EXPLANATORY STATEMENT
Select Legislative Instrument 2005 No. 19
LEGISLATIVE INSTRUMENT
Issued by the authority of the Minister for Fisheries, Forestry and Conservation
Fisheries Management Act 1991
Fisheries Management Amendment Regulations 2005 (No. 1 )
The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Subsection 168(1) of the Fisheries Management Act 1991 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed, in carrying out or giving effect to the Act.
Following a spate of catches of endangered albatrosses off the east coast of Australia at the end of 2004, some north of the parallel of 30º South, the Australian Fisheries Management Authority (AFMA) has reviewed the provisions of the Fisheries Management Regulations 1992 (the Principal Regulations) in relation to the incidental catch of seabirds. These provisions are contained in Divisions 1 and 2 of Part 12 of the Principal Regulations (comprising Regulations 68 – 74 inclusive). Schedule 3D is also relevant, prescribing certain apparatus for the purposes of Divisions 1 and 2 of Part 12.
The bycatch mitigation practice which most effectively addresses catches of endangered albatrosses is currently prescribed and enforceable only in waters south of latitude 30º South. The practice can only be recommended for use in waters north of that latitude.
In order for AFMA to manage the issue of seabird bycatch more flexibly and responsively it is intended that the relevant measures prescribed by the Principal Regulations be incorporated, as required, as conditions to fishing permits granted under the Act. This will allow AFMA the flexibility to implement immediate mitigation measures when necessary, not only in southern waters, in order to counter the threat of longline fishing to seabirds. In so doing, AFMA Management will have the capacity to manage the issue of seabird bycatch with a far greater degree of responsiveness in accordance with available data and scientific advice.
The Regulations therefore omitted Divisions 1 and 2 of Part 12 and Schedule 3D to the Principal Regulations. The Regulations remove any ambiguity about the operation of the Principal Regulation and facilitate enforcement of bycatch mitigation practices `through uniformity of approach. They are not a prerequisite to the inclusion of measures as conditions in fishing permits.
The amendments have been endorsed by the Eastern Tuna Management Advisory Committee and a subset of the Threat Abatement Team, known informally as the Pelagic Bycatch Group. These groups include a wide range of representatives from Commonwealth and State Government Departments, non-government organisations, commercial industry and the recreational sector.
The Office of Regulation Review advised that a Regulation Impact Statement is not mandatory on the basis that the proposal is of a minor or machinery nature and does not substantially alter existing arrangements (ID 7078).
The Act does not specify any conditions as needing to be met before the power to make the proposed Regulations may be exercised.
Details of the Regulations, which are to commence on 1 March 2005, are set out below.
Regulation 1 provides for the Regulations to be cited as the Fisheries Management Amendment Regulations 2005 (No. 1)
Regulation 2 provides that the Regulations commence on 1 March 2005.
Regulation 3 provides that Schedule 1 amends the Principal Regulations.
Schedule 1 Item 1 omits Part 12, Divisions 1 and 2 of the Principal Regulations.
Schedule 1 Item 2 omits Schedule 3D of the Principal Regulations
Overview
The Fisheries Management Amendment Regulations 2005 (No. 1) were enacted to address the problem of endangered albatrosses being caught incidentally in commercial longline fishing operations off the east coast of Australia. These regulations were made under the authority of the Fisheries Management Act 1991 by the Australian Fisheries Management Authority (AFMA) to provide a more flexible and responsive approach to managing seabird bycatch. The regulations were designed to allow AFMA to incorporate relevant bycatch mitigation measures as conditions of fishing permits, thereby enhancing enforcement and ensuring a uniform approach. This amendment responds to the urgent need for improved seabird protection measures, particularly in areas north of latitude 30º South where such measures were previously only recommended. The changes were endorsed by key advisory committees and were deemed to be of a minor nature, not requiring a formal Regulation Impact Statement.
Scope and Application
The Fisheries Management Amendment Regulations 2005 (No. 1) amends the Fisheries Management Regulations 1992 under the authority of the Fisheries Management Act 1991. These regulations apply to all fishing activities within Australian waters, focusing on the management and mitigation of incidental seabird catches, particularly endangered albatrosses. The changes are designed to give the Australian Fisheries Management Authority (AFMA) the flexibility to implement effective bycatch mitigation measures both north and south of the 30º South latitude, addressing the heightened risk of seabird bycatch identified in recent fishing activities. By incorporating these measures as conditions in fishing permits, AFMA can more swiftly and effectively manage seabird bycatch in response to scientific data and advice. The regulatory changes are supported by various stakeholders, including Commonwealth and state government departments, non-government organisations, commercial fishing industries, and recreational sectors, ensuring a balanced approach to seabird conservation and sustainable fishing practices.
Key Provisions
The Fisheries Management Amendment Regulations 2005 (No. 1) primarily concern the removal of specific sections from the Fisheries Management Regulations 1992, which were previously governing the incidental catch of seabirds (Reg. 3). This includes the removal of Divisions 1 and 2 of Part 12, which previously prescribed certain measures to mitigate the bycatch of seabirds, and Schedule 3D, which specified certain apparatus related to these measures (Schedule 1, Items 1 and 2). These changes were made to provide the Australian Fisheries Management Authority (AFMA) with greater flexibility in managing seabird bycatch, particularly in response to incidents involving endangered albatrosses off the east coast of Australia.
The Regulations impose specific obligations on AFMA and fishing permit holders. AFMA is now tasked with the responsibility of implementing bycatch mitigation measures as conditions in fishing permits, rather than through the Principal Regulations (Reg. 3). This shift in responsibility means that AFMA can more readily adapt and respond to emerging threats to seabirds by tailoring conditions in fishing permits to the specific needs and data available at any given time. Fishing permit holders, on the other hand, must comply with any conditions set by AFMA that pertain to bycatch mitigation practices, ensuring they adhere to the most current and effective measures to protect endangered seabird species.
Violations of the conditions set in fishing permits under these Regulations may lead to various consequences. While the explanatory statement does not explicitly detail offences or penalties, it can be inferred that non-compliance with conditions prescribed by AFMA could result in administrative actions, such as the suspension or revocation of fishing permits. Further, as these conditions are designed to protect endangered species, there could be additional legal repercussions under other environmental protection legislation, including fines and potential imprisonment for serious breaches.
The Regulations also outline the commencement date, specifying that they come into effect on 1 March 2005 (Reg. 2). This commencement date is critical as it provides a clear timeframe within which AFMA and fishing permit holders must adjust to the new regulatory framework, ensuring a smooth transition and continued protection of seabird populations. By setting this date, the Regulations establish a definitive point at which the new measures take effect, thereby ensuring legal certainty and enabling all relevant parties to prepare accordingly.