Federal Register of Legislation - Australian Government

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Final (Small Pelagic Fishery) Declaration 2012

Authoritative Version
Declarations/Other as made
This declaration provides a Commercial Fishing Activity under the Environment Protection and Biodiversity Conservation Act 1999.
Administered by: Environment and Energy
General Comments: This declaration is to be in force for the period from the end of the day on which this instrument is registered in the Federal Register of Legislative Instruments until the earliest of the following times: (a) the end of the day on which the report of the expert panel is published on the Department's website under paragraph 390SL(a) of the EPBC Act; (b) midnight on 18 November 2014; (c) if this declaration is revoked—when the revocation comes into force.
Registered 19 Nov 2012
Tabling HistoryDate
Tabled Senate22-Nov-2012
Tabled HR26-Nov-2012

EXPLANATORY STATEMENT

(Issued by the Authority of the Minister for Sustainability, Environment, Water, Population and Communities)

Environment Protection and Biodiversity Conservation Act 1999 (Cth)

Final (Small Pelagic Fishery) Declaration 2012

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) provides for the protection of the environment and the conservation of biodiversity, including the protection of the environment in Commonwealth waters.

Legislative background

Sections 390SA and 390SB of the EPBC Act prohibit a person from engaging in a declared commercial fishing activity in a Commonwealth marine area. The term ‘Commonwealth marine area’ is defined in section 24 of the EPBC Act. 

Section 390SD of the EPBC Act enables the Minister, with the agreement of the Minister administering the Fisheries Management Act 1991 (Cth) (Fisheries Minister), to declare a commercial fishing activity, to be a ‘declared commercial fishing activity’ on an interim basis (interim declaration) while the Minister consults with affected fishing concession holders about a longer-term prohibition for the same specified activity (during which an independent expert panel will conduct an assessment of the impacts of the activity). The Interim (Small Pelagic Fishery) Declaration 2012 was made on the 20 September 2012.

Pursuant to section 390SE of the EPBC Act, the Minister sought written submissions from ‘declaration affected persons’ about the impact on their rights or interests in relation to fishing, if a final declaration were to be made for the declared commercial fishing activity. A notice was published on the Department’s website on 20 September 2012. In response to the request for submissions the Department received 116 submissions, of which five submissions were received from ‘declaration affected persons’ (within the meaning given by section 390SE(3) of the EPBC Act). The Minister considered those submissions in accordance with section 390SF(2)(c) of the EPBC Act in making the final declaration.

Section 390SF of the EPBC Act enables the Minister to declare a specified commercial fishing activity to be a ‘declared commercial fishing activity’ through a final declaration (final declaration).  The final declaration must be made about the same declared fishing activity as specified in the interim declaration.

Effect of the Declaration

The Final (Small Pelagic Fishery) Declaration 2012 (the Declaration) provides that a commercial fishing activity that:

a)         is in the Small Pelagic Fishery;

b)         uses the mid-water trawl method; and

c)         uses a vessel which is greater than 130 metres in length, has an on-board fish          processing facility and has storage capacity for fish or fish products in excess of 2000 tonnes (large mid-water trawl freezer vessel),
is a declared commercial fishing activity for the purposes of Chapter 5B of the EPBC Act.

The objective of the Declaration is to prohibit fishing by large mid-water trawl freezer vessels in the Small Pelagic Fishery for a period of up to 24 months while an expert panel assesses the environmental impacts of the declared commercial fishing activity.

Consultation with the Fisheries Minister

Section 390SF of the EPBC Act provides that the Minister cannot make a final declaration unless the Minister and the Fisheries Minister agree that:

a)         there is uncertainty about the environmental impacts of the commercial fishing activity; and

b)         it is appropriate that an expert panel be established to conduct an assessment of the commercial fishing activity and report on the matter and that the commercial fishing activity be prohibited in a Commonwealth marine area while the expert panel conducts the assessment.

Before making the final declaration, the Minister consulted with the Fisheries Minister for the purpose of seeking his agreement as to these matters.

