EXPLANATORY STATEMENT
LEGISLATIVE INSTRUMENT
Issued by the
Australian Fisheries Management Authority
Fisheries Management Act 1991
Fisheries Management (Southern Bluefin Tuna Fishery Management Plan 1995) Temporary Order 2014 No. 1
Section 43 of the Fisheries Management Act 1991 (the Management Act) provides for the Australian Fisheries Management Authority (the Authority) to make a Temporary Order to enable quick action to deal with circumstances where urgent action is required for purposes related to the management of a fishery. An Order can be made if the Authority is satisfied that:
a) it is necessary to take action for the purpose of [managing a fishery];
b) the action contemplated is consistent with [the Authority’s] objectives; and
c) no other action is appropriate.
Pursuant to subsection 92(1) of the Fisheries Administration Act 1991 (the Administration Act), the Authority has delegated the powers and functions under section 43 of the Management Act to the Chief Executive Officer of the Authority.
By virtue of subsection 43(9) of the Management Act, if an order is inconsistent with a provision of a plan of management, or a fishing concession, the order overrides the provision and, to that extent, the provision has no effect.
The Fishery
The Southern Bluefin Tuna Fishery (the Fishery) includes all areas of the Australian Fishing Zone and Australian boats fishing on the High Seas. Southern Bluefin Tuna is the target species and the only species allowed to be taken in the Fishery. The Fishery is managed under the Southern Bluefin Tuna Fishery Management Plan 1995 (the Management Plan).
Management in the Fishery is through individually transferable quotas. Each year AFMA is required to set a National Catch Allocation which limits the total catch allowed in the fishery. Individuals in the fishery own Statutory Fishing Rights and the National Catch Allocation determines how much fish each Statutory Fishing Right is entitled to take.
The global Southern Bluefin Tuna Fishery is managed by the Commission for the Conservation of Southern Bluefin Tuna (CCSBT). Each year CCSBT sets a global total allowable catch (TAC) and allocates Australia a proportion of this total. AFMA is required to set the National Catch Allocation to be not in excess of this allocation.
Background to the Temporary Order
In October 2013, CCSBT agreed a global TAC for 2014 of 12,449t and an Australian allocation of 5,151t. CCSBT also decided an allocation for South Africa of 150t conditional on them acceding to CCSBT by 31 May 2014. CCSBT decided that, if South Africa did not accede to CCSBT by 31 May 2014, its allocation would remain at 40t and its remaining 110t would be apportioned to the other members based on their 2014 allocations. Under these circumstances Australia would receive an additional 42t.
Ultimately, South Africa did not accede to the CCSBT by the May 2014 deadline and, consequently, Australia now has a CCSBT allocation of 5,193t.
The Management Plan, and in particular Clause 17, does not allow a National Catch Allocation to be changed during a season after it has been set. The purpose of the Temporary Order is to give the AFMA Commission the ability to consider the additional CCSBT allocation to Australia and consistent with the objectives of the Management Act, to vary, remake or revoke the existing determination of Australia’s National Catch Allocation for the 2013-2014 and 2014-2015 seasons. A variation to the actual live weight value of a statutory fishing right for each season may also need to be made as a consequence of the new National Catch Allocation. As such, the Temporary Order also overrides subclause 18.8 of the Management Plan to permit the AFMA Commission to vary the existing determination for the 2013-2014 and 2014-2015 fishing seasons.
The Authority is satisfied that, because of the urgent nature of the matter to be addressed by the Order (e.g. taking advantage of time-limited additional quota) and the lengthy process of amending a fishery plan under section 20 of the Management Act there is no other appropriate action than the making of a Temporary Order.
The Order is consistent with the Authority’s legislative obligation to pursue its objectives as it gives the AFMA Commission the ability to consider the most up to date information and make the decision that best pursue the legislative objectives. Furthermore, it implements a decision made under an international agreement and, therefore, complies with Australia’s international obligations. Finally, the Temporary Order itself will not amend the National Catch Allocation and actual live weight value but facilitate the making of a new (or varied) determination by the Authority based on the most recent evidence and decision of the Commission. This will ensure the Authority complies with its obligation to have regard to the principle of ecologically sustainable development and maximise the net economic returns to the Australian community of the SBT fishery.
