Fisheries Management Amendment Regulations 2001 (No. 3) 2001 No. 190
EXPLANATORY STATEMENT
STATUTORY RULES 2001 No. 190
Issued by the authority of the Minister for Forestry and Conservation
Fisheries Management Act 1991
Fisheries Management Amendment Regulations 2001 (No. 3)
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 and regulations necessary or convenient to be prescribed in carrying out or giving effect to the Act.
The Treaty on Fisheries Between the Governments of Certain Pacific Island States and the Government of the United States of America (the Treaty), to which Australia is a party, is attached as Schedule 1 to the Act. The Treaty provides for fishing access for US tuna fishing vessels to a Treaty area comprising the western and central Pacific including defined areas of coastal state exclusive economic zones. Australia, New Zealand and fourteen developing Pacific Island states receive money for the fishing access provided.
Licensing and enforcement provisions throughout the Act refer to the Treaty and provide for implementation of the Treaty in those parts of the Australian Fishing Zone (AFZ) that overlap with the area to which the Treaty applies. Subsection 4(7) of the Act provides that an amendment of the Treaty does not have effect for the purposes of the Act unless the amendment is declared by regulations to have effect for the purposes of the Act. It also provides that amendments do not take effect for the purposes of the Act until the day on which regulations mentioned in paragraph (a) take effect or on such later day as is specified in those regulations.
The purpose of the Fisheries Management Amendment Regulations (the Regulations) is to declare recent amendments to the Treaty to have effect for the purposes of the Act when those amendments come into force.
Four additional amendments were proposed to the treaty at the 11th annual meeting of the parties to it (Koror, Palau, March 1999). Three of the four amendments relate to changes in the times and areas in Which US purse seine vessels may operate in within the exclusive economic zones of the Solomon Islands and Papua New Guinea. The remaining amendment returns to the US longline fleet the right to fish on the high seas in the Treaty Area, a right inadvertently lost when the treaty was drafted.
Acceptance of the proposed amendments does not require Australia to do anything by way of fisheries access for the US fleet and is of benefit to Pacific Island parties in particular, but also to the US longline fleet. The other Pacific Island State parties to the treaty have either accepted or are undertaking their processes to accept the amendments to the treaty.
The only domestic action required to enable Australia to implement the four amendments is to amend the text of the treaty which is annexed to the Act. The amendments are set out in the Regulations.
Details of the Regulations, which will commence on gazettal, are set out below. Notification of the making of the regulations will not be gazetted until after the Treaty amendments come into force under paragraph (e) of Article 8 of the Treaty. This paragraph provides that the amendments shall enter into force upon receipt by the depositary of instruments of ratification, acceptance or approval by the parties to the Treaty.
Regulation 1 provides that the Regulations are named the Fisheries Management Amendment Regulations 2001 (No. 3).
Regulation 2 provides that the Regulations commence on gazettal.
Regulation 3 provides that Schedule 1 amends the Fisheries Management Regulations.
Schedule 1 Item 1 makes a grammatical change to insert a new paragraph number.
Schedule 1 Item 2 provides that the amendments to the Treaty set out in Schedule 4A of the Regulations have effect for the purposes of the Act in accordance with section 4(7) of the Act.
Schedule 1 Item 3 substitutes a new heading for Schedule 4 of the Regulations to differentiate between the amendments to the Treaty set out in that Schedule from the amendments to the Treaty set out in Schedule 4A.
Schedule 1 Item 4 inserts a new Schedule 4A which details the amendments to the Treaty.
Overview
The Fisheries Management Amendment Regulations 2001 (No. 3) were enacted to address the need to incorporate recent amendments to the Treaty on Fisheries Between the Governments of Certain Pacific Island States and the Government of the United States of America into Australian law. This was necessitated by the amendments made at the 11th annual meeting of the parties to the Treaty in Koror, Palau, in March 1999. These amendments primarily concerned changes to the operational areas and times for US purse seine vessels within the exclusive economic zones of the Solomon Islands and Papua New Guinea, as well as restoring the right to fish on the high seas in the Treaty Area for the US longline fleet. The Regulations were made under the authority of the Minister for Forestry and Conservation, in accordance with subsection 168(1) of the Fisheries Management Act 1991. The policy objective of these Regulations was to ensure that Australia could effectively implement the Treaty amendments without requiring any additional fisheries access commitments, thereby benefiting the Pacific Island parties and the US longline fleet.
Scope and Application
The Fisheries Management Amendment Regulations 2001 (No. 3) amends the Fisheries Management Regulations 1991 to implement recent changes to the Treaty on Fisheries Between the Governments of Certain Pacific Island States and the Government of the United States of America, which Australia is a party to. These amendments ensure that the regulations reflect the updates to the Treaty, specifically concerning the times and areas in which US purse seine vessels may operate within the exclusive economic zones of the Solomon Islands and Papua New Guinea, and the reinstatement of rights for the US longline fleet to fish on the high seas in the Treaty Area. The Regulations apply to all entities involved in fishing activities within the Australian Fishing Zone, particularly those affected by the Treaty provisions. The Regulations extend their application nationally, aligning with the geographic scope of the Treaty, which encompasses parts of the western and central Pacific Ocean, including areas within the exclusive economic zones of the relevant coastal states. The Regulations do not introduce new exclusions or exemptions but rather update existing provisions to accommodate the Treaty amendments. Subordinate instruments may further extend or restrict the application of these Regulations as necessary to ensure compliance with the evolving terms of the Treaty.
Key Provisions
The Fisheries Management Amendment Regulations 2001 (No. 3) (Regulations) are designed to implement recent amendments to the Treaty on Fisheries Between the Governments of Certain Pacific Island States and the Government of the United States of America (the Treaty) within the Australian legal framework. These amendments, agreed upon during the 11th annual meeting of the parties to the Treaty, primarily adjust the operational parameters for US purse seine vessels in the exclusive economic zones of the Solomon Islands and Papua New Guinea and restore a fishing right to the US longline fleet on the high seas in the Treaty Area. Regulation 2 ensures that the Regulations commence on the date of gazette notification, while Regulation 3 amends the Fisheries Management Regulations to incorporate these changes. Specifically, Schedule 1 of the Regulations makes necessary grammatical adjustments and officially declares the Treaty amendments effective under section 4(7) of the Fisheries Management Act 1991 (the Act).
Under the Regulations, the primary obligation falls on ensuring that the domestic legal framework aligns with the updated Treaty provisions. Schedule 1 Item 2 explicitly declares that the Treaty amendments have effect for the purposes of the Act, ensuring that any changes to the Treaty are legally recognised and enforceable within Australia. Additionally, the Regulations necessitate the amendment of the text of the Treaty annexed to the Act, as outlined in Schedule 1 Item 4, which incorporates the new Treaty amendments into the Australian legal system.
Failure to comply with the provisions of the Regulations could result in significant legal consequences. The Act stipulates that any breach of its provisions can lead to criminal and civil penalties. Although the specific penalties are not detailed in the Explanatory Statement, the Act generally empowers authorised officers to take enforcement actions, which may include fines and imprisonment for serious violations. The exact penalties would depend on the nature and severity of the breach, as outlined in the Fisheries Management Act 1991. Furthermore, non-compliance with the Regulations could also have diplomatic repercussions, given the international nature of the Treaty and the involvement of multiple sovereign states.