Foreign Fisheries Enforcement: Do Not Pass Go, Proceed Slowly to Jail - Is Australia Playing by the Rules?

Abstract

The number of reported apprehensions of foreign fishing vessels (FFVs) in the northern reaches of Australia's exclusive economic zone (EEZ) continues to climb. In late September 2006 government figures suggested that on average, one FFV per day is apprehended. This adds up to a considerable number of fishers to be processed by Australian authorities. It is this matter of processing which forms the focus of this paper. In particular two issues warrant detailed examination. These are the passage of time between apprehension and court appearance, and the increasing practice of the prosecution to seek jail terms for what are, in substance, regulatory fisheries offences. The issue of default imprisonment for non payment of fines is also examined.

There has been an emerging practice, where there is evidence of the resistance of arrest, to charge FFV crew under the Criminal Code Act 1995 (Cth) rather than section 108(1) of the Fisheries Management Act 1991 (Cth). The reasoning appears to be that this characterises the offence as something other than a regulatory fisheries offence and casts legitimacy over the imposition of jail terms which would otherwise be unlawful under Article 73(3) of the Law of the Sea Convention (LOSC). This paper examines whether this practice does actually accord with international law.

In relation to the passage of time, (sometimes four to five months are spent in pre-trial custody) the paper explores the duty to promptly release the FFV crew under the LOSC and the attendant obligations that duty imposes on the coastal State to charge crew in an expeditious manner, whilst also observing due process.

The issues are examined in the context of the 2006 trial of the Master of a Chinese fishing vessel, the De Yuan Yu 01 with comparative analysis of some other recent convictions.

Keywords: illegal fishing, law of the sea, fisheries management