ALERT DIGEST 3 of 1995
Part 2
3.1
This Bill was introduced into the Legislative Assembly on 8 March 1995 by The Honourable Geoff Coleman MP with The Honourable Bill McGrath MP.
3.2
The purposes of this Bill are to:-
- provide a modern legislative framework for the regulation, management and conservation of Victorian fisheries including aquatic habitats;
- reform the law relating to Victorian fisheries;
- repeal the Fisheries Act 1968
- make consequential amendments to other Acts;
3.3
The Committee received a written submission from the Victorian Fishing Federation. The Committee received a written response in respect of the submission from the Department of Conservation and Natural Resources. The Committee also held a meeting with Mr Peter Sheehan, Dr Geraldine Gentle and Mr Tim Harding, officers from the Department of Conservation and Natural Resources on 10 April 1995 to discuss its concerns in respect of the Bill.
3.4 ¯ Parts 1 and 2
Part 1 contains preliminary provisions. It includes the objectives and the definitions. The Act applies to Victorian waters. Part 2 relates to the Commonwealth and State Management of fisheries. "Joint Authority" is the Authority established under Part 5 of the Commonwealth Act of which the Minister is a member. Clause 16 sets out the Joint Authority's power of delegation which must be made by instrument in writing. The Joint Authority may delegate to a person any of its powers. Pursuant to sub-clause (3) the delegation may be expressed to be a delegation to the person from time to time holding or performing the duties of a specified office in the service of an Authority or under the law of the Commonwealth.
The Committee is of the view that the delegation clause may be too wide in that any powers can be delegated to any person. However the Committee is also of the view that the problem can be overcome by the insertion of the word "shall" instead of the word "may" thus providing the certainty necessary. The Committee wrote to the Minister on 17 March 1995. The Minister responded by way of letter dated 27 March 1995.
The relevant extract is set out:-
"Clause 16
Clause 16 of the Bill is a re-enactment of section 9E of the Fisheries Act 1968 and was inserted together with the rest of Part 1A of that Act by the Fisheries (Commonwealth-State Arrangements) Act 1981, which in turn gave effect to the Commonwealth-State Offshore Constitutional Settlement Agreement of 1977. This Agreement was made between the Commonwealth and the States as a result of the High Court decision in the Seas and Submerged Lands Case (New South Wales v. Commonwealth (1975) 135 CLR 337).
As explained in the explanatory memorandum to the Bill, with the exception of sub-clauses 13(2), 13(3) and minor drafting improvements, these provisions mirror similar provisions in equivalent legislation of the Commonwealth and other States, and facilitate intergovernmental co-operation, including by the establishment and operation of joint authorities to manage fisheries. I am advised that for this reason, these provisions could not be materially changed without the agreement of the Commonwealth, and the other States and territories.
The purpose of clause 16 is to enable a Joint Authority established pursuant to a Commonwealth-State agreement to delegate some or all of its powers. (No such Joint Authority has ever been established with respect to Victorian waters.) The possibility of such delegates not being officers in the service of the Commonwealth or a State was presumably envisaged. Indeed, the 1993 Report of the Senate Standing Committee on Industry, Science, Technology, Transport, Communications and Infrastructure on a review of Commonwealth fisheries legislation makes a good case for delegation to persons other than public servants, such as a single Minister or statutory corporation. Sub-clause (3) of clause 16 simply enables delegation by reference to a specified position in the service of the Commonwealth, another State or a Territory, rather than the name of a person.
The substitution of the word "shall" for "may" would prevent delegation to a specific person by name, and without other amendments would prevent a Joint Authority from delegating to Ministers, statutory corporations or even its own staff unless such staff are in the service of the Commonwealth or a State. Nevertheless, I shall bear your comments in mind during the next round of Commonwealth-State negotiations on this Agreement."
Clauses 21 and 22 set out the functions of the Joint Authority and provide that the Joint Authority is to exercise certain powers instead of the Minister. Clause 26 gives the Minister the power to enter into agreements with other Ministers.
