Fisheries Management Papers

Paper 9 - Considerations applied where an offence is believed to have been committed (February 1999)

Contents

1. Purpose
2. Introduction
3. Definitions
4. AFMA's approach
5. Criteria for determining a particular course of action
6. Considering applications
7. Protection available to fishers
8. Attachment A - Determining the seriousness of an offence

1. Purpose

This Fisheries Management Paper sets out the criteria that will be applied by AFMA in considering whether to:

1. refuse to transfer fishing concessions or quota;
2. refuse to grant a fishing concession or fish receiver permit (FRP); or
3. suspend or cancel a fishing concession, FRP or quota

in circumstances where a person is being investigated, or charges have been laid, under the Fisheries Management Act 1991 (the Management Act) and where quota over-catches have not been covered. The provisions of this paper also apply to any person (including company directors) making application for any of the transactions covered herein where it can be clearly established that the applicant/s are involved with any other entity under investigation for fisheries related offences. This paper should be read in conjunction with the Management Act.

2. Introduction

The Management Act provides AFMA with the discretion to grant, transfer, suspend or cancel fishing concessions and to grant, suspend or cancel FRPs. However, AFMA's supporting legislation, regulations and objectives provide no specific guidance in relation to the application of this discretion in circumstances where an offence is believed to have been committed under the Management Act. In such circumstances, AFMA may contemplate taking action, where appropriate, to suspend or cancel or to refuse to grant or transfer a fishing concession, FRP or quota as applicable. This Fisheries Management Paper has been developed to establish a clear and consistent policy in relation to when, and in what circumstances, AFMA will consider taking each or any of these steps and what criteria AFMA will apply to its consideration of a particular course of action.

3. Definitions

For the purposes of this Fisheries Management Paper:

4. AFMA's approach

4.1 Background

AFMA's approach to this issue stems from the AFMA Board's determination, in May 1994, that there could be cases where it may be necessary to refuse to grant permanent transfers of quota where an operator is being investigated or where charges had been laid for more serious fisheries related offences.

At the time, the application of the Board decision was narrow and did not extend to all Commonwealth fisheries or to fishing concessions. Although AFMA recognises that the majority of fishers comply with management arrangements, there are those who do not and, in view of this, AFMA considers that a consistent approach should be applied across all Commonwealth fisheries in recognising that there may be cases where it is necessary to withhold the permanent transfer of quota and/or fishing concessions.

In addition to withholding the permanent transfer of quota and/or fishing concessions, and depending on the seriousness of the offence and relevant surrounding circumstances, it may be appropriate for AFMA to refuse to grant a fishing concession or FRP or to suspend or cancel a fishing concession, FRP or quota.

4.2 The legislation

The Management Act sets out the circumstances in which AFMA may grant, transfer, suspend or cancel a fishing concession and grant, suspend or cancel a FRP. None of these sections covers quota holdings that are not Statutory Fishing Rights.

4.2.1 Granting a Statutory Fishing Right

Pursuant to section 31 of the Management Act, upon the request of a person to whom the grant of a fishing right is available, AFMA must grant the fishing right to that person. Statutory Fishing Rights (SFRs) can only be granted to a person who satisfies the criteria for the grant of SFRs as specified in a management plan.

4.2.2 Granting a Fishing Permit

Pursuant to section 32 of the Management Act, AFMA may, upon application made in the approved form, grant to a person a Fishing Permit authorising the use of a specified Australian boat by that person, or by a person acting on that person's behalf, for fishing in a specified area of the Australian Fishing Zone (AFZ) or a specified fishery. AFMA will only grant Fishing Permits in accordance with policies approved by the AFMA Board.

4.2.3 Transferring a Statutory Fishing Right

Under section 49 of the Management Act, a person must not transfer ownership of a Statutory Fishing Right unless AFMA has given approval in writing. However, AFMA can only refuse to give approval if the transfer would be contrary to the requirements of the relevant plan of management or a condition of the Statutory Fishing Right.

4.2.4 Transferring a Fishing Permit

Pursuant to section 32 of the Management Act, except where a Fishing Permit is stated to be non-transferable, AFMA may, on the application of the holder of the Permit and of another person as proposed transferee, transfer the Permit to that other person.

