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Fisheries Management Papers

Paper 2 - Monitoring and investigating reports of illegal fishing activity (March 1997)

Purpose
Introduction
AFMA's approach to fisheries compliance
The legislation
AFMA's compliance and monitoring section
AFMA management
Fisheries Officers
Monitoring and reporting on activities
Investigating reports of illegal activity
Protection available to fisheries
Summary

1. Purpose

This Fisheries Management Paper sets out AFMA's policy and procedures (as determined by the AFMA Board) for monitoring and investigating illegal fishing activity with particular emphasis on the role of the AFMA Compliance and Monitoring Section, AFMA management and Fisheries Officers in this process.

2. Introduction

AFMA has no direct surveillance and enforcement capacity and, as a result, activities relating to surveillance of Australian and foreign fishers operating in Commonwealth waters is carried out by State-based Fisheries Officers under agency arrangements with the Commonwealth which has conferred the necessary powers to them under the relevant fisheries legislation. AFMA retains an overall responsibility for developing Commonwealth fisheries law enforcement policies, co-ordinating compliance programs and the activities of the State-based fisheries officers and setting compliance strategic directions.

3. AFMA's approach to fisheries compliance

AFMA recognises that the majority of fishers comply with management arrangements, however, it is acknowledged that there are those who do not and, in view of this, AFMA considers that compliance is an essential component of fisheries management. Accordingly, AFMA seeks to ensure that fisheries management arrangements are supported by a clear and unambiguous approach to monitoring day-to-day operations and to following up and investigating reports of non-compliance. To assist this process, AFMA will take the necessary steps to ensure that fishers are aware of, and understand, the relevant rules and regulations.

4. The legislation

Fisheries monitoring and enforcement activities are undertaken under the authority of the Fisheries Management Act 1991 and, in some circumstances, the Crimes Act 1914. Fisheries-related investigations may be conducted under the Crimes Act 1914 when criminal activities are considered serious and, in particular, where action under the fisheries legislation is either inappropriate or not sufficient compared to the severity of the alleged criminal conduct.

5. AFMA's monitoring and compliance section

5.1 The role of the section

AFMA Compliance and Monitoring Section staff are assigned to surveillance, compliance, investigations and monitoring tasks. In order to undertake these tasks staff receive training in AFMA's administrative processes and the relevant legislation under which they exercise their responsibilities.

In exercising their responsibilities, AFMA Compliance and Monitoring Section staff have regard to the six fundamental areas of education, awareness, detection, analysis, investigation and prosecution. In accordance with these, AFMA Compliance and Monitoring Section staff are required to:

in consultation with State-based Fisheries Officers, assist fisheries managers with the development of fisheries management programs by providing practical advice and input;
liaise closely with State-based Fisheries Officers;
ensure that Fisheries Officers are provided with appropriate information produced by AFMA on fisheries management matters;
plan and co-ordinate fisheries surveillance programs to ensure that AFMA is achieving the best value for money;
monitor the landings of fish;
initiate and co-ordinate investigations into breaches against the fisheries legislation;
oversight the performance of State fisheries agencies in undertaking surveillance tasks on AFMA's behalf and report on outcomes;
monitor the performance of State-based Fisheries Officers;
provide intelligence, advice and assistance to State-based Fisheries Officers;
conduct training and education programs for State-based Fisheries Officers;
as part of a risk management program, conduct compliance risk assessments for major Commonwealth-managed fisheries;
maintain and manage information holdings to assist compliance and monitoring functions;
assist with the development of 'operational plans' for each Commonwealth-managed fishery;
provide a 24 hour contact on operational matters; and
assist in the enforcement process.

AFMA Compliance and Monitoring Section staff also provide an important link between the activities in the ports, the Fisheries Officers and the administrations within State fisheries agencies. They are well placed to provide the overall direction and co-ordination of the AFMA surveillance and enforcement effort and are also in a position to ensure that AFMA compliance policies and practices are recognised and acted on by Fisheries Officers.

6. AFMA management

6.1 The role of fisheries managers

Compliance is an essential component of fisheries management and, as such, fisheries managers within AFMA have an important role to play in monitoring and investigations.

6.2 Information concerning illegal activity and legislative breaches

Fisheries managers deal first hand with fishers on a daily basis and are often privy to intelligence about a fishery and those who fish in it. In the interests of the fishery, managers have a duty to pass on reports of illegal activity and legislative breaches, whether internal or external in nature, to AFMA Compliance and Monitoring Section staff who are in turn obliged to investigate such reports. Information sharing of this type allows a diversity of information to be brought to the decision-making process, thus enhancing management and operational capabilities. Reciprocity and a team approach is a natural deterrent to fraud and non-compliance.