The Fisheries Minister agreed that:

a)         there is uncertainty about the environmental impact of commercial fishing activities undertaken by large mid-water trawl freezer vessels in the Small Pelagic Fishery; and

b)         it is appropriate that an expert panel be established to conduct an assessment of the commercial fishing activity and report on the matter; and

c)         it is appropriate that the commercial fishing activity be prohibited in a Commonwealth marine area while the expert panel conducts its assessment.

The Declaration is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (Cth).

The Declaration commenced at the end of the day it was registered on the Federal Register of Legislative Instruments.

Details of the Declaration are set out in the Attachment.

 

 

 

 

 

 

 

 

 

 

Statement of Compatibility with Human Rights

Prepared in accordance with s 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Final (Small Pelagic Fishery) Declaration 2012

1.            The Final (Small Pelagic Fishery) Declaration 2012 (the Declaration) does not engage any of the applicable rights or freedoms. The Declaration is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

2.            Sections 390SA and 390SB of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) prohibit a person from engaging in a 'declared commercial fishing activity' in a Commonwealth marine area. Section 390SF of the EPBC Act enables the Minister to make a declaration (a final declaration) that specified commercial fishing activity is a 'declared commercial fishing activity'. A final declaration is in force for a period specified by the Minister in the declaration, but the period must not be longer than 24 months (s 390SF(4)).

3.            The EPBC Act sets out the requirements that must be met before the Minister is able to make a final declaration (s 390SF). These are that:

     the commercial fishing activity is or has been subject to an interim declaration under s 390SD

     the Minister has sought and considered written submissions from declaration affected persons in relation to the commercial fishing activity

     the Minister and the Minister administering the Fisheries Management Act 1991 (FM Act) agree that:

       there is uncertainty about the environmental impacts of the commercial fishing activity;

       it is appropriate that an expert panel should be established to conduct an assessment of the commercial fishing activity and report on the matter; and

       it is appropriate that the commercial fishing activity be prohibited in a Commonwealth marine area while the expert panel conducts the assessment (section 390SF(2)(e)).

4.            The provisions mentioned above were added by the Environment Protection and Biodiversity Conservation Amendment (Declared Fishing Activities) Act 2012 (the amending Act).

5.            The Declaration provides that a commercial fishing activity which:

a)         is in the Small Pelagic Fishery;

b)         uses the mid-water trawl method; and

c)         uses a vessel which is greater than 130 metres in length, has an on-board fish processing facility and has storage capacity for fish or fish products in excess of 2000 tonnes,

is a declared commercial fishing activity for the purposes of Chapter 5B of the EPBC Act. During the period the Declaration is in force, the declared commercial fishing activity is prohibited.

Human rights implications

6.            Sections 390SA and 390SB prohibit declared commercial fishing activities and impose civil and criminal penalties, respectively. The Declaration does not create any new offences, impose any new penalties or vary any existing penalties. Rather, it specifies an activity to which the existing offence and civil penalty provisions in ss 390SA and 390SB apply.

7.            Strict liability applies to one physical element of the offence in s 390SB of the EPBC Act - that the action is taken in a Commonwealth marine area. This means that the prosecution does not need to prove a fault element, such as that defendants knew they were, intended to be, or were reckless as to whether they were, in a Commonwealth marine area when carrying out declared commercial fishing activities. The statement of compatibility for the Bill that became the amending Act addressed the question of whether this is consistent with art 14(2) of the International Covenant on Civil and Political Rights (ICCPR), which provides for the presumption of innocence. The issue was considered by the Parliamentary Joint Committee on Human Rights in its consideration of that Bill. The Declaration does not alter this aspect of s 390SB.

