Fisheries Management Amendment Regulations 2005 (No. 3)1

Select Legislative Instrument 2005 No. 294

I, PHILIP MICHAEL JEFFERY, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Fisheries Management Act 1991.

Dated 15 December 2005

P. M. JEFFERY

Governor-General

By His Excellency’s Command

IAN MACDONALD

Minister for Fisheries, Forestry and Conservation

1 Name of Regulations

  These Regulations are the Fisheries Management Amendment Regulations 2005 (No. 3).

2 Commencement

  These Regulations commence on the day of registration.

3 Amendment of Fisheries Management Regulations 1992

  Schedule 1 amends the Fisheries Management Regulations 1992.

Schedule 1 Amendment

(regulation 3)

[1] After Part 5

insert

Part 5A Detention of suspected illegal foreign fishers etc

Division 1 Training for officers

19A Training for officers and detention officers

  For subclause 6 (1) of Schedule 1A to the Act, the minimum training is the course of training provided by AFMA known as Authorised Officer Training, which provides training on the following matters:

 (a) conducting searches;

 (b) maintaining the health, safety and welfare of detainees;

 (c) controlling persons by the use of empty-hand techniques;

 (d) the use of authorised officers’ powers under the Fisheries Management Act 1991 and the Torres Strait Fisheries Act 1984.

Division 2 Identifying detainees

19B Personal identifiers

  For paragraph 26 (1) (g) of Schedule 1A to the Act, the personal identifiers are as follows:

 (a) a sample of a person’s handwriting;

 (b) a photograph of a tattoo, scar or other identifying mark of a person, if the obtaining of the photograph does not involve:

 (i)  the removal of any of the person’s clothing; or

 (ii) the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914.

Note   Subsection 23WA (1) of the Crimes Act 1914 provides that intimate forensic procedure means any of the following forensic procedures:

(a) an external examination of the genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts;

(b) the taking of a sample of blood;

(c) the taking of a sample of saliva, or a sample by buccal swab;

(d) the taking of a sample of pubic hair;

(e) the taking of a sample by swab or washing from the external genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts;

(f) the taking of a sample by vacuum suction, by scraping or by lifting by tape from the external genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts;

(g) the taking of a dental impression;

(h) the taking of a photograph or video recording of, or an impression or cast of a wound from, the genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts.

19C Personal identifiers detainees must provide

  For paragraph 28 (2) (e) of Schedule 1A to the Act, the types of personal identifier are as follows:

 (a) an audio or a video recording of the detainee (other than a video recording under clause 37 of Schedule 1A to the Act);

 (b) an iris scan of the detainee’s eyes;

 (c) a sample of the detainee’s handwriting;

 (d) a photograph of a tattoo, scar or other identifying mark of the detainee, if the obtaining of the photograph does not involve:

 (i) the removal of any of the detainee’s clothing; or

 (ii) the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914.

Note   See the note after regulation 19B for the meaning of intimate forensic procedure for section 23WA of the Crimes Act 1914.

19D Personal identifiers officers must require non‑citizens to provide by way of identification tests

  For paragraph 29 (1) (a) of Schedule 1A to the Act, the types of personal identifier are as follows:

 (a) fingerprints or handprints of the non-citizen (including those taken using paper and ink or digital livescanning technologies);

 (b) a measurement of the non-citizen’s height and weight;

 (c) a photograph or other image of the non-citizen’s face and shoulders;

 (d)  an audio or a video recording of the non-citizen (other than a video recording under clause 37 of Schedule 1A to the Act);

 (e) an iris scan of the non-citizen’s eyes;

 (f) the non-citizen’s signature;

 (g) a sample of the non-citizen’s handwriting;

 (h) a photograph of a tattoo, scar or other identifying mark of the non-citizen, if the obtaining of the photograph does not involve:

 (i) the removal of any of the non-citizen’s clothing; or

 (ii) the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914.

Note   See the note after regulation 19B for the meaning of intimate forensic procedure for section 23WA of the Crimes Act 1914.

19E Information to be provided before carrying out identification tests

 (1) For paragraph 30 (1) (b) of Schedule 1A of the Act, the matters about which the authorised officer must inform the non-citizen before carrying out an identification test are:

 (a) the reason why a personal identifier is required to be provided; and

 (b) how a personal identifier may be collected; and

 (c) how any personal identifier that is collected may be used; and

 (d) if the non-citizen is a minor or an incapable person — how a personal identifier is to be obtained from a minor or incapable person.

Note   See Division 3 of Part 5 of Schedule 1A to the Act in relation to the identification of minors and incapable persons.

