EXPLANATORY STATEMENT
Select Legislative Instrument 2005 No. 79
Minute No. of 2005 - Minister for Fisheries, Forestry and Conservation
Subject: Fisheries Administration Act 1991
Fisheries (Administration) Amendment Regulations 2005 (No. 1)
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Section 114 of the Fisheries Administration Act 1991 (the Act) provides that the Governor‑General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed in carrying out or giving effect to the Act.
The Regulations enable persons who have expertise in the field of law to be nominated for positions on the Statutory Fishing Rights Allocation Panel (the Panel) and the Australian Fisheries Management Authority (AFMA) Board.
The Panel is established by the Fisheries Management Act 1991.Under section 141 of the Fisheries Management Act 1991, the members of the Panel are selected according to sections 29 to 41 of the Act and any regulations made for the purposes of those sections. Section 30 of the Act restricts the selection of Panel members to those who have expertise in the fields of: commercial fishing; fishing industry operations other than commercial fishing; fisheries science; natural resource management; marine ecology; economics; business management; or such other fields as are prescribed. The Regulations include the field of law as a prescribed field in the Principal Regulations.
The Panel has the function of reviewing decisions relating to the provisional allocation of Statutory Fishing Rights. The Panel may be required to consider complex fisheries and administrative legislative requirements, provide directions on proceedings before the Panel, run hearings and write up decisions that are reviewable in the Federal Court of Australia. It is appropriate for someone with legal expertise to be able to be selected as a member of the Panel.
The amendment also has the effect of including law as a field of expertise for the selection of nominees for appointment as directors of AFMA. Expertise in the law is seen as a useful skill for directors of the Authority to have.
The Act does not specify any conditions as needing to be met before the power to make the Regulations may be exercised.
Details of the Regulations, which commenced on the day after they are registered on the Federal Register of Legislative Instruments, are set out below.
Regulation 1 provides that the Regulations are named as the Fisheries (Administration) Amendment Regulations 2005 (No. 1).
Regulation 2 provides that the Regulations commence on the day after they are registered.
Regulation 3 provides that Schedule 1 amends the Fisheries (Administration) Regulations.
Schedule 1 Items 1 and 2 are stylistic changes required when amending older instruments. Item 1 updates the name of the Principal Regulations in line with modern drafting practice. The Principal Regulations will now be known as the Fisheries (Administration) Regulations 1992 instead of the Fisheries (Administration) Regulations. Item 2 substitutes Act for the Act. Item 3 inserts a new regulation prescribing law as a field of expertise for paragraph 30 (1) (h) of the Act. This will enable people with expertise in law to be appointed as a member of the Panel or as a director of AFMA.
Overview
The Fisheries (Administration) Amendment Regulations 2005 (No. 1) were enacted to amend the Fisheries Administration Act 1991, addressing the need to incorporate legal expertise within the Statutory Fishing Rights Allocation Panel and the Australian Fisheries Management Authority Board. This was achieved through the authority vested in the Governor-General under Section 114 of the Act, allowing for regulations that are necessary or convenient to the Act's implementation. The Regulations were introduced by the Minister for Fisheries, Forestry and Conservation, aiming to enhance the expertise of the Panel by including law as a prescribed field, thereby enabling the selection of members with legal expertise for their role in reviewing complex fisheries-related decisions and administrative requirements. The inclusion of legal expertise in the Board of AFMA was similarly intended to benefit the Authority by providing directors with essential legal skills.
Scope and Application
The Fisheries (Administration) Amendment Regulations 2005 (No. 1) extend the scope of the Fisheries Administration Act 1991 by including the field of law as a prescribed area of expertise for the selection of members of the Statutory Fishing Rights Allocation Panel and the Australian Fisheries Management Authority (AFMA) Board. These Regulations were made under section 114 of the Fisheries Administration Act 1991, which allows for regulations to be made for matters required or permitted by the Act, or necessary or convenient in carrying out the Act. This amendment allows for the inclusion of legal expertise on the Panel, which reviews decisions relating to the provisional allocation of Statutory Fishing Rights and may need to consider complex legislative requirements. Similarly, the inclusion of law as a field of expertise for AFMA directors is seen as beneficial due to the Authority's administrative and legal responsibilities. The Regulations commenced on the day after being registered on the Federal Register of Legislative Instruments, and they primarily involve stylistic changes to the Fisheries (Administration) Regulations 1992, as well as the insertion of a new regulation to include law as a field of expertise.
Key Provisions
The main operative sections of the Fisheries (Administration) Amendment Regulations 2005 (No. 1) are Regulation 3 and Schedule 1, which together amend the Fisheries (Administration) Regulations 1992. Regulation 3 specifies the amendments, while Schedule 1 provides the detailed changes, such as the re-naming of the Principal Regulations and the inclusion of law as a field of expertise under section 30 (1) (h) of the Fisheries Administration Act 1991. This inclusion allows for the appointment of individuals with legal expertise to the Statutory Fishing Rights Allocation Panel and the Australian Fisheries Management Authority (AFMA) Board, enhancing the decision-making processes by incorporating legal insights.
The Regulations impose obligations on the parties and entities they govern by ensuring that the Statutory Fishing Rights Allocation Panel and the AFMA Board can include members with expertise in law. This requirement is designed to facilitate more informed and legally sound decisions, particularly given the complex and multifaceted nature of fisheries management and administrative proceedings. The amendment to the Fisheries (Administration) Regulations 1992 ensures that the selection process for Panel members and AFMA directors is expanded to include legal expertise, thereby addressing potential gaps in the current expertise profiles.
Any breach of the provisions within the Fisheries Administration Act 1991 or the Fisheries (Administration) Amendment Regulations 2005 (No. 1) could lead to various consequences. While the specific penalties for non-compliance are not detailed in the explanatory statement, breaches of regulations under the Fisheries Administration Act 1991 generally attract civil or criminal penalties, depending on the nature and severity of the breach. Civil penalties can include fines, while criminal penalties may involve imprisonment, reflecting the seriousness with which the Act treats non-compliance. The Act aims to maintain the integrity and effectiveness of fisheries management and administration in Australia.