Developments in australian fisheries law: Setting the law of the sea convention adrift?

Environmental and Planning Law Journal

Volumn 21, Issue 3, 2004, Pages 169-176

  Gullett, Warwick ^a  

^a UNIVERSITY OF WOLLONGONG   (Australia)

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EID: 34548679320     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Editorial

References (51)

1. Australia's fishing laws are a complex mosaic of Commonwealth, State and Territory laws. A good general reference for these laws is Haward M, "The Commonwealth in Australian fisheries management: 1955-1995" (1995) 2 Australasian Journal of Natural Resources Law and Policy 313. The Fisheries Management Act 1991 (Cth) and Fisheries Administration Act 1991 (Cth) establish the major Commonwealth fisheries laws, which, as a general rule of thumb (but with many exceptions), apply to fisheries outside of the 3 nautical mile limit of State coastal waters and waters around Australia's external territories to the limit of the AFZ.
2. United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3; ATS 1994 No 31; ILM 21 p 1261 (entered into force for Australia and generally 16 November 1994). Significantly, the United States has yet to ratify LOSC.
3. Received Royal Assent 1 April 2004; ss 1-3 effective as of 1 April 2004, Sch 1 on Proclamation or after six months.
4. In November 2003 Australia signed a treaty with France to improve cooperation in surveillance of suspected illegal fishing vessels ("Treaty Between the Government of Australia and the Government of the French Republic on Cooperation in the Maritime Areas Adjacent to the French Southern and Antarctic Territories (TAAF), Heard Island and the McDonald Islands"). In December 2003 the Howard Government announced the allocation of additional funding to police remote fisheries including the leasing of an ice-strengthened vessel with a deck-mounted machine gun to patrol areas of the AFZ in which Patagonian toothfish are targeted. See Alexander Downer (Minister for Foreign Affairs) "Maritime agreement sends a strong message to illegal fishing operators" (Press release, 24 November 2003) and Ian MacDonald (Minister for Fisheries) "Permanent armed patrols to toughen border protection in Southern Ocean" (Press release, 17 December 2003).
5. Molenaar EJ, "Multilateral hot pursuit and illegal fishing in the Southern Ocean: the pursuits of the Viarsa 1 and the South Tomi" (2004) 19 International Journal of Marine and Coastal Law (forthcoming)
6. Rothwell DR and Stephens T, "Illegal Southern Ocean fishing and prompt release: balancing coastal and flag state rights and interests" (2004) 53 International and Comparative Law Quarterly 155.
7. Fisheries Legislation Amendment (Compliance and Deterrence Measures and Other Matters) Act 2004, s 106J.
8. Fisheries Legislation Amendment (Compliance and Deterrence Measures and Other Matters) Act 2004, s 106J. This is a relatively frequent occurrence. In recent years France, South Africa and the United Kingdom have assisted Australian government vessels to arrest foreign fishing boats suspected of illegal fishing activity in the AFZ.
9. Fisheries Legislation Amendment (Compliance and Deterrence Measures and Other Matters) Act 2004, ss 106J and 106L(1)(c).
10. Fisheries Legislation Amendment (Compliance and Deterrence Measures and Other Matters) Act 2004, s 106K.
11. Fisheries Legislation Amendment (Compliance and Deterrence Measures and Other Matters) Act 2004, s 106S.
12. LOSC, Art 73(2).
13. The "Volga" Case (Russian Federation v Australia) (Prompt Release) (Judgment) (2002) ITLOS Case No 11. The non-financial conditions set included the requirements that information be provided about the beneficial owners of the vessel and that the vessel carry a vessel monitoring system. See Gullett W, "Prompt release procedures and the challenge for fisheries law enforcement: the judgment of the International Tribunal for the Law of the Sea in the Volga Case (Russian Federation v Australia)" (2003) 31 FLR 395.
14. Parliament of Australia Senate Hansard, 10 February 2004, 19609.
