been repealed and the
heading is now redundant.
Part 5--Amendment of Transport (Safety Schemes Compliance
and Enforcement) Act 2014
Clause 17 amends the definition of marine premises in section 3 of the
Transport (Safety Schemes Compliance and Enforcement)
Act 2014 and inserts several new definitions in that section.
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Paragraph (a) amends the definition of marine premises to
include--
premises associated with the design, commission,
construction, manufacture, supply, maintenance, repair
or modification of a recreational vessel;
premises associated with the design, commission,
construction, manufacture, supply, installation,
maintenance, repair or modification of marine safety
equipment; and
premises owned or occupied by pilotage services
providers for the purpose of providing pilotage services.
Paragraph (b) inserts new definitions of marine safety
equipment, pilotage services and pilotage services provider in
section 3(1) of the Transport (Safety Schemes Compliance and
Enforcement) Act 2014. Those definitions have the same
meaning that they have in the Marine Safety Act 2010 and are
required to support the changes to the definition of marine
premises.
The effect of the amendment is to enable transport safety officers
to exercise compliance and investigative powers conferred by the
Transport (Safety Schemes Compliance and Enforcement)
Act 2014 in respect of the premises to which the amended
definition applies.
Part 6--Repeal of this Act
Clause 18 provides for the automatic repeal of this Act on 1 August 2021.
The repeal of this Act does not affect the continuing operation of
the amendments made by this Act (see section 15(1) of the
Interpretation of Legislation Act 1984).
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