Fisheries Management (Sedentary Organisms) Proclamation 2025

EXPLANATORY STATEMENT

Issued by Authority of the Minister for Agriculture, Fisheries and Forestry

Fisheries Management Act 1991

Legislative Authority

The Fisheries Management Act 1991 (the Act) provides the legislative framework governing the management of Commonwealth fisheries. The Act includes the objectives that guide fisheries management arrangements, a requirement to hold fishing concessions in order to be allowed to fish, and the surveillance and enforcement powers available to the Commonwealth, through the Australian Fisheries Management Authority (AFMA), in ensuring compliance with the Act.

Subsection 12(1) of the Act provides that the Governor‑General may, by Proclamation, declare a marine organism to be a sedentary organism to which the Act applies if the Governor-General is satisfied that a marine organism is, for the purposes of international law, part of the living natural resources of the Australian continental shelf because it is, for the purposes of international law, an organism belonging to a sedentary species. In accordance with Article 77(4) of the United Nations Convention on the Law of the Sea, sedentary organisms are organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or subsoil.

The Governor-General was satisfied of the matters required under subsection 12(1) of the Act on the recommendation of the Minister for Agriculture, Fisheries and Forestry who was satisfied that each of the marine organisms listed in the Proclamation is, for the purposes of international law, part of the living natural resources of the Australian continental shelf because it is, for the purposes of international law, an organism belonging to a sedentary species.

Subsection 33(3) of the Acts Interpretation Act 1901 provides that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws) the power is construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend or vary any such instrument.

Purpose

The purpose of the Fisheries Management (Sedentary Organisms) Proclamation 2025 (the Proclamation) is to repeal and replace the Fisheries Management (Sedentary Organisms) Proclamation 2015 (the previous Proclamation). The Proclamation provides for an updated list of sedentary organisms that reflects contemporary scientific understanding of the sedentary species known to exist on Australia’s extended continental shelf.

Background

The Australian Fishing Zone (AFZ) is defined under section 4 of the Act to means the waters adjacent to Australia within the outer limits of the exclusive economic zone adjacent to the coast of Australia, and the waters adjacent to each external territory within the outer limits of the exclusive economic zone adjacent to the coast of the external territory.

Subsection 12(1) of the Act provides the legislative authority for making the Proclamation. Subsections 12(2) and 12(3) of the Act extend certain provisions of the Act, and the relevant provisions of the regulations, that relate to fishing in the AFZ or a fishery, to fishing for sedentary organisms, in or on any part of the Australian continental shelf not within the AFZ or the fishery as if they were within the AFZ or the fishery. This includes, but is not limited to, the granting of fishing concessions, scientific permits and foreign master fishing licences, the prohibition or regulation of fishing and the powers of officers under the Act.

Subsection 7(2) of the Act provides that the provisions of the Act related to the AFZ and to fishing for sedentary organisms outside the AFZ, apply to all persons, including foreigners, and to all boats, including foreign boats.

The Proclamation applies to all of Australia’s continental shelf including the ‘extended continental shelf’ that extends beyond Australia’s exclusive economic zone, as proclaimed in the Seas and Submerged Lands (Limits of Continental Shelf) Proclamation 2012.

Impact and Effect

The effect of subsections 12(2) and 12(3) of the Act is that fishing for the sedentary organisms declared in the Proclamation is prohibited unless otherwise authorised by a fishing concession, scientific permit or a foreign master fishing licence issued under the Act. If the provisions of the Act (other than Part 5), or the regulations, make provision for matters related to fishing in the AFZ or a fishery, to the extent it is capable of doing so, they extend to fishing for sedentary organisms, in or on any part of the Australian continental shelf not within the AFZ or the fishery as if they were within the AFZ or the fishery.

The Proclamation allows AFMA to continue to manage the exploitation of the declared sedentary organisms in the same way that it manages the exploitation of Commonwealth fisheries resources more broadly, consistent with the objectives of the Act. Specifically, the Proclamation will allow AFMA to continue to manage exploitation of sedentary organisms on Australia’s extended continental shelf, such as for example sea cucumbers (phylum Echinodermata, class Holothuroidea), through enforcement and compliance activities permitted under the Act.