15. See, for example, Bray K, "Illegal, unreported and unregulated (IUU) fishing" in Nordquist MH and Moore JN (eds), Current fisheries issues and the Food and Agricultural Organization of the United Nations (Kluwer Law International, 2000) 115.
16. See The "Monte Confurco" Case (Seychelles v France) (Prompt Release) (Judgment) (2000) ITLOS Case No 6, para 73. In this case, ITLOS reduced the bond amount set by France for the release of the Seychelles-flagged vessel by more than two thirds.
17. AFMA, "Entire crew of Maya V charged with illegal fishing" (Press release, 12 February 2004).
18. See, for example, Gullett W, Paterson C and Fisher E, "Substantive precautionary decision-making: the Australian Fisheries Management Authority's 'lawful pursuit' of the precautionary principle" (2001) 7 Australasian Journal of Natural Resources Law and Policy 95.
19. Received Royal Assent 2 April 2004; ss 1-3 effective as of 2 April 2004; Schs 1 and 2 on Proclamation but not before the Compliance Agreement enters into force for Australia, or after six months.
20. Entered into force 24 April 2003.
21. Parliament of Australia, Joint Standing Committee on Treaties, Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, done at Rome on 24 November 1993: National Interest Analysis.
22. Parliament of Australia Senate Hansard, 11 February 2004, 19893.
23. Molenaar EJ, "Participation, allocation and unregulated fishing: the practice of regional fisheries management organisations" (2003) 18 International Journal of Marine and Coastal Law 457 at 461.
24. Compliance Agreement, Art III(5)(c)(d).
25. Fisheries Legislation Amendment (High Seas Fishing Activities and Other Matters) Act 2004, s 16B(5).
26. Fisheries Legislation Amendment (High Seas Fishing Activities and Other Matters) Act 2004, s 84(1AB).
27. Parliament of Australia Senate Hansard, 11 February 2004, 19901.
28. Commonwealth Department of Agriculture, Fisheries and Forestry, Looking to the future: a review of Commonwealth fisheries policy (June 2003) p 27.
29. Parliament of Australia Senate Hansard, 11 February 2004, 19896-19897, 19988-19989.
30. Lijo v Director of Public Prosecutions (Cth) [2003] WASCA 4 (Unreported, Anderson, Templeman JJ and Olsson AUJ, 16 December 2002).
31. Olbers v Commonwealth of Australia (No 2) [2003] FCA 177 (decision 11 March 2003).
32. Olbers v Commonwealth of Australia (No 4) [2004] FCA 229 at [62], [63] and [80].
33. Olbers v Commonwealth of Australia (No 4) [2004] FCA 229 at [77].
34. Ian MacDonald (Minister for Fisheries) "New chapter in maritime law: attempt to claim back the Volga rejected" (Press release, 13 March 2004).
35. Ian MacDonald (Minister for Fisheries) "New chapter in maritime law: attempt to claim back the Volga rejected" (Press release, 13 March 2004).
36. Fisheries Management Act 1991, s 101(1)(d).
37. Fisheries Management Act 1991, s 99.
38. Fisheries Management Act 1991, s 84(1)(g)(ii).
39. LOSC, Art 73(2).
40. LOSC, Art 111(8).
41. Fisheries Management Act 1991, ss 106B-106G.
42. The offences in the FM Act are subject to Chapter 2 of the Criminal Code (s 6A FM Act). They are stated to be offences of strict liability (s 6.1 of the Code). Therefore, the Commonwealth does not need to prove a fault element of intention, knowledge, recklessness or negligence (ss 5.1-5.6 of the Code), but the defence of mistake of fact (s 9.2 of the Code) is available. To establish a mistake of fact a person must prove on the balance of probabilities that the person considered whether or not facts existed, and was under a mistaken but reasonable belief about those facts.
43. Olbers v Commonwealth of Australia (No 4) [2004] FCA 229 at [97].
44. LOSC, Art 111(1).
45. Fisheries Management Act 1991, s 87(2).
46. Fisheries Management Act 1991, s 87(3).
47. See I'm Alone (Canada v USA) (1935) 3 UN RIAA 1609
48. Barrett W, "Illegal fishing in zones subject to national jurisdiction" (1998) 5 James Cook University LR 1 at 18.
49. Olbers v Commonwealth of Australia (No 4) [2004] FCA 229 at [96].
50. See LOSC, Art 62(4) and Art 73(1).
51. Gullett W, "Prompt release procedures and the challenge for fisheries law enforcement: the judgment of the International Tribunal for the Law of the Sea in the Volga Case (Russian Federation v Australia)" (2003) 31 FLR 407.