3.5 ¯ Part 3 - Management plans
Part 3 relates to the preparation, content and declaration of management plans. Clause 32 governs the preparation of the fishery management plan. Before declaring a management plan, the Minister must consult with the relevant consultative body. The Secretary must consider all submission received. The Minister may appoint a person or persons as a review panel to review the submissions, the draft management plan and report to the Minister.
3.6 ¯ Part 4 - Regulation of fisheries
Part 4 provides for the regulation of fisheries. Pursuant to clause 36 a person must hold an authorised licence to engage in controlled activities which are specified. The relevant penalties are set out. The Governor in Council may specify exemptions by Order in Council. Clause 38 is the regulation making power. The Secretary may issue fishery licences subject to conditions if appropriate. Clause 42 provides for the transfer of fishery licences. Clause 43 governs the renewal of fishery licences.
Clause 44 sets out the powers of the Secretary in respect of fishery licences. The Committee wrote to the Minister on 17 March 1995 seeking confirmation that the power to prescribe eligibility criteria is the power under clause 38(1)(c). The Minister responded by way of letter dated 27 March 1995. The relevant extract is set out:-
"I confirm that the power to prescribe eligibility criteria is the power under clause 38(1)(c)."
Clause 45 provides that the holder of a fishery licence must give the details of a prescribed financial interest to the Secretary. Clause 47 provides for the declaration of fisheries by notice published in the Government Gazette. Those fisheries may be a quota managed fishery an input managed fishery, a developing fishery, an adjusting fishery and a specially managed fishery.
Clauses 57 and 58 provides for fishing closures and emergency fishing closures and set out the relevant penalties. Notice must be given in the Government Gazette, in newspapers, in writing to the holder of licences and permits and by announcement either broadcast or televised. Clause 61 sets out the offences and penalties in relation to size and bag limits. Clause 62 sets out additional penalties and suspension of a licence of a convicted offender by the Courts.
3.7 ¯ Part 5 - Protection of fisheries
Clause 63 provides for the declaration of protected aquatic biota by Order in Council. The Secretary may issue a protected aquatic biota permit pursuant to clause 66. Clause 68 sets out the duties of the Secretary in respect of noxious aquatic species. Clause 69 provides that the Governor in Council may declare a noxious aquatic species to prohibited, controlled, regulated or established noxious aquatic species. Permits may be granted under clause 75 and revoked under clause 76. Transportation of noxious aquatic species is authorised under clause 77.
Clause 82 provides that the Governor in Council make Orders in relation to fisheries reserves including spawning, hatching or nurseries, critical habitats, aquacultures, harvesting, management or monitoring, and for educational, research or scientific purposes. A Notice of Intention in relation to such fishery reserves must be published in newspapers circulating generally in Victoria. A Committee of Management may be established under clause 83 and a management plan prepared in accordance with Part 3.
3.8 ¯ Part 6 - Co-management
Clause 84 provides that the Minister may declare by notice in the Government Gazette "recognised peak bodies." Bodies corporate and associations may by formed pursuant to clause 85 provided that the relevant memorandum and articles of association are approved by the Minister and accord with the purposes of the Act. Fishery management advisory committees may be formed for the purposes of co-management. Draft codes of fishing practice may be prepared and recommended to the Minister pursuant to clause 87. Consultation must take place in writing with the relevant persons or bodies. Clause 88 sets out the matter which may be included in a code of fishing practice. Clause 89 governs the approval of a code of fishing practice and the method of publication.
3.9 ¯ Part 7 - Enforcement and legal proceedings
Part 7 relates to enforcement and legal proceedings. Clause 91 provides that the Secretary may serve a notice requiring a person to attest to the truth of the matters set out in the notice, by statutory declaration. Clause 92 sets out the authorised officers' powers of entry and inspection. An authorised officer may at any reasonable time enter upon any land or protected waters or any premises, other than a dwelling house for the purposes specified (a) to (I). An authorised officer or a member of the police force may at any time without warrant search any parcel, basket, boat, aircraft or vehicle or any premises other than a house for any document or thing. An authorised officer may upon reasonable notice require the production of any records and make extracts, copies or notes of such contents.