8.            In any case, as a practical matter, the issue of consistency with art 14(2) of the ICCPR will not arise in relation to prosecutions for an activity covered by the Declaration. It specifies certain fishing activity in the Small Pelagic Fishery, which is located in a defined area within the Australian Fishing Zone (AFZ). The waters of the AFZ, as defined in s 4 of the FM Act, are all within a Commonwealth marine area, as defined in s 24 of the EPBC Act. Therefore any activity in the Small Pelagic Fishery is also within a Commonwealth marine area. Strict liability does not apply to the physical element of the offence under s 390SB of the EPBC Act that the activity is a 'declared commercial fishing activity', and therefore does not apply to the requirement that the activity was carried out in the area of the Small Pelagic Fishery. The prosecution must prove intention, knowledge or recklessness in relation to the activity occurring within that Fishery, which will also be within a Commonwealth marine area.

9.            There is nothing in the nature or scope of the commercial fishing activity specified in the Declaration that engages human rights and freedoms. It applies only to commercial fishing activity that is engaged in by large vessels (greater than 130 metres) using a particular fishing method (mid-water trawl) and that was not engaged in within a Commonwealth marine area before 11 September 2012. Further, it will only apply to commercial fishing activity about which the Ministers agree there is uncertainty as to its environmental impacts.

10.          The Declaration does not, on its face, discriminate against a particular group on a prohibited ground. Neither will it have a disproportionate impact on persons of particular groups that would result in discrimination on a prohibited ground (e.g. race or national origin). It will not affect traditional fishing practices engaged in by Indigenous Australians, because the prohibition does not apply to activities engaged in before 11 September 2012 and also, most probably, because it applies only to commercial fishing from very large vessels(greater than 130 metres)  more than three nautical miles from the coast using particular trawling methods (mid-water trawl) . The Declaration therefore does not engage the right to enjoy and benefit from culture (art 27 of the ICCPR and art 15 of the International Covenant on Economic, Social and Cultural Rights).

11.          Accordingly, the Declaration does not engage any human rights.

 

Conclusion

12.          The Declaration is compatible with human rights as it does not raise any human rights issues.

Minister for Sustainability, Environment, Water, Population and Communities, the Hon Tony Burke MP

ATTACHMENT

Details of the Final (Small Pelagic Fishery) Declaration 2012

Section 1 – Name of declaration

This section provides that the title of the Declaration is the Final (Small Pelagic Fishery) Declaration 2012.

Section 2 – Interpretation

This section defines terms used in the Declaration.

‘mid-water trawl method’ is defined as a method of fishing which involves towing a net behind a boat or boats through the water at a depth below the ocean surface, but higher in the water column than the bottom of the ocean.

‘Small Pelagic Fishery’ is defined by reference to the definition of the fishery in the Small Pelagic Fishery Management Plan 2009.

‘Specified vessel’ is defined as a type of vessel which:

a)         is greater than 130 metres in total length (determined in accordance with section 10 of the Shipping Registration Act 1981 (Cth)); and

b)         has an on-board fish processing facility; and

c)         has storage capacity for fish or fish products in excess of 2,000 tonnes.

The note to this section draws the reader’s attention to the fact that expressions used in this declaration have the same meaning as in the EPBC Act.

Section 3 – Period for which this declaration is in force

This section provides that the Declaration is in force for the period from the end of the day on which the instrument is registered in the Federal Register of Legislative Instruments until the earliest of the following:

a)         the end of the day on which the report of the expert panel is published;

b)         the end of the period specified in the declaration, being midnight of 18 November 2014;

c)         the day a revocation of the declaration comes into force.

Subsection 390SF(4) of the EPBC Act provides the period specified in a final declaration can be no longer than 24 months.  As such, if the report of the expert panel is published on a day before the end of the specified period, then the declaration may end prior to the 24 month period.

Subsection 390SG(1) of the EPBC Act provides that the Minister may revoke a final declaration.

Section 4 – Declaration of commercial fishing activity

This section provides that a commercial fishing activity that:

a)         is in the Small Pelagic Fishery; and

b)         uses the mid-water trawl method; and

c)         uses a specified vessel,

is a declared commercial fishing activity. The declaration is made about the same declared fishing activity as specified in the interim declaration, which was made on the 20 September 2012. To be captured by this provision, all of the specified criteria in paragraph 4(1)(a) to (c) must apply to the commercial fishing activity.