4.2.5 Suspending a fishing concession

Pursuant to section 38 of the Management Act, AFMA may suspend the operation of a fishing concession if:

1. any fee, levy, charge or any other money relating to the concession is not paid as it becomes due (this matter is dealt with in AFMA's Fisheries Management Paper No. 6);
2. it has reasonable grounds to believe that there has been a contravention of a condition of the concession or, in an application under the Management Act, the concession holder made a statement or furnished information that was, to the holder's knowledge, false or misleading in a material particular;
3. to do so would be in accordance with a condition of the fishing concession relating to suspension or cancellation; or
4. the holder is convicted of an offence against the Management Act, the regulations or any other law of the Commonwealth relating to fishing or against a law of New Zealand, Papua New Guinea or a State or Territory relating to fishing.

Except where the concession holder has been convicted of an offence, the suspension, unless it is sooner revoked, ceases at the conclusion of criminal proceedings instituted against a person acting on behalf of the holder or against the holder themselves, or, in any other case, at the end of one month after the commencement of the suspension period.

Section 38 also applies to a FRP as if it were a fishing concession for the purposes of suspension.

4.2.6 Cancelling a fishing concession

Under section 39 of the Management Act, AFMA may cancel the operation of a fishing concession if:

1. the holder of the concession is convicted of an offence referred to in section 39, including an offence against the Management Act;
2. to do so would be in accordance with a condition of the fishing concession relating to suspension or cancellation; or
3. any fee, levy, charge or any other money relating to the concession is not paid or the holder does not enter into arrangements satisfactory to AFMA in relation to the money within 21 days after the fee, levy, charge or other money became due (this matter is dealt with in AFMA's Fisheries Management Paper No. 6).

Section 39 also applies to a FRP as if it were a fishing concession for the purposes of cancellation.

4.2.7 Granting a Fish Receiver Permit (FRP)

Pursuant to section 91 of the Management Act, AFMA may, upon application made in the approved form, grant to a person a FRP authorising the person to receive fish from a person engaged in commercial fishing in a specified fishery declared under subsection 91(1).

4.3 Power of the courts

In relation to offences committed on or after 8 July 1997 (the day on which the relevant amendments to the Management Act came into effect), a further relevant consideration is that, for certain offences, subsection 98(3) of the Management Act now provides that a court may, in addition to imposing a penalty in respect of an offence committed while a person was doing something authorised by a fishing concession, make an order cancelling the fishing concession or suspending the operation of the concession for a specified period. In the case of such offences, AFMA's powers under sections 38 and 39 remain unaffected, although different considerations may apply in light of the power of the courts to suspend or cancel fishing concessions.

As with sections 38 and 39, section 98 does not refer to quota that is not a Statutory Fishing Right.

5 Criteria for determining a particular course of action

Any fishing concession obtained through lease or transfer, regardless of to what fishery that concession relates, may be subject to the provisions of this paper in relation to refusal to transfer, suspension or cancellation.

5.1 Refusing an application to grant a fishing concession or Fish Receiver Permit

In deciding whether to refuse an application to grant a fishing concession or FRP, AFMA will take into account the following considerations:

1. whether a fishing concession has been suspended. AFMA will not grant a fishing concession to replace one that is suspended under section 38 except in the case of a Fishing Permit which expires during the period of suspension (see section 5.3.1 below).
2. whether a FRP has been suspended. AFMA will not grant a FRP to the holder of a suspended FRP or to any entity controlled by, or associated with, the holder during the period of the suspension.
3. whether a fishing concession has been cancelled. AFMA will not grant a fishing concession to replace one that has been cancelled under section 39.
4. 4whether a FRP has been cancelled. AFMA will not grant a FRP to the holder of a cancelled FRP or to any entity controlled by, or associated with, the holder.

5.2 Refusing an application to transfer a fishing concession or quota

In deciding whether to refuse an application to transfer a fishing concession or an application to permanently transfer quota, AFMA will take into account the following considerations:

1. whether charges have been laid;
2. in cases where an investigation is under way and charges have not been laid, the likelihood of charges being laid
1. advice on this can be sought from the Investigating Officer and the Director of Public Prosecutions;
3. the seriousness of the offence/s involved (see Attachment A)
4. the record of the offender as it relates to fisheries related offences (whether State, Commonwealth or international).
5. whether the offence goes to the heart of, and threatens the integrity of, management arrangements in a fishery;
6. the magnitude of the offence (eg in terms of financial gain); and
7. whether the offence involved an element of conspiracy to subvert the fisheries management system (for example that there was a clear intention to gain by the action); and
8. 8whether or not the fishing concession or FRP involved is the particular concession or FPR under which the offender or their representatives were fishing or receiving fish at the time of the alleged offence.
9. whether there has been an overcatch of quota that has not been fully covered which AFMA would require to be reconciled.