Clause 93 provides that an authorised officer or a member of the police force may enter a dwelling house at any time specified in a warrant obtained from a magistrate. Pursuant to such a warrant, the authorised officer or a member of the police force may enter, search the dwelling house or seize any evidence of an offence or anything used in connection with an offence. Noxious species may be destroyed. Receipts for items seized must be given as soon as practicable. Clause 95 specifies the authorised officer's power of seizure. An officer or a member of the police force may seize any fishing equipment, the use of which is prohibited. Anything including boats, motor vehicles, diving equipment, tools, provisions or office equipment may be seized to prevent the commission, repetition or continuation of an offence.
The Committee notes that the effect of the provision enables an authorised officer or a member of the police to seize almost anything. However the Committee also notes that the reasons for the insertion of such powers are to protect our natural resources and prevent illegal fishing. The Committee notes that these powers accord with those set out in the Fisheries (Amendment) Act 1994.
The Committee wrote to the Minister on 17 March 1995 seeking advice as to the meaning and purpose of "office equipment" in this context and the sort of things it is envisaged it will cover. The Minister responded by way of letter dated 27 March 1995.
The relevant extract is set out:-
"Clause 95
I am advised that the main type of office equipment which might need to be seized would evidence of offences by organised crime found on the hard disks of personal computers, in which case the relevant computer hardware would need to be seized (under the technical supervision of departmental computers experts). If facsimile machines are used to commit offences, they might need to be seized as well."
Clause 96 provides that any fishing equipment seized, the use of which is prohibited is forfeited to the Crown and may be disposed of as the Minister directs. Clause 97 governs the disposal of live fish or perishable things. Clause 98 sets out the offence in relation to seized property. Pursuant to clause 99 any person found offending must give his or her name and address on demand by an authorised officer. Note that this extends to those circumstances where the person finding him or her, believes on reasonable grounds that the person has committed an offence. A person who fails to give a name and address may be arrested by an authorised officer without warrant and taken before a bail justice or a Magistrates' Court.
Clause 100 provides that governs the hot pursuit of persons and boats beyond the coastal waters of Victoria by authorised officers. Clauses 101 to 111 set out various offences. Clause 113 sets out the evidentiary provisions. Clause 114 sets out the further evidentiary provisions and is the same as section 73, simplification of proof provision in the Fisheries Act 1968.
Clause 118 establishes a demerits points system. Clause 120 provides that the Court may prohibit a convicted person from being on boats or in certain places if satisfied of various criteria.
3.10 ¯ Part 8 - General provisions - Review of decisions
Clause 121 provides that a "reviewable decision" means a decision by a delegate of the Secretary to refuse to issue or renew a licence, refuse to approve the transfer of a licence etc. A person who is aggrieved by such a decision may apply to the Secretary for review of that decision. The Secretary's review must be completed within 28 days. Clause 122 provides for review by the Administrative Appeals Tribunal of "reviewable decisions". Those decisions are specified as those set out under 121(1)(a), (b) and (e).
The Committee wrote to the Minister on 17 March 1995 seeking clarification of the operation of clauses 121 and 122. The Minister responded by way of letter dated 27 March 1995. The relevant extract is set out:-
"Clauses 121 and 122
Clause 121 provides for an internal review of certain decisions, similar to section 51 of the Freedom of Information Act 1982. Sub-clause (1)(c) relates to the allocation of individual transferable quota to each access licence under clause 49(1) by a delegate of the Secretary in accordance with a decision by the Minister under clause 48(2)(I). In this allocation process, all holders of access licences for the fishery concerned would be treated equally. Whilst an internal review may be reasonable to remedy any errors resulting from clerical operations under clause 49(1), a hearing before the Administrative Appeals Tribunal is considered neither necessary nor justifiable.
Sub-clause (1)(d) of clause 121 relates to the approval of the transfer, acquisition or taking of additional individual transferable quota under clause 49(5) by a delegate of the Secretary. All such applications would normally be approved unless they are inconsistent with any relevant management plan. Once again, whilst an internal review may be reasonable to remedy any errors resulting from such a decision, a hearing before the Administrative Appeals Tribunal is considered neither necessary nor justifiable, when the decision is bound by the specific requirements of a management plan approved by the Minister.