6.3 Documentation

Where possible, fisheries managers and staff should ensure that they obtain originals of all documentation provided by fishers and/or the general public. These original documents must be kept on appropriate AFMA files. Fisheries managers who have any doubts about the authenticity or veracity of documentation received or obtained by AFMA are required by law (under the Crimes Act 1914, Public Service Act 1922 and the Fisheries Management Act 1991) to disclose such concerns to AFMA's Compliance and Monitoring staff. Further information on ethical behaviour and the risks of fraud is contained in AFMA's Fraud Control Plan.

7. Fisheries Officers

7.1 Appointment of Officers

Under section 83 of the Fisheries Management Act 1991, AFMA may, by instrument, appoint:

an officer or employee of AFMA or the Commonwealth, of the Administration of a Territory (other than a Territory mentioned in paragraph (b)) or of an authority of the Commonwealth; or
an officer or employee of a State, the Northern Territory or the Australian Capital Territory, or of an authority of a State or one of those Territories, in relation to whom there is in force an arrangement between the Commonwealth and the State or Territory, as the case may be;

to be a Fisheries Officer for the purposes of the Act.

In addition, a member or special member of the Australian Federal Police or a member of the police force of a State or Territory or a member of the Defence Force is also considered to be a Fisheries Officer for the purposes of the Act.

Not all State-based Fisheries Officers are Fisheries Officers under Commonwealth legislation, however, AFMA requires those that are to undergo comprehensive training to ensure that they are able to exercise the powers available to them in a consistent and proper manner. They are also required to become familiar with all relevant legislation.

7.2 Powers of Officers

Section 84 of the Fisheries Management Act 1991 sets out the powers of Fisheries Officers.

7.3 The Role of the Fisheries Officer

The Fisheries Officer has a number of roles, each of which vary in importance and emphasis according to the fishery concerned. However, as a general rule, the Fisheries Officer provides a link between AFMA, the industry and the State fisheries agencies. They serve as a focus for industry in the ports and, like AFMA Compliance and Monitoring Section staff, they play an integral role in the development and implementation of fisheries management arrangements. They are part of the fisheries management process.

The main responsibilities of the Fisheries Officers are to:

provide an education and extension service for AFMA;
in conjunction with AFMA, ensure authorised fishers are aware of relevant fisheries management rules and regulations;
promote constructive comment by industry on the fisheries management arrangements;
advise AFMA of industry concerns;
monitor the operations of authorised fishers;
gather information and data on the operations of the fleet;
initiate follow up reports of illegal activity;
recommend prosecution action;
investigate and prepare briefs for prosecution;
report to AFMA on the outcomes of legal proceedings; and
recommend improvements to management arrangements following prosecution action.

To summarise, Fisheries Officers assist and monitor the operations of the fishing fleet and perform policing functions where necessary. They are required to act firmly and impartially when investigating reports of illegal activity and they work closely with AFMA on these matters.

8 Monitoring and reporting on activities

Under arrangements between AFMA and the State fisheries agencies, each agency is required to submit a monthly report to AFMA detailing the tasks which have been undertaken for that month, including details of the number of boat inspections, at-sea boardings and surveillance flights as well as other matters requiring follow up by AFMA. Agencies are also encouraged to provide comments on existing arrangements, suggestions for change and other information critical to the planning of surveillance programs. Information obtained from the reports is used by both fisheries managers and AFMA Compliance and Monitoring Section staff in the performance of their duties.

9. Investigating reports of illegal activity

There are several stages involved in investigating a reported breach of fisheries legislation, as follows:

9.1 Gathering information

A certain percentage of a Fisheries Officer's effort is spent in routine patrols and inspections during which liaison may gather intelligence on fishing and marketing activities. This information will usually be gathered over a period of time and may result in a number of conclusions being drawn and/or suggestions being made by the Fisheries Officer concerning illegal activities in a particular fishery. When illegal activities are suspected the Fisheries Officer is required to consult with AFMA Compliance and Monitoring Section staff in determining whether sufficient information has been gathered to initiate a specific operation or to commit funds to a surveillance task.

Some cases require surveillance of premises or activities. Such surveillance activity can take the form of following vehicles or trucks carrying fish product, observing premises, unloading fish products as well as aerial surveillance of areas within which it is suspected illegal activity is being conducted. If required, the legislation provides the necessary authority for a Fisheries Officer to board a vessel.