Applications to transfer quota on a seasonal basis only will ordinarily be processed.

5.3 Suspending a fishing concession, Fish Receiver Permit or quota

Suspension of the operation of a fishing concession or FRP will deny the concession holder the opportunity to utilise the concession to conduct commercial fishing operations or to receive fish. Suspension of quota will deny the quota holder the opportunity to catch, or to arrange for another person to catch, that quota. Suspension thus has more serious consequences for the concession/FRP/quota holder than would refusal to transfer a fishing concession, FRP or quota.

AFMA may decide to suspend prior to or following conviction. Similar considerations apply in both circumstances.

In deciding whether or not to suspend a fishing concession, FRP or quota, AFMA will take into account the following considerations:

1. whether charges are to be laid in the near future. If it is unlikely that charges will be laid within one month of the suspension, action will not ordinarily be taken
1. advice on this can be sought from the Investigating Officer and the Director of Public Prosecutions;
2. whether the alleged offence may be continuing. If the Investigating Officer is of the view that the alleged offence, or further similar offences, are continuing to occur, then serious consideration will be given to suspending the relevant concession, FRP or quota. On the other hand, if the Investigating Officer is of the view that the alleged offence was an isolated incident, and a similar incident is not considered likely to re-occur, suspension will not ordinarily be considered; and
3. matters referred to in Section 5.2 above.
4. whether there has been an overcatch of quota that has not been fully covered which AFMA would require to be reconciled.

Section 38 of the Management Act contemplates AFMA deciding to suspend a fishing concession for a particular period following the conviction of a concession holder or a person acting on the concession holder's behalf for an offence against the Management Act or certain other offences. In respect of offences where the court has no power to suspend a fishing concession (ie offences committed prior to 8 July 1997) AFMA will review the matter following a conviction to determine whether suspension would be appropriate. In so doing, AFMA will take into account any relevant comments by the court, the severity of the penalty imposed, as well as the seriousness of the offence. Such consideration will take into account the matters referred to in Section 5.2 above in relation to refusal to transfer a fishing concession or quota.

For offences committed on or after 8 July 1997, AFMA will make submissions to the court on sentencing where it believes that a fishing concession or FRP should be suspended. If the court considers these submissions and decides not to suspend then AFMA will not consider suspending the fishing concession or FRP unless the court indicates that it believed AFMA may wish to consider such action. The courts do not have the power to suspend quota that is not a Statutory Fishing Right.

In instances where operators have over-caught in regard to their quota entitlements AFMA reserves the right to amend a quota holder's entitlements, in the current or subsequent years, for any overcatches not reconciled or discovered following conviction or where AFMA believe that catches were misreported.

5.3.1 Suspending an expiring Fishing Permit

Where a decision is made to suspend a Fishing Permit for a period of time which ends after the expiry date of the Fishing Permit, the holder of the expiring Fishing Permit will be invited to apply for a new Fishing Permit on expiry of the suspended Permit. The new Fishing Permit will then be suspended until the period of the suspension expires. Fishing Permit holders should note that, in accordance with paragraphs 4 and 5 of Fisheries Policy Paper No. 5 - AFMA Licensing Policy of October 1995:

"an operator who is the holder of a Fishing Permit ... will not be granted a Fishing Permit on that basis unless the application for a Fishing Permit is submitted within three months of the expiry date of the Fishing Permit which allows access to that fishery or unless it can be demonstrated that exceptional circumstances apply."

5.3.1 Suspending an expired Fishing Permit

Where a decision is made to suspend a Fishing Permit which expired before that decision was taken, the holder of the expired Fishing Permit will be invited to apply for a new Fishing Permit. The new Fishing Permit will then be suspended until the period of the suspension expires. In accordance with the provisions of AFMA's Licensing Policy as noted in 5.3.1 above, application for a new Fishing Permit must be made within three months of expiry of the previous Permit unless it can be demonstrated that exceptional circumstances apply

5.4 Cancelling a fishing concession, Fish Receiver Permit or quota

Cancellation of a fishing concession or FRP will permanently deny the concession holder the opportunity to continue to conduct commercial fishing operations or to receive fish. Cancellation of quota will permanently deprive the quota holder of the right to catch that quota. Cancellation thus has more serious consequences for the concession/FRP/quota holder than does either a refusal by AFMA to transfer, or a decision to suspend, a concession, FRP or quota.