The measures imposed by this Temporary Order commence on the day after registration on the Federal Register of Legislative Instruments.
Consultation
Section 43 of the Management Act does not require the Authority to consult with the relevant Management Advisory Committee or provide any set period of notice prior to making a Temporary Order. However, the Temporary Order is being implemented so that the AFMA Commission can consider a direct request from the Australian Southern Bluefin Tuna Industry Association to change the National Catch Allocation.
Section 17 of the Legislative Instruments Act 2003 requires the relevant rule-maker to be satisfied that appropriate and reasonably practicable consultation has taken place, where a legislative instrument will, relevantly, have a direct, or a substantial indirect, effect on business. Section 18 of the Legislative Instruments Act 2003 provides that consultation may be unnecessary or inappropriate where enactment of the instrument is required as a matter of urgency, or the instrument is of a minor or machinery nature and does not substantially alter existing arrangements.
As the additional quota for Australia was only available if allocated prior to the end of the 2014 fishing season (1 November 2014) the enactment of this Temporary Order was a matter of urgency. Indeed the urgency of the situation was a precondition for making the Temporary Order under section 43 of the Management Act. As such, broad consultation would have been unnecessary or inappropriate as per subsection 18(2)(b) of the Legislative Instruments Act 2003. Moreover, this Temporary Order is of a machinery nature as it simply permits the Authority to put in place consequential legislative instruments, which have the effect of allocating additional quota for the 2013-2014 season without substantially altering existing arrangements or rights in the Fishery.
However, and despite the applicability of subsections 18(2)(a) and 18(2)(b) of the Legislative Instruments Act 2003 to this legislative instrument, consultation was undertaken with the Australian Southern Bluefin Tuna Industry Association prior to making this instrument. The Industry Association agreed to the re-determination of Australia’s National Catch Allocation for the 2013-14 season.
Regulation Impact Statement
The Office of Best Practice Regulation advised that a Regulation Impact Statement was not required for this legislative instrument (ID: 17760).
Statement of compatibility prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
The Authority has assessed that this Legislative Instrument is compatible with human rights. The Authority’s Statement of Compatibility is attached as a supporting document.
Terms of the Order
In general terms, this Temporary Order overrides the provision in clause 17 of the Management Plan which restricts the ability of the Authority to make a new determination or vary the National Catch Allocation determination for one or more fishing seasons. The Temporary Order also overrides clause 18 of the Management Plan, in particular subclause 18.8, to permit the Authority to vary the actual live weight value of a statutory fishing right for the 2013-2014 and 2014-2015 fishing seasons, a necessary consequence of any variation to the National Catch Allocation. Subclause 18.8 of the Management Plan relevantly provides that “AFMA must not determine more than 1 actual live weight value of a statutory fishing right for a seasons….”
Details of the Temporary Order are set out below:
Clause 1 provides the Order is to be cited as the Fisheries Management (Southern Bluefin Tuna Fishery Management Plan 1995) Temporary Order 2014 No. 1
Clause 2 provides that the Order commences on the day after registration on the Federal Register of Legislative Instruments and that it ceases on 30 November 2014. Under the Management Act a Temporary Order automatically ceases six months after it is issued, unless revoked earlier.
Clause 3 defines the terms used in the Order.
Clause 4 provides that clause 17 of the Management Plan has no effect. This has the effect of permitting the Authority to determine a new National Catch Allocation for the 2013-2014 and 2014-2015 seasons, or to vary the existing National Catch Allocation determination.
Clause 5 provides that clause 17, and in particular subclause 17.2B, of the Management Plan does not limit the circumstances in which the Authority can determine a new National Catch Allocation for the 2013-2014 and 2014-2015 seasons.
Clause 6 provides that clause 18, and in particular subclause 18.8, of the Management Plan does not prevent the Authority from varying the actual live weight value of a statutory fishing right for the 2013-2014 and 2014-2015 fishing season. This is a consequential step necessary to facilitate the allocation of the additional quota to existing fishing concession holders.
Clause 7 provides that, for the avoidance of doubt, the Authority is still bound to pursue the objectives set out in Part 1.2 of the Management Plan and sections 3 and 3A of the Management Act. These objectives include accountability to the fishing industry and the Australian community and implementing Australia’s obligations under international agreements.