9.2 Follow up of specific (third party) reports suggesting illegal activity

When illegal activity is reported by a third party, the Fisheries Officer is required to contact AFMA Compliance and Monitoring Section staff so that appropriate surveillance strategies can be developed to address the situation. AFMA is required to ensure that the scale of the operation can be accommodated within the compliance budget for the fishery concerned and that action can be implemented without the risk of interfering with, or jeopardising, other operations already in progress.

Follow up action, and the consequent commitment of surveillance funds, is dependent on the evidence providing 'reasonable grounds' to believe an offence has taken place or is about to take place.

The test of 'reasonableness' can be complex and is dependent on:

the Fisheries Officer's assessment of all the material facts;
the existence of admissible evidence suggesting an offence; and
the need to satisfy the requirement that, on the evidence available, a reasonable person would be satisfied that the information leads to the conclusions deduced by the Fisheries Officer.

Although the Fisheries Officer does not have to weigh up the circumstances in the same way that a legal counsel may be required to, he/she is required to be able to demonstrate that he/she has drawn reasonable conclusions in the circumstances. In general, such conclusions are relatively straight forward in the fisheries context.

9.3 Interviewing

Once sufficient information is gathered to suggest a prima facie case exists, and following consultation with AFMA, the Fisheries Officer is obliged to interview the alleged offender in accordance with standard procedures.

Under the fisheries legislation and Crimes Act 1914, suspects are not required to answer any questions put to them by Fisheries Officers. However, if the Officer wishes to use any information obtained from an interview he/she must follow the interview procedures contained under Part 1 C of the Crimes Act 1914. These procedures require that the interview be taped, that the interviewee be offered the opportunity to contact a solicitor and that the interviewee may not be forced to answer any questions.

Following the interview process, the Fisheries Officer is required to prepare a brief of evidence on the case. The Fisheries Officer concerned is also responsible for deciding what premises should be searched and what additional information is required to complete the brief of evidence, however, such a decision must only be implemented following consultation with, and the agreement of, AFMA Compliance and Monitoring Section staff.

9.4 Seizure

In some cases it is necessary to consider seizing the fishing vessel catch and/or gear. The decision to seize the vessel must only be made if the Officer has reasonable grounds to believe that the vessel has been used, is being used or is intended to be used in contravention of the fisheries Acts. Although the Fisheries Officer is ultimately responsible for deciding whether to seize the vessel, such a decision must be made in consultation with AFMA Compliance and Monitoring Section staff and, where possible, with an officer of the Director of Public Prosecutions Office (DPP).

It is recognised that, in some cases, since evidence can be altered or disposed of, it will be necessary to take immediate search and seizure action. Other cases may not require further searches and seizure for some time after the alleged offence has been committed. Prior to entering any premises the Fisheries Officer is required to meet formal obligations under the fisheries legislation which may require that either the owner or occupier's permission or a search warrant is obtained.

The predominant factors to be taken into consideration by the investigating Officer, AFMA and DPP in deciding whether to seize a vessel and/or fishing gear and fish product are:

the severity of the offence;
whether, on the evidence available, it is likely the offence will be committed again without regard to the fisheries management requirements;
the need to obtain material for evidentiary purposes; and
whether a successful conviction may lead to forfeiture of the vessel, gear or fish product.

Following the seizure of any item the investigating Officer must, within seven days, provide a notice to the owner explaining the reasons why seizure was made.

9.5 Maintaining seized goods

Once a vessel is seized, the Fisheries Officer on the scene, or others under contract to AFMA, must carry out an inventory of the vessel. The vessel should then be taken to a secure area. In some cases a 24 hour guard, whose duty it is to maintain and safeguard the vessel, will be placed on board the seized vessel.

The Fisheries Officer is required to prepare a brief outlining the circumstances surrounding the vessel seizure and forward it to AFMA.

9.6 Warrants

Warrants for searching premises, or in some circumstances vehicles, are issued by a magistrate under the Fisheries Management Act 1991. A warrant for investigations regarding fisheries matters may also be issued by a Justice of the Peace under section 10 of the Crimes Act 1914. If the owner of the premises objects to the search and seizure, he or she may legally challenge the issuance of the warrants by seeking an injunction to interrupt or stop the search.

Should a search be required, the Fisheries Officer and an officer of DPP, in consultation with AFMA Compliance and Monitoring Section staff, should determine which premises/vehicles are to be searched. The parties should also determine what documents, computer discs or other items will need to be seized during the search.

