Fisheries Management Regulations (Amendment) 1998 No. 24
EXPLANATORY STATEMENT
STATUTORY RULES 1999 No. 24
Issued by the authority of the Minister for Resources and Energy
Fisheries Management Act 1991
Fisheries Management Regulations (Amendment)
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.
Subsection 8(1) of the Act provides that the regulations may provide that, in relation to a specified area outside the Australian Fishing Zone (AFZ) the Act applies to:
* Australian citizens; and
* bodies corporate that are incorporated in Australia or carry on activities in Australia; and
* Australian boats; and
* persons on board Australian boats.
Subsection 8(2) provides that the Act so applies subject to any exceptions or modifications specified in the regulations, and subsection 8(3) provides that where a provision of the Act applies to such an area then, subject to the regulations, references in that provision to the AFZ are to be read as references to that area-
Section 4(1) of the Act defines a fishery as a class of activities by way of fishing, including activities identified by reference to amongst other things, an area of waters. Paragraph 4(4)(a) of the Act provides that for the purposes of the Act, in relation to a fishery or a managed fishery that is identified by reference to an area, a reference to activities in the fishery or in the managed fishery includes activities in that area.
Section 32(1) of the Act provides that the Australian Fisheries Management Authority (AFMA) may, upon application made in the approved form, grant to a person a fishing permit, authorising the use of a boat for fishing in a specified area of the AFZ or a specified fishery. Paragraph 168(2)(p) of the Act provides that regulations may be made prescribing short methods of reference to areas of the AFZ specified in the regulations and the purposes for which those methods of reference may be used.
The Fisheries Management Regulations (the principal Regulations) prescribe matters in support of the Act, including short methods of reference to fisheries managed by AFMA, and specified areas outside the AFZ to which the Act extends.
The Fisheries Management Regulations (Amendment) (the Regulations) amend the principal Regulations to deal with 3 matters:
the first matter involves the placement of the former Part 2 of the Regulations with anew Part 2 which concerns application of the Act to areas outside the AFZ and in which:
* all waters within 200 nautical miles of the territorial baselines by reference to which the territorial limits of the Australian Antarctic Territory are defined under international law and the area referred to in the Regulations as the high seas fishing zone continue to be areas outside the AFZ to which the Act extends;
* the application of the Act has been extended to that part of an area of waters in the vicinity of Heard Island and McDonald Islands known as Convention for the Conservation of Antarctic Marine Living Resources (Convention) sub-area 58.5.2 which lies outside the AFZ.
Australia is a signatory to the Convention, which establishes a Commission that, among other things, determines conservation measures to be applied to various areas within the area covered by the Convention. In 1996 and again in 1997 the Commission set a substantial total allowable catch for Patagonian toothfish in this area, most of which lies within the AFZ, which led to considerable interest by industry participants in conducting commercial fishing operations in the area.
In the past, operators wishing to gain access to the whole of this area were required to obtain a fishing concession from AFMA for that part of sub-area 58.5.2 within the AFZ, and, in addition, a licence under the Antarctic Marine Living Resources Conservation Act 1981 from the Australian Antarctic Division for that part of sub-area 58.5.2 which lies outside the AFZ Extending the Act to those parts of sub-area 58.5.2 which lie outside the AFZ has obviated the necessity for operators to obtain two separate authorisations, and has placed full responsibility for management of all commercial fishing within the area with a single government agency, AFMA.
* the application of the Act has also been extended to an area of waters in the Tasman Sea adjacent to the AFZ, being that part of an area known as the South Tasman Rise which lies outside the AFZ. The governments of Australia and New Zealand recently reached an understanding in relation to fisheries research and management in this area, in recognition, in particular, of the urgent need to establish conservation and management measures with respect to orange roughy stocks in the South Tasman Rise area. The understanding contemplated the development of fisheries management arrangements by AFMA for Australian operators in the South Tasman Rise, and the extension of the application of the Act to this area will enable AFMA to implement such measures.
* the second matter involves the inclusion of a reference to the South Tasman Rise Fishery as a fishery managed by AFMA listed in regulation 4B;
* the third matter involves the omission of the previous definition of the area of the Heard Island and McDonald Islands Fishery and its replacement with a new definition.
Details of the Regulations, which commenced on gazettal, are set out below:
Regulation .1 provides that the Regulations amend the principal Regulations.
Regulation 2 omits Part 2 (Application of the Act) and replaces it with a new Part 2 which concerns application of the Act to areas outside the AFZ.
* New regulation 4 provides that the Act applies to all waters within 200 nautical miles of the territorial baselines by reference to which the territorial limits of the Australian Antarctic Territory we defined under international law.
* New regulation 4AA provides that the Act applies to a defined area of waters referred to as the "high seas fishing zone". Subregulation 4AA(2) provides, however, that the Act does not apply in relation to the high seas fishing zone to any persons or boats that are not fishing Southern Bluefin Tuna or Northern Bluefin Tuna.
* New regulation 4AB provides that the Act applies to that part of an area of waters in the vicinity of Heard Island and McDonald Islands known as Convention for the Conservation of Antarctic Marine Living Resources sub-area 58.5.2 which lies outside the AFZ.
* New -regulation 4AC provides that the Act applies to an area of waters in the Tasman Sea adjacent to the AFZ, known as the South Tasman Rise.
Regulation 3 inserts a new paragraph 4B(ka) into the Principal Regulations, which defines the South Tasman Rise Fishery as being one of the fisheries managed by AFMA, being fishing activity engaged in in an area defined in Part 11A of Schedule 1A.
Regulation 4 omits Schedule 1A, Part 3A (Heard Island and McDonald Islands Fishery) and replaces it with a new Part 3A.
Regulation 5 inserts a new Part 11A in Schedule 1A, which contains a definition of the area of the South Tasman Rise Fishery.