Foreign fisheries enforcement: do not pass go, proceed slowly to jail - is Australia playing by the rules?

Foreign fisheries enforcement: do not pass go, proceed slowly to jail - is Australia playing by the rules?

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.1 This adds up to a considerable number of fishers to be processed by Australian authorities. Indeed, the Northern Territory Government has recently raised concerns about the capacity of its courts and jails to deal with the increasing numbers of fishers.2 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 resistance to arrest, to charge FFV crews under the Criminal Code Act 1995 (Cth),3 rather than s 108(1) of the Fisheries Management Act 1991 (Cth).4 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 that would otherwise be unlawful under article 73(3) of the Convention on the Law of the Sea ('LOSC').' This paper examines whether this practice accords with international law.

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