Fisheries Management Amendment Regulations 2000 (No. 6) 2000 No. 339
EXPLANATORY STATEMENT
STATUTORY RULES 2000 No. 339
Issued by the authority of the Minister for Agriculture, Fisheries and Forestry
Fisheries Management Act 1991
Fisheries Management Amendment Regulations 2000 (No. 6)
Subsection 168(1) of the Fisheries Management Act 1991 (the Act) empowers the Governor-General to make regulations required or permitted by the Act to be prescribed.
Subsection 14(2) of the Act provides that for the purposes of conserving the marine environment, regulations may be made in relation to, among other things, the taking and treatment of bycatches. Subsection 32(6) of the Act provides that a fishing permit is subject to conditions as are prescribed in relation to permits.
Section 72 of the Act allows the Commonwealth to make an Offshore Constitutional Settlement (OCS) arrangement with a State whereby it is agreed that a fishery is to be managed in accordance with either the law of the Commonwealth or the law of the State. Several arrangements have been entered into by the Commonwealth with the Northern Territory and each of the states of Queensland, South Australia, Tasmania, Victoria and Western Australia pursuant to which arrangements for by-catch of non-target fish species have been agreed. These arrangements are detailed in Memoranda of Understanding between the Commonwealth, the relevant Territory or State and the Australian Fisheries Management Authority (AFMA).
These arrangements refer to by-catch restrictions for fish species now managed as target species in accordance with State law but that are to be regulated under Commonwealth law when taken as by-catch by Commonwealth fishing concession holders.
These arrangements were previously set out in Part 11 (By-catch Restrictions) of the Fisheries Management Regulations (the principal Regulations). The purpose of the Fisheries Management Amendment Regulations (the Regulations) is to replace Part 11 with a revised Part 11. Part 11 details bycatch restrictions by reference to particular species in waters adjacent to the States of South Australia, Tasmania and Victoria in accordance with the arrangements which have been negotiated. Part 11 also incorporates the restrictions previously set out in section 8A of the principal Regulations, which related to restrictions for by-catch taken by Commonwealth fishing concession holders with tuna permits in waters adjacent to Western Australia, the Northern Territory and Queensland.
The Regulations amend Part 11 in a number of ways:
* The by-catch restrictions will be imposed as permit conditions under section 332(6) rather than as offences attracting a monetary penalty for breach.
* The Regulations make some technical changes to the wording of the provisions imposing bycatch restrictions to make the provisions clearer and more workable. These alterations are intended to more clearly reflect the relevant OCS arrangements and avoid confusion about whether or not a species is taken as by-catch. Under the OCS arrangements for South Australia, Tasmania and Victoria, the Commonwealth has jurisdiction over otherwise State managed species when those species are taken as bycatch by a Commonwealth operator Therefore, an operator who is fishing under a Commonwealth concession only, is restricted to, taking State-managed species in accordance with the limits in the Regulations. If any Statemanaged species are taken in excess of these limits, then the operator is breaching the conditions of the Commonwealth concession under which the fishing operation is being carried out.
* Part 11, Division 3 of the Regulations previously imposed by-catch restrictions when fishing using all fishing methods in Victorian waters. This did not reflect the OCS arrangements made between Victoria and the Commonwealth which differentiate jurisdiction on the basis of trawl and non-trawl methods in relation to some species. The effect of these arrangements is that by-catch restrictions for finfish species should not apply in relation to Commonwealth trawl permits. The Regulations revise the principal Regulations to correct this error and make the distinction.
* Increase the by-catch limits for Mulloway in South Australia from the limit previously set out in the principal Regulations. This adjustment is consistent with agreed modifications to the Memorandum of Understanding between the Commonwealth, AFMA and South Australia.
* Increase the by-catch limit for Bay Bugs in South Australia to 200 kilograms from 50 kilograms as previously set out in the principal Regulations. This adjustment is consistent with agreed modifications to the Memorandum of Understanding between the Commonwealth, AFMA and South Australia.
* Increase the by-catch limit for King Crabs in South Australia from nil to 5, as previously set out in the principal Regulations. This adjustment is consistent with agreed modifications to the Memorandum of Understanding between the Commonwealth, AFMA and South Australia.
* Introduce a combined by-catch limit for snapper, striped trumpeter and yellowtail kingfish in Tasmanian waters. This adjustment is consistent with agreed modifications to the Memorandum of Understanding between the Commonwealth, AFMA and Tasmania.
* Remove some by-catch limits previously set out in the principal Regulations which imposed zero bycatch restrictions for particular State-managed species (rock lobster and abalone in all States and scallops in South Australia). These zero limits are specified in the relevant Memoranda of Understanding but are unnecessary in regulations, as these species do not fall within Commonwealth jurisdiction in any circumstances. The Regulations correct the unnecessary inclusion of these provisions in the principal Regulations.
* Amend the description of 'Tasmanian waters' to specifically exclude small areas of Tasmanian National Park and Marine Nature Reserves. The exclusion of these areas from the description of Tasmanian waters is consistent with OCS arrangements between the Commonwealth and Tasmania.
Details of the Regulations, which commenced on gazettal, are set out below:
Regulation 1 provides that these regulations are named the Fisheries Management Amendment Regulations 2000 (No. 6).
Regulation 2 states that the Regulations commence on gazettal.
Regulation 3 states that Schedule 1 amends the principal Regulations.
Schedule 1 Item 1 substitutes the revised Part 11 for the Part 11 in the principal Regulations.
Schedule 1 Item 2 substitutes the revised Schedule 5 for Schedule 5 in the principal Regulations.
Schedule 1 Item 3 substitutes the revised Schedule 6 for Schedule 6 in the principal Regulations.