EXPLANATORY STATEMENT
LEGISLATIVE INSTRUMENT
Issued by the Authority of the Australian Fisheries Management Authority
Fisheries Management Act 1991
Fisheries Management (Southern Bluefin Tuna Management Plan) Temporary Order 2009
The Fisheries Management (Southern Bluefin Tuna Management Plan) Temporary Order 2009 (the Temporary Order) is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Subsection 43(2) of the Fisheries Management Act 1991 (the FM Act) provides that:
If AFMA is satisfied that:
(a) it is necessary to take action for the purpose of this section; and
(b) the action contemplated is consistent with AFMA’s objectives; and
(c) no other action is appropriate;
AFMA may make an order, consistent with this Act and the regulations, with respect to:
(d) any matter directly or indirectly connected with fishing:
(i) in a managed fishery; or
(ii) in the AFZ but not in a managed fishery; or
(iii) that is the subject of an international agreement and occurs outside the AFZ; or
(e) any other matter relating to a managed fishery, being a matter that may be provided for by a plan of management; or
(f) any incidental matter.
The Commission for the Conservation of Southern Bluefin Tuna meets on 20th to 23rd October 2009 and will then determine Australia’s Southern Bluefin Tuna national quota allocation after which AFMA, under the Southern Bluefin Tuna Management Plan 1995 section 18.3(a), must determine, then calculate and publish the actual live weight value for each SFR (or determine and publish an interim live weight value). Because AFMA Commissioners will only then meet on 30th October 2009, AFMA cannot formally determine and then publish before the mandated 30 days prior to the commencement of the season on 1st December 2009.
Accordingly this anomalous situation can only be rectified this year by requiring interim or live weight values to be published later but still be published before the start of the season.
The Temporary Order commences on the day after registration in the Federal Register of Legislation Instruments.
Details of the Temporary Order are set out below:
Paragraph 1
Paragraph 1 provides for the name of the declaration to be the Fisheries Management (Southern Bluefin Tuna Management Plan) Temporary Order 2009.
Paragraph 2
Paragraph 2 provides that the declaration commences on the day after it is registered on the Federal Register of Legislative Instruments.
Paragraph 3
Paragraph 3 provides the basis for the making of the order as is required by s43(2)(a) (b) and (c) of the Act
Paragraph 4
Paragraph 4 alters sub-paragraph 18.3 of the Plan of Management, requiring the calculation and publication of interim or actual live weight values for SFRs to take place, 14 days before the season commences on 1st December 2009 in lieu of the currently mandated 30 days.
Overview
The Fisheries Management (Southern Bluefin Tuna Management Plan) Temporary Order 2009 was enacted to address the specific logistical challenges posed by the timing of quota allocations and the publication of live weight values for Southern Bluefin Tuna. This legislative instrument was issued by the Australian Fisheries Management Authority (AFMA) under the authority of the Fisheries Management Act 1991. The problem it was designed to solve involved the inability of AFMA to meet the statutory requirement to publish live weight values for Southern Bluefin Tuna within the mandated 30 days prior to the fishing season commencement due to the timing of the Commission for the Conservation of Southern Bluefin Tuna's meeting. Consequently, the policy objective of the Temporary Order was to enable the interim or actual live weight values to be published within a feasible timeframe, ensuring compliance with the management plan while accommodating the schedule of the relevant international commission.
Scope and Application
The Fisheries Management (Southern Bluefin Tuna Management Plan) Temporary Order 2009 applies to the Southern Bluefin Tuna (SBT) fishery, specifically targeting the management and regulation of the fishing activities concerning SBT within Australia's jurisdiction. This legislative instrument is enacted by the Australian Fisheries Management Authority (AFMA) under the authority granted by the Fisheries Management Act 1991. It is designed to address a specific administrative anomaly that prevents the timely publication of live weight values for SBT, which are essential for the management of the fishery. The Order applies to any person or entity involved in fishing activities for SBT within Australia's fishing zone, including those operating under the Southern Bluefin Tuna Management Plan 1995. The geographic scope of this Order is limited to Australian waters, including the Australian Fishing Zone, and does not extend to international waters unless relevant to Australian management plans or international agreements. This Temporary Order is effective from the day following its registration in the Federal Register of Legislation Instruments and is subject to the overarching provisions of the Fisheries Management Act 1991 and the Southern Bluefin Tuna Management Plan 1995. The Order does not create any new substantive rights or obligations beyond the scope of the existing plans and acts but provides a temporary adjustment to address the identified issue.
Key Provisions
The main operative sections of the Fisheries Management (Southern Bluefin Tuna Management Plan) Temporary Order 2009 (paragraphs 1-4) establish the name of the order (paragraph 1), its commencement date (paragraph 2), the basis for its creation under section 43(2)(a)-(c) of the Fisheries Management Act 1991 (paragraph 3), and the modification of sub-paragraph 18.3 of the Southern Bluefin Tuna Management Plan 1995 (paragraph 4). Specifically, paragraph 4 mandates that interim or actual live weight values for Southern Bluefin Tuna be calculated and published 14 days before the fishing season commences on 1 December 2009, in contrast to the usual 30-day requirement. This adjustment is necessary due to the timing of the Commission for the Conservation of Southern Bluefin Tuna meeting and the subsequent AFMA Commissioners meeting.
Under this Temporary Order, the Australian Fisheries Management Authority (AFMA) is required to calculate and publish interim or actual live weight values for Southern Bluefin Tuna 14 days before the fishing season starts, rather than the standard 30 days. This obligation is set out to ensure compliance with the Southern Bluefin Tuna Management Plan 1995 while accommodating the logistical constraints imposed by the timing of relevant meetings. AFMA must ensure that these values are determined and published within the specified timeframe to maintain the integrity of the management plan.
Breach of the requirements set forth in this Temporary Order could potentially lead to non-compliance with the Southern Bluefin Tuna Management Plan 1995, which may have legal and regulatory repercussions. While the Temporary Order itself does not explicitly state offences, penalties, or consequences for breach, any failure to adhere to the mandated timelines or the modified calculation and publication requirements could be considered a breach of the underlying management plan. This might result in enforcement actions under the Fisheries Management Act 1991 or other relevant legislation, including potential administrative or civil penalties.
In summary, the Fisheries Management (Southern Bluefin Tuna Management Plan) Temporary Order 2009 modifies the timeframe for calculating and publishing live weight values for Southern Bluefin Tuna, imposes specific obligations on AFMA to comply with this timeframe, and leaves potential enforcement actions under broader fisheries legislation.