The Proclamation maintains current arrangements by ensuring that certain provisions of the Act continue to apply to sedentary organisms. The declared sedentary organisms are not commonly targeted by the Australian fishing industry and as mentioned above, any future fishing activities in relation to those organisms would be managed in the same way that the Commonwealth manages other fisheries resources. As such, the continued declaration of those organisms will not have any adverse impacts on the industry.

Consultation

The Proclamation was developed in consultation with AFMA.

The following federal government agencies, including experts within those agencies were consulted on the development of the Proclamation:

the Department of Climate Change, Energy, the Environment and Water, including the Australian Antarctic Division and Australian Marine Parks;
the Department of Foreign Affairs and Trade;
Geoscience Australia;
the Commonwealth Scientific and Industrial Research Organisation;
the Director of National Parks (Parks Australia); and
the Office of International Law within the Attorney-General’s Department.

It was not appropriate or reasonably practicable to consult holders of fishing concessions, Resource Assessment Groups or Management Advisory Committees, because the Proclamation does not change management arrangements or inhibit access to fisheries resources in any managed fishery. Current arrangements in relation to any permit or concession granted in relation to the sedentary species listed in the Proclamation continue in force following commencement of the Proclamation. Further to this, AFMA has not issued any concessions or licences in relation to the organisms that are affected by the changes in the Proclamation.

Consultation with other affected persons was also not appropriate or reasonably practicable because it is not possible to identify, for the purposes of consultation, potential fishers who will knowingly fish, or seek to fish, without concessions or permits for sedentary organisms on Australia’s continental shelf contrary to the Act.

Details/ Operation

The Proclamation is a legislative instrument for the purposes of the Legislation Act 2003.

The Proclamation will commence the day after it is registered on the Federal Register of Legislation.

Details of the Proclamation are set out in Attachment A.

Other

The Proclamation is compatible with the human rights and freedoms recognised or declared under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. A full Statement of Compatibility with Human Rights is set out in Attachment B.

Attachment A

Details of the Fisheries Management (Sedentary Organisms) Proclamation 2025

Section 1 – Name

This section specifies that the name of the instrument is the Fisheries Management (Sedentary Organisms) Proclamation 2025 (the Proclamation).

Section 2 – Commencement

Subsection 2(1) provides that each provision of the Proclamation specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Item 1 in the table provides that the whole of the instrument commences on the day after the instrument is registered.

The note below the table provides that the table relates only to the provisions of the Proclamation as originally made. It will not be amended to deal with later amendments of the Proclamation. The purpose of this note is to explain that the commencement of any later amendments is not reflected in this table.

Subsection 2(2) provides that any information in column 3 of the table is not part of the instrument. Information may be inserted in this column, or information in it may be edited, in any published version of the Proclamation.

This section has the effect that the whole of the Proclamation commences on the day after the instrument is registered on the Federal Register of Legislation.

Section 3 – Authority

This section specifies that the Proclamation is made under the Fisheries Management Act 1991.

Section 4 – Schedules

This section is the enabling provision for Schedule 1 to the Proclamation and specifies that each instrument that is specified in a Schedule is amended or repealed as set out in the applicable items in the Schedule concerned, and that any other item in the Schedule has effect according to its terms.

Section 5 – Definitions

This section provides that in the Proclamation, ‘Act’ means the Fisheries Management Act 1991.

Section 6 – Sedentary Organisms to which the Act applies—animals

This section sets out, for the purposes of subsection 12(1) of the Act, a provision and table declaring organisms, or categories of organisms, to be sedentary organisms to which the Act applies, by reference to their scientific classification (by phylum, associated sub-categories and/or life stage).