Quota decisions under clauses 49(1) and 49(5) do not have the same latitude of discretion as decisions relating to the refusal to issue renew or transfer a licence or to suspend or cancel a licence and the consequences for the applicant are not as severe. Internal reviews are therefore considered to be a more appropriate remedy that AAT hearings for decisions relating to quota."
The Committee wrote a further letter to the Minister on 31 March 1995. The relevant extract is set out:-
"The Committee's concerns relate to the transfer of quotas. The Committee notes that if such applications are normally approved, then there is normally no cost or detriment to the community. To the extent the clause relates to the ordinary transfer or acquisition of existing quotas, the Committee sees no reason why such decisions should not be subject to review under normal administrative principles. However the Committee understands that in relation to additional quotas which are subject to management plans there may well be an argument that such decisions should not be subject to review by the Administrative Appeals Tribunal."
The Minister responded by way of letter. The relevant extract is set out:-
"Thank you for your letter dated 31 March 1995, in response to mine of 27 March 1995.
Clauses 121 and 122
I have reconsidered clauses 121 and 122 of the Bill in the light of your letter, and I am prepared to amend the Bill to allow a right of appeal to the Administrative Appeals Tribunal in respect of a refusal to approve the acquisition or transfer of quota, as you have suggested."
The Committee notes the Minister's undertaking to amend the Bill to allow a right of appeal to the Administrative Appeals Tribunal in respect of a refusal to approve the acquisition or transfer or quota.
Clause 123 provides that the Secretary must maintain a register. The Secretary has control of the fish hatcheries and research subject to the direction and control of the Minister. The Ministry may issue an authority to any person to carry out research. Clause 127 provides that the Minister, the Secretary or a delegate is not personally liable for anything done or omitted to be done in good faith under the Act.
Clauses 131 and 132 are confidentiality provisions which relate to secrecy and the improper use of information. The Committee wrote to the Minister on 17 March 1995 requesting advice as to what other pieces of legislation have made use of such provisions. The Committee also sought advice as to why it is necessary to go beyond the confidentiality provisions in the Constitution Act 1975. The Minister responded by way of letter dated 27 March 1995. The relevant extract is set out:-
"Sound fisheries management is utterly dependent on the availability of reliable, complete and accurate fishing data. DCNR has an invaluable database of commercial fishing catch and effort statistics dating back to the year 1911. The maintenance of the integrity of this database is vital for the detection of long-term trends in fish stocks and fishing practices, in the interest of Victoria's fishing industry and the State's economy.
The main purpose of clause 131 is to protect the ability of the State to collect complete and accurate catch and effort statistics from holders of commercial fishing licences. These statistics are compiled from catch and effort returns which are required to be submitted monthly as a condition of the grant of the licence. Recent attempts by tax, workcover or social security officials to gain access to these returns are jeopardising the integrity of the database by providing incentives for the falsification or failure to submit such returns. Clauses 131 and 132 provide a guarantee to commercial licence holders that there returns will not be misused for purposes other than those for which they are required to be submitted.
Similar provisions may be found in section 5 of the Payroll Tax Act 1971 and section 60 of the Environment Protection Act 1970."
Clause 135 provides for the imposition of royalties under the Act. The regulations prescribe the royalties. Prescribed levies may be charged under clause 136. Any regulations made in relation to clause 136 may only be made after the Minister has consulted with the relevant bodies.
Clause 137 provides for fisheries notices after the Minister has consulted with the relevant bodies. Such notices must be published in the Government Gazette and may apply, adopt or incorporate any document, code, standard or rule. Subclause (6) provides that a Fisheries Notice is a subordinate instrument for the purposes of the Interpretation of Legislation Act 1984. The Committee wrote to the Minister on 17 March 1995 seeking advice as to whether in fact it should read "Subordinate Legislation Act 1994". The Minister responded by way of letter dated 27 March 1995. The relevant extract is set out:-
"Clause 137
Clause 137 is a re-enactment with amendments of section 80 of the Fisheries Act 1968. Sub-clause (6) is similar to section 80(2)(a) of the existing Act. The Interpretation of Legislation Act 1984 is the correct reference, rather than the Subordinate Legislation Act 1994.
