Fisheries Management Amendment Regulations 2001 (No. 4) 2001 No. 302
EXPLANATORY STATEMENT
STATUTORY RULES 2001 No. 302
Issued by the authority of the Minister for Forestry and Conservation
Fisheries Management Act 1991
Fisheries Management Amendment Regulations 2001 (No. 4)
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. Paragraph 168(2)(e)(ii) of the Act provides that regulations may be made to effect the imposition and recovery of fees in respect of the making of applications under the Act,
Section 94 of the Act provides that the Australian Fisheries Management Authority (AFMA) may grant to a person a port permit authorising the person, or a person acting on their behalf, to bring a specified foreign fishing vessel in respect of which a foreign fishing licence is not in force, from a point outside the AFZ to a specified port in Australia and then back to the high seas. Paragraph 94(4)(d) provides that permit is authority for entry to the specified port on such number of occasions as is specified in the permit.
Regulation 21 of the Fisheries Management Regulations 1992 (the principal Regulations) provides that prescribed fees are payable in respect of the matters set out in Schedule 2. These matters include the making of an application for a fishing permit.
The purpose of the Fisheries Management Amendment Regulations (the Regulations) is to insert a new item 16 into Schedule 2 of the principal Regulations to allow for the collection of fees in relation to the making of an application for a port permit. The Commonwealth has introduced guidelines which apply generally to foreign fishing vessels seeking port access. It is anticipated that an increased number of applications for these type of permits will be received by AFMA in the future, particularly by Japanese vessels following the negotiation of arrangements between Australia and Japan in relation to fishing for Southern Bluefin Tuna.
This proposed fee is payable in two instalments. The first instalment would be payable when the application is made and has been calculated to recover costs associated with the initial processing of the application. The second instalment is payable if AFMA. decides to grant the application and has been calculated to recover the administration costs associated with finalising the application. In particular, these costs include the costs of formalising arrangements with the relevant port authorities and other regulatory bodies. The second instalment is payable for each port entry requested in the application.
In practice, it is likely that payment for both instalments will be received together upon application, but that payment for the second instalment will not be processed by AFMA unless the application is approved.
The Regulations also provide that no fee is payable for an application for a port permit in respect of a foreign fishing boat that is engaged in fisheries research activities in collaboration with, or with an authority of, the Commonwealth, a State or Territory.
Details of the Regulations, which will commence on gazettal, are set out below.
Regulation 1 provides that the Regulations are named the Fisheries Management Amendment Regulations 2001 (No. 4).
Regulation 2 provides that the Regulations commence on gazettal.
Regulation 3 provides that Schedule 1 amends the Fisheries Management Regulations.
Schedule 1 Item 1 inserts a new subregulation 21(4) which provides that no fee is payable for a port permit application for a foreign fishing vessel where that vessel is engaged in fisheries research activities in collaboration with the Commonwealth, a State or a Territory, or an authority of the Commonwealth, State or Territory.
Schedule 1 Item 2 inserts a new item 16 into Schedule 2 of the principal Regulations which sets out the fees payable upon the making of an application for a port permit.
Overview
The Fisheries Management Amendment Regulations 2001 (No. 4) were enacted to amend the Fisheries Management Regulations 1992, as required under the Fisheries Management Act 1991. These regulations were introduced to address the need for a structured fee collection system for applications related to port permits for foreign fishing vessels, particularly in light of anticipated increased applications following arrangements with Japan regarding Southern Bluefin Tuna fishing. The problem these regulations aimed to solve was the lack of a formal fee structure for processing port permit applications, which was necessary to cover the costs associated with application processing and administration. Enacted by the Minister for Forestry and Conservation, the policy objective of these regulations was to ensure that the Australian Fisheries Management Authority (AFMA) could effectively manage the administrative costs related to the processing and approval of port permit applications by introducing a two-tiered fee system.
Scope and Application
The Fisheries Management Amendment Regulations 2001 (No. 4) apply to persons or entities making an application for a port permit under the Fisheries Management Act 1991, specifically targeting foreign fishing vessels that are not in possession of a foreign fishing licence, and are seeking to enter Australian waters. These regulations are designed to regulate the fees associated with such applications, with a particular focus on those vessels involved in commercial fishing activities, notably anticipated to include Japanese vessels fishing for Southern Bluefin Tuna following recent negotiations between Australia and Japan. The regulations establish a two-tiered fee structure to cover the costs associated with both the initial processing and the finalisation of the permit application, with an exemption for vessels engaged in fisheries research activities in collaboration with or under the authority of the Commonwealth, a state, or a territory. The regulations have a national jurisdictional reach across Australia, as they pertain to the operations of the Australian Fisheries Management Authority (AFMA) and the provisions of the Fisheries Management Act 1991. The regulations are subordinate to the primary Act, extending its application by prescribing detailed fee structures and exemptions that are not explicitly addressed in the Act itself. The amendments are intended to ensure that the regulatory framework remains responsive to evolving industry practices and international agreements.
Key Provisions
The Fisheries Management Amendment Regulations 2001 (No. 4) introduce significant changes to the existing framework for foreign fishing vessels seeking port access in Australia, as outlined in section 94 of the Fisheries Management Act 1991 (the Act) (s. 94). Specifically, Regulation 21 of the Fisheries Management Regulations 1992 is amended to include a new fee structure for applications for port permits for foreign fishing vessels. This fee structure is designed to ensure that costs associated with the processing and administration of such applications are appropriately recovered.
Under the new regulations, fees for port permit applications are payable in two instalments (Reg. 21(4)). The first instalment is due when the application is submitted and is intended to cover the costs of the initial processing of the application. The second instalment is payable if the Australian Fisheries Management Authority (AFMA) decides to grant the application, and it is calculated to cover the administrative costs associated with finalising the application, including the costs of coordinating with relevant port authorities and other regulatory bodies. Importantly, the second instalment is payable for each port entry requested in the application. Although both instalments may be submitted together upon application, the second instalment will only be processed if the application is approved.
In addition to the new fee structure, the Regulations also provide an exemption from the fee for foreign fishing vessels engaged in fisheries research activities in collaboration with, or under the authority of, the Commonwealth, a State or Territory (Schedule 1 Item 1). This exemption is intended to support and facilitate scientific research activities conducted in accordance with Australian regulations.
The Regulations impose specific obligations on parties seeking to bring a foreign fishing vessel into Australian waters. First, applicants must ensure that the appropriate fees are paid in accordance with the new fee structure, unless they qualify for the exemption under Schedule 1 Item 1. Second, applicants must provide all necessary information and documentation required by AFMA to process their application, including details of the vessel, the intended port entries, and any relevant research activities. Failure to comply with these obligations may result in the application being refused.
The Fisheries Management Amendment Regulations 2001 (No. 4) do not explicitly outline specific offences, penalties, or consequences for non-compliance. However, non-compliance with the regulations could potentially result in the refusal of the application for a port permit. This outcome would prevent the foreign fishing vessel from accessing Australian ports, which could have significant operational and economic consequences for the vessel owner. Furthermore, repeated non-compliance could lead to further regulatory action by AFMA, including potential investigations into the vessel’s activities and possible enforcement actions under the Fisheries Management Act 1991.