Fisheries Regulations (Amendment) 1993 No. 119
EXPLANATORY STATEMENT STATUTORY RULES 1993 No. 119
Issued by the Authority of the minister for Resources Fisheries Act 1952
Fisheries Regulations (Amendment)
Subsection 4(5) of the Fisheries Act 1952 (the Act) provided that an amendment to the Treaty on Fisheries Between the Governments of Certain Pacific Island States and the Government of the United States of America (the Treaty) would not have effect for the purposes of the Act unless Regulations were made declaring that the amendments had effect for the purposes of the Act. The Treaty formed the Schedule to the Act.
Subsection 17 (1) of the Act empowered the Governor-General to make regulations for the purposes of the Act.
The Act (other than part IVA of the Act) was repealed by subsection 3 (2) of the Fisheries Legislation (Consequential Provisions) Act 1991 (the Consequential Provisions Act). However, subsection 7(1) of the Consequential Provisions Act provides that the Act and instruments made or determined under the Act, including Regulations and plans of management, continue in force to the extent necessary for the continuing operation of Part IVA of the Act. This subsection is subject of the same two year sunset provision regarding Part IVA contained in subsection 7(3) of the Consequential Provisions Act. However, subsection 7(2) of the consequential Provisions Act provides that nothing in subsection 7(1) prevents, among other things, the amendment or variation of an instrument mentioned in subsection 7(1).
The consequence of the Act continuing for the purposes of Part IVA is that fisheries (or parts of fisheries) which are subject of agreements made under Part IVA, continue to be managed under the Act, instead of being managed under the Fisheries Management Act 1991 (the Management Act), until the sunset provisions of Consequential Provisions Act take effect. Fisheries that continue to be managed under the Act in this manner are known as "Part IVA fisheries".
Both the Act and the Management Act are currently in force and have application to tuna fisheries of relevance to the Treaty in Australian waters. For example, the East Coast Tuna Purse Seine Fishery, which is one of the fisheries affected by the proposed Regulations, is a fishery managed in part under the terms of an arrangement under Part IVA of the Act and in part under the Management Act. It therefore is necessary to ensure that the Treaty is amended in the same manner under both Acts. This will avoid inappropriate application of the Treaty and the Treaty being applied differently under each Act.
Australia is one of 16 parties to the Treaty which currently allows up to 50 US tuna purse seine vessels to operate in the Western Pacific, targeting skipjack and yellowfin tunas. The Treaty entered into force on 15 June 1988. Its financial provisions will expire on 15 June 1993. Amendments to the Treaty have been negotiated between Pacific Island Parties and the United States of America which provide for improved financial arrangements. The amendments also include modification to the Annexes detailing the terms and conditions under which US vessels obtain access.
The amendments to the Treaty will be in force for ten years and would be reviewed after five years. They include a lump sum of US$18 million per year, of which US$14 million is to be paid by the US Government and US$4 million is to be paid by US industry, and contain specific cost recovery provisions which will be paid in a lump sum. The number of vessels under the Treaty will increase from 50 to 55. The amendments also include new provisions requiring vessels to be marked in accordance with Food and Agriculture organisation guidelines, and specific provisions laying down reporting requirements for transshipment of catch.
The Treaty provides for US boats to have access to a portion of the East Coast Tuna Purse Seine Fishery (ECTPS fishery), known as the "US Treaty Access Area". The US Treaty Access Area is in a portion of the ECTPS fishery that is a Part IVA fishery. The amendments to the Treaty provide for modifications to the Annexes detailing terms and conditions under which US boats would be granted access.
As the ECTPS fishery is a Part IVA fishery, US boats desiring access to the US Treaty Access Area would need to be granted an authorisation (namely, a foreign fishing boat licence) under the Act to secure that access. In order to ensure that the access is secured on the terms and conditions that have been agreed under the amendments to the Treaty, it is necessary to amend the Treaty as it appears in the Schedule to the Act.
In approving Australian signature and ratification of the Treaty in 1987, the Government agreed that minor amendments to the Treaty should be approved by the minister responsible for fisheries matters. The amendments to the Treaty do not change policy or financial considerations from those approved by the Government when the Treaty came into force in 1987.
To implement the amendments to the Treaty and in accordance with subsection 4(5) of the Act, Regulations under section 17 of the Act are required. The Regulations cause the amendments to the Treaty to take effect for the purposes of the Act, and append the amendments as a new Schedule to the Fisheries Regulations.
It is intended that the Regulations take effect to coincide with Australia's notification of acceptance of the amended Treaty, and need to be in place no later than 15 June 1993 when the amended Treaty is to be signed.
Details of the proposed Regulations are as follows: Regulation 1 provides for citation of the Regulations.
Regulation 2_ provides for commencement of the amended Treaty.
Regulation 1 adds the text of the Treaty as a new Schedule.
The Schedule to the proposed Regulations sets out the amendments to the Treaty. The proposed Regulations will commence on Gazettal.