1. Legally Enforceable Data Collection
Seventh Tuna Data Workshop
Noumea, April 2013
Some work has been done on this in the past in relation to developing frameworks and structures.
I understand the issue to be that legal frameworks are in place to ensure data is both provided and provided correctly and where this is not the case the ability exists to prosecute.

2. Why collect data? Scientific and management purposes
Development initiatives
Compliance and enforcement activity
International and regional obligations
Market requirements

3. Why do you need a legal framework for data?
To ensure it is provided
and accurate
** Talk about recent question:
Answer is: It depends …

4. What is legally enforceable data collection?
Collection of data:
according to requirements that are stipulated in legislation;
with prescribed penalties for non-compliance; and
structured in such a way as to withstand legal/administrative challenge.
Will go further into these elements in the presentation
It means that if this action is not performed then there are consequences to this act or non-action.
Only when there are consequences then it is enforceable.
Consequences can be either pecuniary penalties or privileges can be curtailed.
Through the application of the correct legal framework capacity exists to prosecute vessels that are not:
Providing data on the required forms
Providing the data accurately
This is a fundemental requirement of making sure you receive data and ensure that if someone is not providing you with data mechanisms exist to create incentive for them to provide it 1.) fine or 2.) take away their licence.
This is where the legally enforceable part comes into it.

5. How does this legal framework work – and is it sufficient?

6. Legislative framework
Legislation
Acts
Subordinate legislation
Regulations
Legislative instruments
Management Plans, Determinations, Directions, Notices
Administrative instruments
Permits, Licences, MOUs, Access Agreements
** But variable strengths and weaknesses

7. Legislative framework
Legislation
Subordinate legislation
Legislative instruments
Administrative instruments
TRANSPARENCY
EASE OF USE
PENALTIES
POWER

8. Typical structure Fisheries Act has a general statement
E.g. the State may collect any data as required or necessary to manage the fishery.
Regulations provide further detail on the high level matters
In particular fines associated with not providing data or specific types of data (Act can specify fines as well).
Access agreements include broader requirements
Licence conditions define specific components of reporting that apply to a licenced vessel (fishing or carrier vessel).
Legislation and Regulation –
Requirements relating to data are usually contained, inter alia, in the following provisions:
Requirement to keep and furnish certain information;
General licence obligations;
Special licence conditions;
Observers;
Port sampling;
Confidentiality of information;
Ownership of information;
Access agreements: e.g. fleet wide reporting requirements including timeframes, the types of forms required to be completed, requirements related to observers. Important to ensure that anything in access agreements is consistent with legislation. Access agreements should include penalties.
Licences might cover matters which change on an annual basis – e.g. CMM reporting on FAD fishing.

9. What needs to be covered?
What data needs to be collected?
Who is required to collect it and who do they give it to?
How should it be collected?
When do they need to collect it and provide it?
Why? What are the consequences of not complying?

10. FFA Legislative reviews
FFA is reviewing and preparing fisheries legislation for 13 countries.
For some, assistance has also included the preparation of regulations, licence conditions and agreements.
The primary legislation has been submitted for FSM, Fiji, Kiribati, Tuvalu.
Solomon Islands, Samoa, Niue, Vanuatu are ongoing.
Primary legislation that has been submitted (but may not have been enacted):
FSM: Amendments to Title 24
Fiji: Offshore Fisheries Decree (enacted Dec 2012)
Kiribati: Fisheries Amendment Bill 2012
Tuvalu: Marine Resources Amendment Act 2012
There are new provisions we are including in draft legislation to reflect data collection and submission requirements. For example in the Vanuatu review, we have included a provision for catch documentation requirements, and the collection and submission of data to external bodies to which the country is a member. In most cases these specific provisions will be provided for in regulations or other instruments.

11. FFA Legislative reviews
Most members do have a head of power to collect information either in an Act or in Regulations.
The mechanism to prescribe the data to be collected varies widely
Many rely on access agreements
Evolution of technology and admissibility of data
Mechanism: varies widely amongst members – ranging from statements in the Act, to license conditions or no formal articulation.

12. Licence conditions: Harmonised Minimum Terms and Conditions
Licence conditions are the lowest form of legislation, but often the easiest to change, implement and enforce.
FFC has endorsed a standardised set of Minimum Terms and Conditions (MTCs). These are currently being reviewed.
Benefit:
Ensuring that no matter where a vessel operates it is required to operate under the same set of data requirements,
Consistency for enforcement and compliance,
Address primary obligations under WCPFC and FFC commitments.
Even if conditions reiterate other legislation the actual licence issued has the conditions under which a vessel is required to operate detailed.

13. Elements of legally enforceable data collection
Key points
Elements of legally enforceable data collection
A head of power (preferably in legislation);
Clear articulation (as high in the legislative hierarchy as possible) of:
Who must provide data;
What form they must provide it in;
How regularly they must provide it;
Who they must provide it to; and
What will happen if they don’t.
Head of power – statement “somewhere appropriate” either giving you the authority to collect data AND/OR fishers the responsibility to provide data
Most appropriate place is in an ACT
Clear articulation…preferably higher in the hierarchy:
Legislation (acts)
Subordinate legislation (regulations)
Legislative instruments (management plans, determinations, directions)
Administrative instruments (access agreements, permit conditions)
All elements don’t have to be included in the same place.

14. Conclusion Are you getting the data you need to manage your fisheries?
Remember: you can collect any information you want, just make it a condition of access
Are there issues with getting timely and accurate data?
Is the legislative framework sufficient?
Is it being used?
Ensure that your legislative framework is sufficient to detail the data you want collected and prescribe the penalties where it is not provided.
If not, call FFA legal team – happy to assist with the review of legislation.