The Proclamation includes several terms that are used to classify groups of organisms that should be understood by reference to their scientific meaning in the study of Biology. For example, section 6 of the Proclamation which relates to animals, uses the term “phylum” which is a taxonomic rank below “kingdom” and above “class”.

Subsection 6(1) of the Proclamation specifies that an organism is a sedentary organism to which the Act applies if it:

belongs to a phylum specified in column 1 of an item of the table; and
belongs to one of the sub-categories of phylum (if specified in column 2 of that item); and
is in the life stage specified in column 3 of that item for the phylum or the sub-category to which the phylum belongs (if a life stage is specified for that item).

The list of organisms (that are marine animals) contained in the table under subsection 6(1) in the Proclamation would reflect contemporary understanding of the sedentary organisms known to exist on Australia’s extended continental shelf based on current scientific and technical information.

Due to changes in different organisms across their lifespans, and where an organism is harvested across multiple stages of their lifespan, some organisms are only considered to be ‘sedentary species’ during specific phases of their lifespan. Where this level of detail is relevant it has been specified in column 3 of the table. For example, where an organism is only sedentary during its adult phase, this detail has been specified in the Proclamation (see table item 1).

Subsection 6(2) of the Proclamation specifies that an organism covered by item 15 of the table under subsection 6(1) is only a sedentary organism to which the Act applies where the organism is attached to the substrate. Class Ascidiacea (sea squirts) of Subphylum Tunicata specified in column 2 of table item 15 are only considered to be a sedentary species once they are attached to the substrate (the material that makes up the ocean floor). These organisms are attached to the substrate for part of their larval and adult stage.

Section 7 – Sedentary Organisms to which the Act applies—plants

This section sets out, for the purposes of subsection 12(1) of the Act, a provision and table declaring organisms, or categories of organisms, to be sedentary organisms to which the Act applies, by reference to their scientific classification (either by their phylum only or by phylum and any associated subcategories). Accordingly, an organism would be a sedentary organism to which the Act applies if it belongs to:

a division in column 1 of an item of the table in section 7 of the Proclamation, and
one or more sub-categories (if one or more sub-categories of the division is specified in column 2 of that item).

The list of organisms (that are marine plants) in the Proclamation reflects contemporary understanding of the sedentary organisms known to exist on Australia’s extended continental shelf based on current scientific and technical information.

The Proclamation includes several terms that are used to classify groups of organisms that should be understood by reference to their scientific meaning in the study of Biology. Section 7 of the Proclamation which relates to plants, uses the term “division”, which is the equivalent of “phylum” in animals and ranks below “kingdom” and above all lower taxa (such as “order”, “class” and “family”).

Schedule 1 – Repeals

Fisheries Management (Sedentary Organisms) Proclamation 2015

Item [1] – The whole of the Proclamation

This item has the effect of repealing the Fisheries Management (Sedentary Organisms) Proclamation 2015 (the previous Proclamation), which is replaced by the Proclamation at the same time as the repeal of the previous Proclamation on the day after registration.

Attachment B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Fisheries Management (Sedentary Organisms) Proclamation 2025

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

The Fisheries Management (Sedentary Organisms) Proclamation 2025 (the Legislative Instrument) repeals and replaces the Fisheries Management (Sedentary Organisms) Proclamation 2015. Subsection 12(1) of the Fisheries Management Act 1991 (the Act) allows the Governor-General, by Proclamation, to declare an organism to be a sedentary species to which the Act applies where the Governor-General is satisfied that a marine organism is, for the purposes of international law, part of the living natural resources of the Australian continental shelf because it is, for the purposes of international law, an organism belonging to a sedentary species.

Article 77(4) of the United Nations Convention on the Law of the Sea, provides that sedentary organisms are organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or subsoil.

The Legislative Instrument maintains current arrangements by ensuring that the Act continues to apply to sedentary organisms.

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.

The Hon Julie Collins MP

Minister for Agriculture, Fisheries and Forestry

Administered by Department of Agriculture, Fisheries and Forestry

Interactions

Legislation content

Interactions

Authorises

All Versions