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Amongst other amendments, the Act repealed subsections 17(5A) and (5B) of the Fisheries Management Act 1991 (the FM Act) and amended section 41A.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power in the FM Act to direct that fishing is not to be engaged in where a plan of management is in force has not been repealed, but moved to another part of the Act.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.
Overview
The Fisheries Management Act 1991, enacted by the Commonwealth Parliament, was introduced to provide a comprehensive framework for the management of Australia's fisheries, aiming to ensure the sustainable use of fishery resources and the protection of marine ecosystems. The Act was amended by the Fisheries Legislation Amendment Act 2010 (No.2), which brought changes to the way fishing activities could be directed or prohibited, particularly in relation to fisheries without a management plan. This amendment sought to streamline the process of issuing directions to halt fishing activities, consolidating the relevant powers into a single provision under section 41A, thereby ensuring clarity and consistency in the application of such directives.
The Fisheries Closures (Saving) Direction 2011 was introduced to address potential uncertainties arising from the 2010 amendments, particularly concerning the continuity of existing management plans and directions that were in effect prior to the amendments. This Direction ensures that any directions made under the repealed subsections 17(5A) of the Fisheries Management Act, as well as the relevant plans of management that were in force, remain valid and enforceable. This legislative action was taken to avoid any disruption in the management of fisheries and to maintain the regulatory framework's integrity, reflecting the policy objective of preserving the existing regulatory environment until such time as it is formally revised.
Scope and Application
The Fisheries Management Act 1991 applies to fisheries within Australia’s jurisdiction, including its territorial sea and Exclusive Economic Zone, and encompasses all persons and entities involved in fishing activities, such as holders of fishing permits, scientific permits, foreign fishing licences, and foreign master fishing licences. The Act governs the management of fisheries, including the establishment of plans of management and the issuance of various permits and licences. The recent amendments through the Fisheries Legislation Amendment Act 2010 (No.2) have streamlined the authority to direct that fishing should not be engaged in a particular fishery or part of a fishery, irrespective of whether a plan of management is in force. Specifically, section 41A now applies to fisheries where "fishing concessions" are in force, which include statutory fishing rights. The 2011 Direction ensures that all pre-existing directions under subsection 17(5A) and relevant plans of management remain in effect following the commencement of the 2010 Amendment Act. The authority to make such directions has been delegated to the Chief Executive Officer of the Australian Fisheries Management Authority under Delegation No 1 of 2001.
Key Provisions
The main operative sections of the Fisheries Closures (Saving) Direction 2011 ensure that the directions made under the repealed subsections 17(5A) and (5B) of the Fisheries Management Act 1991 (FM Act) continue to have effect. These directions, which were in force when the Fisheries Legislation Amendment Act 2010 (No.2) commenced on 4 January 2011, were concerned with prohibiting fishing activities in specific fisheries or parts of fisheries during certain periods. This was achieved through the application of section 41A of the FM Act, which has been amended to encompass situations where a plan of management is in force, as well as those where it is not.
The Act imposes obligations on the Australian Fisheries Management Authority to ensure that the provisions of the Fisheries Closures (Saving) Direction 2011 are adhered to, particularly in maintaining the existing directions and plans of management that were in effect prior to the commencement of the Fisheries Legislation Amendment Act 2010 (No.2). The Chief Executive Officer of the Authority, to whom the power has been delegated, must oversee the continued enforcement of these directions, ensuring that fishing activities are regulated as per the existing legal framework. This includes monitoring compliance with the directions and taking appropriate action in case of non-compliance.
The Fisheries Management Act 1991, as amended, does not specify any new offences or penalties under the Fisheries Closures (Saving) Direction 2011. However, it is important to note that any breach of the directions made under section 41A of the Act, including those continuing in force under this Direction, could result in legal consequences. These could include fines or other penalties as stipulated in the original Fisheries Management Act 1991. The maximum penalties for such breaches are determined by the specific provisions of the Act and any applicable regulations or directions, which could vary depending on the nature and severity of the offence.