AFMA may only decide to cancel a fishing concession where the holder has been convicted of an offence.

In deciding whether or not an offence is serious enough to warrant cancelling a fishing concession, FRP or quota, AFMA will take into account the same considerations as those detailed in Section 5.2 above, noting that:

1. it would be clearly inappropriate to cancel a fishing concession, FRP or quota for a minor offence;
2. it is less likely that a fishing concession, FRP or quota will be cancelled if it is the offender's first offence relating to fisheries than if the offender has committed several offences relating to fishing, whether under the Management Act or any other legislation including the Crimes Act;
3. cancellation is more likely to be warranted if the offence involved failing to report catches of a species considered to be under threat from over-fishing than if another species which is not considered to be under threat from over-fishing is involved; and
4. it is less likely that cancellation would be warranted if the fishing concession or FRP is not the concession or FRP relevant to the offence/s committed.

Section 39 of the Management Act contemplates AFMA deciding to cancel a fishing concession following the conviction of a concession holder, or a person acting on the concession holder's behalf, for an offence against the Management Act or certain other offences. In respect of offences where the court has no power to cancel a fishing concession (ie offences committed prior to 8 July 1997) AFMA will review the matter following a conviction to determine whether cancellation would be appropriate. In so doing, AFMA will take into account any relevant comments by the court, the severity of the penalty imposed, as well as the seriousness of the offence. Such consideration will take into account the matters referred to in Section 5.2 above relating to refusal to transfer a fishing concession or quota.

For offences committed on or after 8 July 1997, AFMA will make submissions to the court on sentencing where it believes that a fishing concession should be cancelled. If the court considers these submissions and decides not to cancel then AFMA will not consider cancelling the fishing concession unless the court indicates that it believed AFMA may wish to consider such action. The courts do not have the power to cancel quota that is not a Statutory Fishing Right.

6. Considering applications

AFMA reserves the right to make enquiries, conduct investigations and seek information from third parties to determine whether any application received is in breach of one or more of the criteria detailed in section 5 above. Such action will be conducted within a reasonable timeframe to allow AFMA to make a full, proper and thorough assessment of the application.

Where a fishing concession and/or an FRP is subsequently granted as a result of such an application, as with any application AFMA may continue to monitor, and may reassess the ownership of, the fishing concession and/or FRP. Should it be disclosed during the course of enquiries or investigations that one or more of the criteria has been or is being breached, in accordance with the declaration made by the applicant on the application, AFMA will consider taking appropriate action, which could include suspending the concession and/or FRP.

7. Protection available to fishers

Refusing to transfer a fishing concession or quota appearing as a condition on a Fishing Permit, refusing to grant a fishing concession or FRP and suspending or cancelling a fishing concession or FRP are administrative decisions which are subject to internal reconsideration and review by the Administrative Appeals Tribunal.

In accordance with the principles of natural justice, AFMA provides operators whose fishing concession, FRP or quota it is considering suspending or cancelling with the opportunity to show cause why this course of action should not be pursued. An exception to this may be when suspension is to be invoked to prevent an alleged offence continuing and the provision of notice would defeat that purpose.

Attachment A - Determining the seriousness of an offence

A number of factors will be taken into account in considering whether an offence is serious enough to warrant refusing to transfer a fishing concession or quota on the basis that AFMA may wish to suspend or cancel the fishing concession or quota.

These factors are based on Article 20 of the Agreement for implementation of the provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fishing Stocks (UN Implementing Agreement) which defines a serious violation as:

1. fishing without a valid licence, authorisation or permit;
2. failing to maintain accurate records of catch and catch-related data or serious misreporting of catch;
3. fishing in a closed area, fishing during a closed season or fishing without quota where no action is taken to cover outstanding catches;
4. directed fishing for a stock that is subject to a moratorium or for which fishing is prohibited;
5. using prohibited gear;
6. falsifying or concealing the markings, identity or registration of a fishing vessel;
7. concealing, tampering with or disposing of evidence relating to an investigation;
8. multiple violations which together constitute a serious disregard of conservation and management measures; or
9. such other violations as may be specified.

Page last updated 18 March, 2010