EXPLANATORY STATEMENT
LEGISLATIVE INSTRUMENT
Issued by the Authority of the
Australian Fisheries Management Authority
Fisheries Management Act 1991
Fisheries Management (Multiple Fishery Closures) Direction 2024
Purpose and operation of the instrument
The Fisheries Management (Multiple Fishery Closures) Direction 2024 (the Direction) closes two area of waters, that fall within the Western Skipjack Fishery (WSF) and Western Tuna and Billfish Fishery (WTBF), to all methods of fishing.
The Direction replaces, without significant changes, the Multiple Fishery (Closures) Direction No. 1 2014 which sunsets on 30 April 2024.
The purpose of the closures is to ensure Australia acts in accordance with the terms of a number of international arrangements established between Australia and Indonesia.
Legislative Authority
The Direction is a legislative instrument for the purposes of the Legislation Act 2003. The Direction is made under subsection 41A(2) of the Fisheries Management Act 1991 (Management Act).
Subsection 41A(2) of the Management Act provides that the Australian Fisheries Management Authority (the Authority) may, after consultation with the management advisory committee for the fishery; or if there is no management advisory committee, the holders of fishing concessions in the fishery, direct that fishing is not to be engaged in in the fishery, or a particular part of the fishery, during a particular period or periods.
The Fisheries
The fisheries relevant to the closures are the WSF and WTBF. The two fisheries cover the same area of waters, westward from Cape York Peninsula (142°30’E) off Queensland to 34°S off the west coast of Western Australia. It also extends eastward from 34°S off the west coast of Western Australia, across the Great Australian Bight to 141°E at the South Australian/Victorian border. The area of the two fisheries encompasses a substantial part of the waters within the Australian Fishing Zone. The fisheries operate in both Commonwealth and state waters under complex jurisdictional arrangements, due to different Offshore Constitutional Settlement arrangements with each state.
The WSF is managed under input controls limiting the number of boats that operate in that fishery, as well as gear restrictions. The WTBF is managed under the Western Tuna and Billfish Fishery Management Plan 2005, in force under section 17 of the Management Act, mainly through output controls in the form of Total Allowable Catch limits set under the Commonwealth Fisheries Harvest Strategy Policy and the specific fishery Harvest Strategy Framework. Input controls used include a limit on the number of boats that operate in the WTBF, as well as gear restrictions.
The Direction
The Direction closes two area of waters that fall within the two fisheries, as specified in the Direction, to all methods of fishing.
The jurisdictional arrangements in place off the Northwest coast of Australia are complex. A range of arrangements have been agreed between Australia and Indonesia and to establish the maritime boundaries between the two countries. Although not all the arrangements are in force, Australia has been acting in accordance with the terms of these arrangements. The arrangements include:
- Agreement between the Government of the Commonwealth of Australia and the Government of the Republic of Indonesia, establishing Certain Seabed Boundaries, done at Canberra on 18 May 1971 (1971 Seabed Treaty).
Note: The Agreement is in Australian Treaty Series 1973 No. 31 ([1973] ATS 31) and could in 2024 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
2. Agreement between the Government of the Commonwealth of Australia and the Government of the Republic of Indonesia, establishing Certain Seabed Boundaries in the Area of the Timor and Arafura Seas, supplementary to the Agreement of 18 May 1971 (1972 Seabed Agreement) (1972 Seabed Treaty).
Note: The Agreement is in Australian Treaty Series 1973 No. 32 ([1973] ATS 32) and could in 2024 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
3. Treaty between the Government of Australia and the Government of the Republic of Indonesia establishing an Exclusive Economic Zone Boundary and Certain Seabed Boundaries (Perth, 14 March 1997) (1997 Perth Treaty) – not yet in force.
Note: The Treaty is in Australian Treaty Not Yet in Force 1997 No. 4 ([1997] ATNIF 4) and could in 2024 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
4. Memorandum of Understanding between the Government of the Republic of Indonesian and the Government of Australia concerning the Implementation of a Provisional Fisheries Surveillance and Enforcement arrangement, dated 29 October 1981 (MOU).
Note: The MOU could in 2024 be viewed on the Internet via this link https://maritimeindex.org/legal-document/indonesia-australia-memorandum-of-understanding-concerning-the-implementation-of-a-provisional-fisheries-surveillance-and-enforcement-arrangement-timor-sea/
The 1971 and 1972 Seabed Treaties established the seabed boundaries in the area of the Timor and Arafura Seas. The 1997 Perth Treaty finalised three maritime boundaries: (i) the exclusive economic zone (EEZ) and seabed boundary between Christmas Island and Java; (ii) the western extension of the seabed boundary between Australia and Indonesia; and (iii) the EEZ boundary between Australia and Indonesia.
The EEZ boundary established by the 1997 Perth Treaty follows the Provisional Fisheries Surveillance and Enforcement Line (PFSEL) (although the PFSEL stops at longitude 140°E) established by the MOU.
The two fisheries; and the limit of Australia’s EEZ proclaimed under section 10B of the Seas and Submerged Lands Act 1973 diverge substantially north from the PFSEL and the 1997 Perth Treaty EEZ boundary. This is to maintain Australia’s formal claim to a more northerly EEZ boundary until the 1997 Perth Treaty enters into force. However, in practice, Australia and Indonesia have been acting in accordance with the terms of the 1997 Perth Treaty and MOU as follows:
- In the North-Western Australia area, which is north of both the agreed EEZ boundary and the PFSEL, Australia only exercises seabed jurisdiction, while Indonesia has jurisdiction over swimming species, and
- In the Christmas Island area, which is north of the agreed EEZ boundary, Indonesia exercises jurisdiction over both the swimming and sedentary species.
