EXPLANATORY STATEMENT
Fisheries Management Act 1991
FISHERIES CLOSURES (SAVING) DIRECTION 2011
The Fisheries Legislation Amendment Act 2010 (No.2) commenced on 4 January 2011.
Amongst other amendments, the Act repealed subsections 17(5A) and (5B) of the Fisheries Management Act 1991 (the FM Act) and amended section 41A.
Prior to the amendments, section 41A applied only to a fishery in respect of which:
(a) there is no plan of management; and
(b) there are in force fishing permits, scientific permits, foreign fishing licences or foreign master fishing licences entitling the holders of such permits or licences to participate in that fishery.
Where a plan of management (made under subsection 17(1) of the FM Act) was in force, directions to not engage in fishing were made in accordance with subsections 17(5A) of the FM Act.
The effect of the amendments was to consolidate into one provision the powers in the FM Act to direct that fishing is not to be in engaged in a fishery, or a particular part of the fishery, during a particular period or periods.
Accordingly section 41A now provides that the Australian Fisheries Management Authority may direct that fishing is not to be engaged in in a fishery, or a particular part of a fishery, whether or not a plan of management is in force. In this respect, subsection 41A(1) provides that the section applies to a fishery in respect of which ‘fishing concessions’, which includes statutory fishing rights, are in force (as well as any of the other instruments specified).
Therefore, the power in the FM Act to direct that fishing is not to be engaged in where a plan of management is in force has not been repealed, but moved to another part of the Act. However, the purpose of this Direction is to ensure, for the avoidance of doubt, that all directions made under subsection 17(5A) of the FM Act, and the relevant plans of management, that were in force when the Fisheries Legislation Amendment Act 2010 (No.2) commenced, continue in to be force according to their terms.
The Commission has delegated the power under section 41A to the person from time to time holding, occupying or performing the duties of the position of the Chief Executive Officer, pursuant to Delegation No 1 of 2001 dated 28 January 2011.