Once the documents or other items that may afford evidence of an offence are seized, the Fisheries Officer is required to identify and catalogue the evidence in what is known as a 'brief of evidence'. All information obtained during the search should be included in the brief of evidence. Continuity of evidence is critical for the success of any subsequent prosecution. The Fisheries Officer is also responsible for making copies of the seized items for return to the owner if it is necessary for the owner to have copies of the items in order to carry out his or her business.

Following the seizure of any item the investigating Officer must, within seven days, provide a notice to the owner explaining the reasons why seizure was made.

9.7 Release of seized property

After the vessel catch and/or gear has been seized, the owner may apply to AFMA to seek release of the seized property. The power to release seized property has been delegated by AFMA to the following AFMA staff:

the Managing Director;
General Manager, Operations;
Manager, Compliance and Monitoring Section; and
the Compliance Programs Manager.

Established practice has been to release the property on the condition that security in the form of a bank guarantee is provided by the owner of the seized property. Negotiation with the owner concerning the level of the bond is undertaken by the Australian Government Solicitors (AGS) Office. Pursuant to section 88 of the Fisheries Management Act 1991, the amount of a bank guarantee or bond can be calculated based on the value of the seized property and the payment of any fines that may be imposed under the Act.

To determine the value of the seized property the Fisheries Officer is required to contract with a marine surveyor to give a valuation survey of the vessel and fishing gear on board. The owner then has the opportunity to negotiate with the Attorney-General's Department on the amount of the bond or any other condition of release of the seized property.

9.8 DPP brief

Once the full investigation is completed, and after consultation with AFMA, the Fisheries Officer is required to submit the brief of evidence to the DPP. Following submission of the brief, the decision to proceed with a case or not rests with the DPP. In making such a decision, the DPP is required to review the brief and may request further information from the Fisheries Officer. If the DPP considers that there is sufficient evidence, and a prosecution is warranted in all the circumstances, summonses are prepared.

To assist in briefing the court, the fishery manager may be required to prepare a statement regarding the fishery in which the offence was alleged to have taken place, including the management regime in place, background information, status of the stocks etc.

9.9 Court outcome

Upon conviction, a court may order forfeiture of either a vessel or gear used in the commission of an offence or of fish or proceeds from the sale of any relevant fish.

Forfeited property becomes the property of the Commonwealth and is disposed of in accordance with the directions of the Minister. The Minister has delegated the authority to dispose of forfeited property to senior officers within AFMA who do so in accordance with AFMA policy (refer Fisheries Management Paper No. 3).

The Fisheries Officer is required to ensure that the court outcome and any summaries of evidence are forwarded to the AFMA Compliance and Monitoring Section. This information provides data relevant to future management arrangements, including valuable precedent and, possibly, case law.

10. Protection available to fishers

There are customary standards for investigating offences and it is incumbent on Fisheries Officers to ensure that they are both aware of, and abide by, these standards. Such standards are developed for common law or can be found in the statutes and include privacy and judiciary Acts, rules of evidence etc, some of which are reflected in fisheries legislation. These standards provide protection for Fisheries Officers and fishers alike.

In brief, such standards are found in:

the test of 'reasonableness';
the limited extent of Fisheries Officers' powers;
the search and warrant procedures;
the need to be properly authorised (and trained);
the codes governing the admissibility of evidence;
the requirements governing the collection of evidence, including interview and recording procedures;
DPP prosecutions policy;
the court process itself; and
the appeal provisions available to those who are unreasonably or unfairly treated.

During the course of an investigation fishers are, like any member of the community, protected against unreasonable demands.

AFMA is also obliged to ensure that:

opportunity is provided for fishers to explain the circumstances under investigation;
fishers are assisted by legal representation where ever necessary; and
fishers are aware of their appeal rights.

11. Summary

The success of the arrangements for investigating and following up fisheries breaches is dependent on close working relationships being maintained between AFMA and the State fisheries agencies.

The AFMA Compliance and Monitoring Section plays a key role in maintaining the necessary links between AFMA and the State fisheries agencies. In meeting its responsibilities to ensure that Fisheries Officers have all relevant information, the Section maintains constant contact with the States and also ensures that, where possible, Fisheries Officers participate in consultations with industry. On the other hand, AFMA recognises the importance of taking the practical, 'hands on' expertise of the field Officers into account when making decisions in relation to fisheries compliance matters.

Importantly, decisions to investigate and to take action against fishers need to be based on close co-operation and joint understandings reached by AFMA and the State fisheries agencies, having regard to the rights of those fishers.

Page last updated 20 July, 2005