Fisheries Management (Bass Strait Central Zone Scallop Fishery) Amendment Regulations 2004 (No. 1) 2004 No. 335
EXPLANATORY STATEMENT
STATUTORY RULES 2004 No. 335
Issued by the authority of the Minister for Fisheries, Forestry and Conservation
Fisheries Management Act 1991
Fisheries Management (Bass Strait Central Zone Scallop Fishery) Amendment Regulations 2004 (No. 1)
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. Paragraph 168(2)( c) provides that regulations may be made providing for giving effect to, and enforcing the observance of, plans of management.
Subsection 17(1) of the Act provides that the Australian Fisheries Management Authority (AFMA) is to determine plans of management for all fisheries. Under these provisions AFMA has determined the Bass Strait Central Zone Scallop Fishery Management Plan 2002 (the Plan).
Subsection 20(1) of the Act provides that AFMA may amend a plan of management. AFMA is currently amending the Plan and expects that the proposed amendments will commence on the date of their notification in the Gazette.
The Fisheries Management (Bass Strait Central Zone Scallop Fishery) Regulations 2002 (the Principal Regulations) complement the Plan and prescribe matters in support of the Act relevant to the fishery.
The purpose of the proposed Regulations is to omit certain provisions from the Principal Regulations so that those matters may be regulated through the Plan. This would afford AFMA the flexibility to more easily adjust the regulation of these matters as required.
The proposed Regulations omit regulation 4 and subregulations 10(2) to 10(4) from the Principal Regulations. Regulation 4 sets out the beginning and end dates of the fishing season for the fishery in each year. Subregulations 10(2) to 10(4) provide details of the circumstances under which AFMA must increase the Total Allowable Catch (TAC) for beds of commercial scallops in the fishery.
The omission of these provisions clears the way for AFMA's amendments to the Plan to have effect. The amended Plan allows AFMA to set the fishing season dates annually and set a smaller TAC each year. The TAC will also be able to be increased in a single increment each year rather than over three increments, as currently provided for by the Principal Regulations. The amended Plan also corrects a small error in the definition of the area of waters for the fishery and increase the minimum size limit of scallops from 80mm to 90mm from the start of the 2005 fishing season.
Details of the Regulations, which commenced on the date of their notification in the Gazette are set out below. This occurred on the same date as notification of the amendments to the Plan:
Regulation 1
Regulation 1 provides for the Regulations to be cited as the Fisheries Management (Bass Strait Central Zone Scallop Fishery) Amendment Regulations 2004 (No. 1).
Regulation 2
Regulation 2 provides that the Regulations commence on the date of their notification in the Gazette.
Regulation 3
Regulation 3 provides that Schedule 1 amends the principal Regulations.
Schedule 1 Item 1
Schedule 1 Item 1 omits Regulation 4
Schedule 1 Item 2
Schedule 1 Item 2 omits subregulations 10(2) to 10(4)
Overview
The Fisheries Management (Bass Strait Central Zone Scallop Fishery) Amendment Regulations 2004 (No. 1) were enacted to address the need for greater flexibility in the management of the Bass Strait Central Zone Scallop Fishery. The Regulations amend the existing Fisheries Management (Bass Strait Central Zone Scallop Fishery) Regulations 2002 by omitting certain provisions to allow for changes to be implemented through the Bass Strait Central Zone Scallop Fishery Management Plan 2002. This was achieved by removing the specific fishing season dates and the detailed conditions under which the Total Allowable Catch (TAC) for scallops could be increased. The Australian Fisheries Management Authority (AFMA) determined these changes to be necessary to enhance the management of the fishery, allowing for more dynamic adjustments in response to changing conditions and data. The policy objective is to provide AFMA with the flexibility to set annual fishing season dates, establish a smaller TAC annually, and correct a minor error in the definition of the fishery area while also increasing the minimum size limit of scallops from 80mm to 90mm.
Scope and Application
The Fisheries Management (Bass Strait Central Zone Scallop Fishery) Amendment Regulations 2004 (No. 1) applies to the Australian Fisheries Management Authority (AFMA), industry participants, and other relevant persons involved in the Bass Strait Central Zone Scallop Fishery. The Regulations amend the Fisheries Management (Bass Strait Central Zone Scallop Fishery) Regulations 2002, which complement the Bass Strait Central Zone Scallop Fishery Management Plan 2002, to provide regulatory flexibility for AFMA in managing the fishery. The purpose of the amendment is to allow AFMA to set the fishing season dates and the Total Allowable Catch (TAC) for the fishery annually through the Management Plan, rather than through the regulations. The Regulations omit specific provisions from the Principal Regulations, namely Regulation 4 and subregulations 10(2) to 10(4), thereby enabling the amended Plan to take effect. This allows AFMA to set the TAC in a single increment each year and increase the minimum size limit of scallops from 80mm to 90mm from the start of the 2005 fishing season. The Regulations, which commenced on the date of their notification in the Gazette, provide for the flexibility in the management of the fishery while ensuring the conservation and sustainable use of the fishery resources.
Key Provisions
The Fisheries Management (Bass Strait Central Zone Scallop Fishery) Amendment Regulations 2004 (No. 1) (the Regulations) primarily serve to omit specific provisions from the existing Fisheries Management (Bass Strait Central Zone Scallop Fishery) Regulations 2002 (the Principal Regulations) (Regulation 1, 2, 3). Specifically, Regulation 4, which dictates the annual fishing season dates for the fishery, and subregulations 10(2) to 10(4), which detail the circumstances under which the Australian Fisheries Management Authority (AFMA) must increase the Total Allowable Catch (TAC) for commercial scallops, have been removed (Schedule 1, Items 1 and 2). This amendment is designed to allow AFMA greater flexibility in managing the fishery by permitting the annual setting of fishing season dates and TAC through the Bass Strait Central Zone Scallop Fishery Management Plan 2002 (the Plan) rather than through regulation.
The Regulations impose several obligations on AFMA and other entities governed by the Fisheries Management Act 1991. Primarily, AFMA must now set the fishing season dates and TAC annually through the Plan, as opposed to adhering to fixed dates and multi-incremental TAC adjustments stipulated in the Principal Regulations (Schedule 1, Items 1 and 2). Additionally, AFMA must ensure that the Plan correctly defines the fishery area and accurately reflects the increased minimum scallop size limit from 80mm to 90mm, which will commence from the start of the 2005 fishing season. Compliance with these obligations is crucial for maintaining the sustainability and effective management of the fishery.
Breach of the provisions within the Fisheries Management (Bass Strait Central Zone Scallop Fishery) Amendment Regulations 2004 (No. 1) could result in various civil or criminal consequences. While the specific penalties for breaches of these Regulations are not detailed in the Explanatory Statement, violations of the Fisheries Management Act 1991 and its associated regulations typically incur fines and potential imprisonment. For example, under section 277 of the Act, a person who contravenes a regulation may be liable to a fine of up to $22,200 for an individual and up to $111,000 for a body corporate. In cases of serious or repeated breaches, the penalties could be more severe. Additionally, AFMA has the authority to take enforcement actions, such as issuing infringement notices or pursuing legal action against non-compliant parties. The precise penalties and consequences would depend on the nature and severity of the breach, as well as relevant jurisdictional laws.