 (2) Also, the authorised officer must inform the non-citizen:

 (a) that a personal identifier may be produced in evidence in a court or tribunal in relation to the non-citizen who provided the personal identifier; and

 (b) that the Privacy Act 1988 applies to personal information, including personal identifiers, and that the non-citizen has a right to make a complaint to the Privacy Commissioner about the handling of the non-citizen’s personal information; and

 (c) that:

 (i) the Freedom of Information Act 1982 gives a person access to certain information and documents in the possession of the Government of the Commonwealth and of its agencies; and

 (ii) the non-citizen has a right, under that Act, to seek:

 (A) access to that information or those documents; and

 (B) amendment of records containing personal information that is incomplete, incorrect, out of date or misleading.

 (3) For subclause 30 (3) of Schedule 1A of the Act, if a form is to be given to a non-citizen setting out any information mentioned in subregulation (1) or (2), it must be given to the non-citizen at a time that gives the non-citizen enough time to read and understand the form before the identification test is conducted.

19F Authorising access to video recordings — limitations

  For subclause 41 (3) of Schedule 1A to the Act, the types of personal identifier are as follows:

 (a) fingerprints or handprints of a non-citizen (including those taken using paper and ink or digital livescanning technologies);

 (b) a measurement of a non-citizen’s height and weight;

 (c) a photograph or other image of a non-citizen’s face and shoulders;

 (d) an audio or a video recording of a non-citizen (other than a video recording under clause 37 of Schedule 1A to the Act);

 (e) an iris scan of a non-citizen’s eyes;

 (f) a non-citizen’s signature;

 (g) a sample of a non-citizen’s handwriting;

 (h) a photograph of a tattoo, scar or other identifying mark of a non-citizen.

19G Providing video recordings — permitted provision

 (1) This regulation applies for paragraph 42 (2) (f) of Schedule 1A to the Act.

 (2) The provision of a video recording to the Human Rights and Equal Opportunity Commission is a permitted provision of the recording if the provision is for the purpose of the Commission inquiring into the operation of provisions of the Act relating to carrying out an identification test.

19H Providing video recordings — limitations

  For paragraph 42 (3) (a) of Schedule 1A to the Act, the types of personal identifier are as follows:

 (a) fingerprints or handprints of a non-citizen (including those taken using paper and ink or digital livescanning technologies);

 (b) a measurement of a non-citizen’s height and weight;

 (c) a photograph or other image of a non-citizen’s face and shoulders;

 (d) an audio or a video recording of a non-citizen (other than a video recording under clause 37 of Schedule 1A to the Act);

 (e) an iris scan of a non-citizen’s eyes;

 (f) a non-citizen’s signature;

 (g) a sample of a non-citizen’s handwriting;

 (h) a photograph of a tattoo, scar or other identifying mark of a non-citizen.

Division 3 Disclosure of identifying information

19I Authorising access to identifying information

  For subclause 52 (3) of Schedule 1A to the Act, the types of personal identifier are as follows:

 (a) fingerprints or handprints of a non-citizen (including those taken using paper and ink or digital livescanning technologies);

 (b) a measurement of a non-citizen’s height and weight;

 (c) a photograph or other image of a non-citizen’s face and shoulders;

 (d) an audio or a video recording of a non-citizen (other than a video recording under clause 37 of Schedule 1A to the Act);

 (e) an iris scan of a non-citizen’s eyes;

 (f) a non-citizen’s signature;

 (g) a sample of a non-citizen’s handwriting;

 (h) a photograph of a tattoo, scar or other identifying mark of a non-citizen.

19J Authorising disclosure of identifying information

  For subclause 54 (1) of Schedule 1A to the Act, AFMA may authorise the following Agencies to disclose identifying information under that subclause:

 (a) the Department of Foreign Affairs and Trade;

 (b) the Australian Customs Service.

19K Disclosure of identifying information to Australian bodies

  For paragraph 54 (1) (d) of Schedule 1A to the Act, AFMA may authorise the disclosure of identifying information under subclause 54 (1) of that Schedule to any of the bodies mentioned in the following table:

19L Disclosure of identifying information to international organisations

  For paragraph 54 (1) (e) of Schedule 1A to the Act, AFMA may authorise the disclosure of identifying information under clause 54 of that Schedule to any of the following organisations:

 (a) Interpol;

 (b) the United Nations;

 (c) any of the Intergovernmental Organisations known as Regional Fisheries Bodies mentioned in the following table:

Division 4 Disclosures relating to illegal fishing activities

19M Authorising disclosure of information relating to illegal fishing activities

  For subsection 108B (1) of the Act, the Minister may authorise the following Agencies to disclose information under that subsection:

 (a) the Department of Foreign Affairs and Trade;

 (b) the Australian Customs Service.

1. All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See www.frli.gov.au.