EXPLANATORY STATEMENT
LEGISLATIVE INSTRUMENT
Issued by the Chief Executive Officer
of the Australian Fisheries Management Authority
Fisheries Management Act 1991
Fisheries Management Act 1991 (Southern Bluefin Tuna Algal Bloom) Temporary Order No.1 2026
Section 43 of the Fisheries Management Act 1991 (the Management Act) provides for the Australian Fisheries Management Authority (AFMA) to make an order to enable quick action to deal with (inter alia), circumstances where urgent action is required for purposes related to the management of a fishery. Pursuant to section 92(1) of the Fisheries Administration Act 1991, the Authority has delegated it powers and functions under section 43 of the Management Act to the Chief Executive Officer of AFMA.
In this instance, the CEO has exercised the powers to make this Temporary Order which deals with specific circumstances in the Southern Bluefin Tuna Fishery (SBT Fishery) where a tow cage operated by a concession holder, transporting Southern Bluefin Tuna (SBT) is affected by a harmful algal bloom.
Southern Bluefin Tuna, (SBT, Thunnus maccoyii) is a highly migratory species and is widely distributed throughout waters of the southern oceans, including the Australian Fishing Zone (AFZ). Internationally, fishing for SBT is managed by the Commission for the Conservation of Southern Bluefin Tuna of which Australia is a member. The SBT Fishery encompasses SBT fishing operations inside the AFZ (i.e., adjacent from 3 to 200 nautical miles around Australia) and on the high seas. Aside from New South Wales, under an Offshore Constitutional Settlement arrangement between the Commonwealth and the States/Territories, management of the SBT Fishery to the area of low water mark is the responsibility of the Commonwealth through AFMA.
The SBT Fishery is managed under the Southern Bluefin Tuna Fisheries Management Plan 1995 (the Plan) using Statutory Fishing Rights (SFRs) that allow holders to fish for SBT within the AFZ and the high seas. The majority of SBT are caught live and transferred from a tow cage into a farm where the fish are kept for an approximate six months grow-out period. Fishing occurs in offshore waters adjacent to Kangaroo Island, South Australia. The remainder are caught using longline methods, predominantly off south-eastern Australia during the winter months. The recreational sector continues to be managed by the relevant States using bag and size limits.
Since March 2025, a large harmful algal bloom has affected the waters of the Gulf of St Vincent, Spencer Gulf, Kangaroo Island and nearby areas. This includes areas where SBT fishing occurs as well as the location of farm grow-out sites near Port Lincoln. The harmful algal bloom has resulted in widespread marine life deaths, impacting fish, shellfish and other sea life.
In March 2026 the harmful algal bloom has impacted on SBT Fishery operations including incidents of elevated SBT mortality observed in tow cages being transported back to Port Lincoln. In most cases the mortalities have been managed in accordance with the existing provisions of the Plan. However, in one case it has been assessed that the release of SBT from a tow cage is necessary to minimise SBT mortality.
The Plan includes provisions to allow for the release of SBT from tow cages in certain circumstances (clause 22CA). The circumstances include, for example, where a concession holder has over-caught SBT that exceeds their SFR holdings, to catch a certain quantity of SBT, during a season. The provisions do not extend to releasing fish to avoid SBT mortalities caused by exposure to a harmful algal bloom.
Under this Temporary Order, a concession holder may be approved by AFMA to release SBT from a tow cage affected by the harmful algal bloom. AFMA’s approval may be subject to specific conditions. The Temporary Order will have effect until 30 April 2026.
Whilst the Temporary Order is in force, only one further order, the same in substance as the first order, may be made. In future AFMA will consider whether amendments to the Plan are required to allow for the release of SBT from tow cages if similar events occur in the future.
Despite there being no requirement for AFMA to undertake consultation with affected persons in relation to an order made under section 43 of the Management Act, AFMA has consulted with the SBT Fishery industry covered by the order and the Australian Southern Bluefin Tuna Fishery Industry Association. AFMA is satisfied the Temporary Order is a necessary action to meet its legislative objectives for the management of the SBT Fishery.
Consultation
AFMA consulted with holders of statutory fishing rights affected by the harmful algal bloom and the Australian Southern Bluefin Tuna Fishery Industry Association.
Regulation Impact Statement
The Office of Impact Analysis (OIA) has advised that a Regulation Impact Statement is not required for this instrument, consistent with the list in Table 1 of the OIA’s Approved Carve-outs as at 12 March 2024 for AFMA (OIA23-06107) for instruments of a machinery nature.
Statement of compatibility prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
This legislative instrument is compatible with the human rights and freedoms under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
ATTACHMENT A
Details of the Fisheries Management Act 1991 (Southern Bluefin Tuna Algal Bloom) Temporary Order No.1 2026
Section 1 Provides that the name of the temporary order is the Fisheries Management Act 1991 (Southern Bluefin Tuna Algal Bloom) Temporary Order No.1 2026
Section 2 Provides that the Temporary order commences the day of registered on the Federal Register of Legislation.
Section 3 Provides that the Temporary Order ceases on 30 April 2026.
Section 4 Provides that the Temporary Order is made under s43 of the Fisheries Management Act 1991.
Section 5 Provides for definitions for certain terms mentioned in the Temporaray Order
Section 6 Provides that in circumstances where a tow cage is affected by harmful algal bloom, a holder is able to apply to AFMA to release tuna from the tow cage that are affect. If AFMA allow the release it can apply conditions to that release and once released the holder may not deduct the quantity of those fish from its quota.
ATTACHMENT B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Fisheries Management Act 1991 (Southern Bluefin Tuna Algal Bloom) Temporary Order No.1 2026
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
Subsection 43 of the Fisheries Management Act 1991 (the Management Act) provides for AFMA to make an order to enable quick action to deal with (inter alia), circumstances where urgent action is required for purposes related to the management of a fishery.
Human rights implications
This Legislative Instrument does not engage any of the applicable rights or freedoms.
Conclusion
This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.