EXPLANATORY STATEMENT
LEGISLATIVE INSTRUMENT
Issued by the Authority of the Australian Fisheries Management Authority
Fisheries Management Act 1991
Heard Island and McDonald Islands Fishery Management Plan 2002
Direction No. HIMIFD 11
CLOSURE OF WATERS ADJACENT TO HEARD ISLAND AND McDONALD ISLANDS
The Heard Island and McDonald Islands Fishery Management Plan 2002 (the Plan) is a plan of management for the Heard Island and McDonald Islands Fishery (the Fishery) determined under section 17 of the Fisheries Management Act 1991 (the Act) on 8 May 2002.
Subsection 17(5A) of the Act authorises the inclusion in a plan of management of provision for the giving of directions by the Australian Fisheries Management Authority (AFMA), after such consultations as are set out in the Plan, that fishing is not to be engaged in in the Fishery, or a particular part of the Fishery, during a particular period or periods. Holders of fishing concessions in the Fishery are obliged through the operation of sections 22 and 95 of the Act to comply with such a direction as a condition of the grant of a fishing right.
Direction No. HIMIFD 11 revokes a previous direction, Direction No. HIMIFD 6 made on 1 April 2004 but which commenced on 21 April 2004, which was in the same form and to the same effect.
The Fishery
The new Direction in the same manner as the previous Direction prohibits fishing in waters between 12 and 13 nautical miles of the Heard Island and McDonald Islands. Heard Island and McDonald Islands are included on the World Heritage List. In addition, the Islands themselves and the surrounding territorial waters, which extend for a distance of 12 nautical miles from the Islands, form part of the Heard Island Wilderness Reserve. An additional buffer zone of 1 nautical mile has been implemented by AFMA to complement the 12-mile prohibition, so fishing is prohibited within 13 nautical miles of Heard Island and McDonald Islands. The Wilderness Reserve is managed by the Australian Antarctic Division (AAD) under the Heard Island Wilderness Reserve Management Plan established under the Heard Island and McDonald Islands Environment Protection and Management Ordinance 1987.
Consultation
Subsection 31(1) of the Plan provides for AFMA to give a direction as referred to in subsection 17(5A) of the Act. Subsection 31(2) provides that before giving a direction AFMA must consult with, and consider the views of the Sub-Antarctic Fisheries Management Advisory Committee (SouthMAC) and the Sub-Antarctic Resource Assessment Group (SARAG). Consultation on the new Direction with SouthMAC and SARAG has taken place in accordance with subsection 31(2) of the Plan.
Both SARAG and SouthMAC are supportive of its implementation.
Regulatory impact analysis
The Office of Best Practice Regulation has advised that no regulatory impact analysis, in the form of a Business Cost Calculator Report or Regulation Impact Statement, is required (reference 10076).
Commencement
Direction No. HIMIFD 11 commences at the start of 22 April 2009.
Details of the Direction are set out below:
Clause 1 Provides that the direction is Direction No. HIMIFD 11.
Clause 2 Provides for the commencement of the Direction.
Clause 3 States to whom the Direction applies.
Clause 4 Sets out the period of application of the Direction.
Clause 5 Provides for the interpretation of terms used in the Direction.
Clause 6 Prohibits fishing one nautical mile seaward of the outer edge of the territorial sea of the Territory of Heard Island and McDonald Islands.
Clause 7 Provides for an exemption to the Direction if a person is fishing under a Scientific Permit.
Clause 8 Revokes Direction No. HIMIFD 6.
Overview
The Fisheries Management Act 1991 was enacted to establish a framework for the sustainable management of fisheries within Australia's jurisdiction. One of the critical gaps this legislation aimed to address was the need for specific management plans to protect ecologically sensitive areas, such as the waters around Heard Island and McDonald Islands. This Act empowers the Australian Fisheries Management Authority (AFMA) to develop and implement management plans for specific fisheries, including the ability to issue directions that prohibit fishing in certain areas or during specific periods to protect the marine environment and biodiversity. The policy objective of this legislation is to ensure the sustainable use of fishery resources while protecting the marine ecosystem.
Direction No. HIMIFD 11, issued under the authority of AFMA, is an instrument that complements the Heard Island and McDonald Islands Fishery Management Plan 2002. It specifically addresses the need to protect the fragile marine environment of the sub-Antarctic region by prohibiting fishing within 13 nautical miles of Heard Island and McDonald Islands. This measure aligns with the broader policy objective of preserving the ecological integrity of these islands, which are recognised as a World Heritage site. The Direction revokes the previous Direction No. HIMIFD 6, reflecting updated management strategies and ensuring compliance with the established conservation goals.
Scope and Application
The Heard Island and McDonald Islands Fishery Management Plan 2002, which includes Direction No. HIMIFD 11, applies to all persons and entities engaging in fishing activities within the designated waters around Heard Island and McDonald Islands, specifically prohibiting fishing within 13 nautical miles of the islands. This legislation operates under the overarching framework of the Fisheries Management Act 1991 and is administered by the Australian Fisheries Management Authority (AFMA). The geographic scope of this legislation is confined to the waters surrounding Heard Island and McDonald Islands, which are protected under both the World Heritage List and the Heard Island Wilderness Reserve Management Plan. AFMA is mandated to consult with the Sub-Antarctic Fisheries Management Advisory Committee and the Sub-Antarctic Resource Assessment Group before implementing any fishing direction, as stipulated in the Plan. Any exemptions from the fishing prohibitions are narrowly defined, with only those fishing under a Scientific Permit being allowed to operate within the prohibited zones. Direction No. HIMIFD 11, which revokes Direction No. HIMIFD 6, came into effect on 22 April 2009.
Key Provisions
The primary operative sections of Direction No. HIMIFD 11, under the Fisheries Management Act 1991, include Clause 4, which sets the period of application of the Direction, and Clause 6, which explicitly prohibits fishing one nautical mile seaward of the outer edge of the territorial sea of the Territory of Heard Island and McDonald Islands. Clause 8 revokes the previous Direction No. HIMIFD 6, which had similar provisions. The Direction applies to any person or entity engaging in fishing activities within the specified waters around Heard Island and McDonald Islands.
Holders of fishing concessions in the fishery are required to comply with the Direction as a condition of their fishing rights, as outlined in sections 22 and 95 of the Fisheries Management Act 1991. The Australian Fisheries Management Authority (AFMA) must consult with the Sub-Antarctic Fisheries Management Advisory Committee (SouthMAC) and the Sub-Antarctic Resource Assessment Group (SARAG) before issuing such a Direction, as stipulated in subsection 31(1) and (2) of the Plan. This ensures that the views of these groups are considered in the management of the fishery.
The Direction imposes strict obligations on parties and entities engaged in fishing activities in the specified waters. They are required to cease fishing activities within the defined boundaries of 13 nautical miles from Heard Island and McDonald Islands. This prohibition is intended to protect the ecological integrity of the area, which is part of the World Heritage List and the Heard Island Wilderness Reserve. There is an exemption for those fishing under a Scientific Permit, as outlined in Clause 7, ensuring that legitimate scientific research can continue.
Breaches of the Direction may lead to civil or criminal consequences. The Act does not specify particular penalties, but non-compliance with fishing management plans can result in enforcement actions, including fines or other legal penalties. The seriousness of the breach and adherence to the terms of the fishing concession will influence the consequences imposed. Compliance with the Direction is essential to avoid any legal ramifications and to contribute to the conservation efforts in the region.