The purpose of fisheries notices which are also found in fisheries legislation of other jurisdictions is to enable urgent and essential fisheries management measures to be implemented by the Minister without the need for a Premier's Certificate under the Subordinate Legislation Act 1994. Fisheries notices have a maximum life of 12 months only, to give sufficient time for the making of replacement regulations subject to the regulatory impact statement process. I am advised that if there were no provisions for fisheries notices, the normal operation of Victoria's scallop industry alone would require as much as 10-12 Premier's certificates during the course of a typical scallop season."
Clause 137(7)(e) also provides that such notices "may confer powers or impose duties in connection with the notice on any person or body". The Committee wrote to the Minister on 17 March 1995 seeking advice as to the reasons for the breadth of the clause. The Minister responded by way of letter dated 27 March 1995. The relevant extract is set out:-
"Clause 137(7)(e) is a re-enactment of section 80(3)(e) of the existing Act and is necessary to enable the allocation or delegation of responsibility for the implementation of fisheries notices."
Clause 138 is the regulation making provision. Any regulations may incorporate codes of fishing practice or any documents.
Clause 138(2)(c) provides that regulations may be made with respect to regulating fishing competitions and the charging of fees by owners or occupiers of privately-owned land to persons to angle or fish on that land. The Committee wrote to the Minister on 17 March 1995 requesting advice as to what particular circumstances it is envisaged will be covered by regulations made under this provision. The Minister responded by way of letter dated 27 March 1995. The relevant extract is set out:-
"Clause 138(2)(c)
This clause is necessary to enable and control certain fishing competitions such as coarse angling for large numbers of noxious fish such as European Carp where there is a risk of noxious species being spread to uninfested catchments. Where fees are charged for the taking of fish on private land, it could well be argued that such fish are being sold and therefore subject to commercial licensing requirements. This sub-clause would enable a much cheaper and less onerous form of regulation by permit instead of commercial licences."
The Committee wrote a further letter to the Minister on 31 March 1995 with concerns in respect of the fees. The Minister responded by way of letter. The relevant extract is set out:-
"The word "fees" in my letter of 27 March refers to fees being charged by a landowner for the taking of fish. There is a need for power to regulate the taking of fish where such fees are being charged, for three main reasons as follows:
- there are major problems occurring at present from illegal sales of fish taken by persons who do not hold the necessary commercial licences. The charging of fees for persons to take fish is a way of selling fish and trading in live fish is undergoing a significant expansion at present. Failure to include power in the Bill to regulate the charging of fees for the taking of fish could in future enable the laundering of illegally taken live fish.
- in respect of the live fish trade, there is serious concern over the possible associated introduction of exotic organisms and fish diseases, such as the Barramundi virus. Power to regulate the taking of fish on a commercial scale is necessary as part of the suite of powers in the Bill to control the spread of such organisms and diseases.
- the taking of all fish for sale, whether from public or private waters will require a licence under the Bill, as it does under the existing Fisheries Act 1968. Regulating the sale of fish taken on private land under clause 138(2)(b) is likely to be a much cheaper and less onerous form of regulation than commercial fishing licensing under Part 4 of the Bill."
The Committee held a meeting with officers from the Department of Conservation and Natural Resources on 10 April 1995 to discuss its concerns in respect of the Bill. It was made clear at the meeting, that what is being regulated is the conduct of fishing on private land and not the level of fees. An undertaken was given to ensure that the provision regulates the conduct of fishing on private land and not the level of fees.
Clause 138(4)(c)(iii) provides that regulations may be made which adopt, apply or incorporate approved codes of fishing practice as formulated, issued, prescribed or published from time to time. The Committee wrote to the Minister on 17 March 1995 seeking advice as to whether there is an obligation to make such tertiary documents available to the public on request, so that an individual citizen can ascertain the state of the law if so desired. The Minister responded by way of letter dated 27 March 1995. The relevant extract is set out: -
"Clause 138(4)(c)(iii)
I am advised that section 32 of the Interpretation of Legislation Act 1984 already requires the tabling in Parliament of codes incorporated in or adopted by regulations. Clause 130 of the Bill also requires approved codes of fishing practice to be made available for public inspection."
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