The Management Act defines the Australian Fishing Zone (AFZ) to include the waters adjacent to Australia extending from 3 nautical miles to the outer limits of the EEZ. Therefore, the AFZ currently includes both the North-Western Australia area and the Christmas Island area.
In summary, although the two area of waters closed by the Direction are within Australia’s EEZ, to ensure Australian acts consistently with the terms of the 1997 Perth Treaty and MOU, the Direction prohibits fishing in the two areas of waters specified.
Consultation
In accordance with subsection 41A(2) of the Management Act, the Authority consulted with the Tropical Tuna Management Advisory Committee (the Committee) on the contents of the Direction. The Committee raised no objections to the Direction.
The Committee is composed of permanent members representing key stakeholders in the two fisheries including recreational fishing, commercial fishing industry and scientific members. The Committee advises AFMA on management arrangements, fishery operations, and reports on scientific, economic, and environmental aspects related to fish stocks and the impact of fishing activities. Non-members, such as invited participants and observers, also contribute relevant advice to the Committee.
Regulation Impact Statement
The Office of Impact Analysis (OIA) was consulted regarding the requirement of an Impact Analysis. The OIA assessed the Multiple Fishery (Closures) Direction No. 1 2014, in its operation, to have more than a minor impact. Accordingly, a self-assessment was performed, and it was determined the Multiple Fishery (Closures) Direction No. 1 2014 was operating efficiently and effectively. This involved stakeholder consultation and a regulatory costing analysis, which indicated no change. A letter certified by the Authority’s Chief Executive Officer, outlining the assessment is published on the OIA’s website. The OIA reference is OIA23-05361.
Details of Direction
Details of the Direction are set out in Attachment A.
Statement of compatibility prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Pursuant to Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, the Authority assesses that the Direction is compatible with human rights. The Authority’s Statement of Compatibility is attached as Attachment B.
ATTACHMENT A
Details of the Fisheries Management (Multiple Fishery Closures) Direction 2024
Section 1 | Provides the name of the Direction is the Fisheries Management (Multiple Fishery Closures) Direction 2024. |
Section 2 | Provides the Direction commences 30 April 2024. |
Section 3 | Provides the Direction is made under subsection 41A(2) of the Fisheries Management Act 1991. |
Section 4 | Provides definitions for the Direction as follows: Australian Fishing Zone means: a) the waters adjacent to Australia within the outer limits of the exclusive economic zone adjacent to the coast of Australia; and b) the waters adjacent to each external territory within the outer limits of the exclusive economic zone adjacent to the coast of the external Territory;
but does not include:
c) coastal waters of, or waters within the limits of, a State or internal Territory; or d) waters that are excepted waters. fishing means: a) searching for, or taking, fish; or b) attempting to search for, or take, fish; or c) engaging in any other activities that can reasonably be expected to result in the locating, or taking, of fish; or d) placing, searching for or recovering fish aggregating devices or associated electronic equipment such as radio beacons; or e) any operations at sea directly in support of, or in preparation for, any activity described in this definition; or f) aircraft use relating to any activity described in this definition except flights in emergencies involving the health or safety of crew members or the safety of a boat; or g) the processing, carrying or transhipping of fish that have been taken.
|
Section 5 | Provides each instrument specified in a Schedule to the Direction is amended or repealed. |
Section 6 | Provides the Direction applies to persons who is permitted to engage in in fishing (however described) in the Western Tuna and Billfish Fishery and Western Skipjack Fishery. |
Section 7 | Prohibits fishing the areas specified in Annexure A and Annexure B. |
Section 8 | Subsection 8(1) provides that, except as otherwise indicated, the geographic coordinates in the Direction are expressed in terms of the Geocentric Datum of Australia 1994 (known as GDA94). Subsection 8(2) also provides that if a reference is made in the Direction to WGS84, this is a reference to the World Geodetic System 1984. WGS84 is the global equivalent of GDA94. Subsection 8(3) provides that GDA94 and WGS84 are taken to be equivalent in the Direction. |
Schedule 1 | Item 1 repeals the Multiple Fishery (Closures) Direction No. 1 2014. |
Annexure A | Describe the area of closure in the vicinity of the North-West Shelf. |
Annexure B | Describe the area of closure in the vicinity of Christmas Island. |
ATTCHMENT B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Fisheries Management (Multiple Fishery Closures) Direction 2024
Overview of the Legislative Instrument
The Fisheries Management (Multiple Fishery Closures) Direction 2024 (the Direction) closes two area of waters, that fall within the Western Skipjack Fishery and Western Tuna and Billfish Fishery, to all methods of fishing.
The Direction replaces, without significant changes, the Multiple Fishery (Closures) Direction No. 1 2014 which sunsets on 30 April 2024.
The purpose of the closures is to ensure Australia acts in accordance with the terms of several international arrangements established between Australia and Indonesia.
The Direction is made under subsection 41A(2) of the Fisheries Management Act 1991 and it is a legislative instrument for the purposes of the Legislation Act 2003.
Human rights implications
This legislative instrument does not engage any of the applicable rights or freedoms.
Conclusion
This legislative instrument is compatible with human rights as it does not raise any human rights issues.