EXPLANATORY STATEMENT
Issued by the authority of the Australian Fisheries Management Authority
Fisheries Management Act 1991
Heard Island and McDonald Islands Fishery Management Plan 2002
Heard Island and McDonald Islands Fishery (Total Allowable Catch) Determination 2018
Section 17 of the Fisheries Management Act 1991 (the Act) provides for the Australian Fisheries Management Authority (AFMA) to determine plans of management for a fishery.
Paragraph (aa) of subsection 17(6) of the Act provides that a plan of management may determine, or provide for AFMA to determine, the fishing capacity, for a fishery measured by that method or those methods, permitted for the fishery or a part of the fishery in respect of a particular period or periods.
Section 11 of the Heard Island and McDonald Islands Fishery Management Plan 2002 (the Plan) provides that AFMA must, before the beginning of each fishing year, determine the total allowable catch (TAC) and catch limits for each species of fish for the fishing year. ‘Fishing year’ is defined in the Plan as a period of 12 months beginning on 1 December in any year.
The instrument determines the TAC for target species and catch limits for other species in the fishery for the 2018/2019 season. The target species are Patagonian toothfish and Mackerel icefish.
Background
The Heard Island and McDonald Islands Fishery (the Fishery) includes external territories of Australia located in the Southern Indian Ocean about 4,000 km south-west of Perth. The islands lie within the Antarctic Convergence. The waters surrounding the islands out to 200 nautical miles are part of the Australian Fishing Zone which is managed by AFMA.
The Plan provides that access to the Fishery is limited to those operators holding Statutory Fishing Rights (SFRs) granted under the Plan.
SFRs granted under the Plan allow a quantity of Patagonian toothfish or Mackerel icefish to be taken in the Fishery. The weight allocated to an SFR for each target species for the fishing year is worked out by dividing the TAC for the species by the total number of SFRs in force for the species at the start of the fishing year.
Consultation
In determining the TACs AFMA must have regard to reference points for the species determined under section 10 of the Plan and consider the views of the Sub-Antarctic Fisheries Management Advisory Committee (SouthMAC) and the Sub-Antarctic Resource Assessment Group (SARAG).
The Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) prescribed the TACs and catch limits which were reviewed by SARAG and SouthMAC. SARAG and SouthMAC both provided TAC recommendations which were accepted by the AFMA Commission and are reflected in the Determination.
Regulation Impact Statement
The Office of Best Practice Regulation advised that a Regulation Impact Statement was not required for this Determination consistent with the agreement in place to cover all regulatory changes deemed to be of a minor or machinery nature (OBPR Carve Out number 14421).
Statement of compatibility prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
AFMA assesses under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 that this legislative instrument is compatible with human rights. AFMA’s Statement of Compatibility is attached as a supporting document.
Details of the Determination are set out below:
Clause 1 provides for the Determination to be cited as the Heard Island and McDonald Islands Fishery (Total Allowable Catch) Determination 2018.
Clause 2 provides that the Determination commences on the day after it is registered on the Federal Register of Legislation.
Clause 3 provides for the repeal of the Determination on 1 December 2019 unless earlier revoked.
Clause 4 provides that the Determination is made pursuant to section 17(6)(aa) of the Fisheries Management Act 1991 under Section 11 of the Heard Island and McDonald Islands Fishery Management Plan 2002.
Clause 5 defines the particular terms used in the Determination.
Clause 6 specifies the total allowable catch for target species and the catch limits for other species in the Fishery for the 2018-2019 fishing year.
Clause 7 repeals the TAC Determination for the 2011-2012 fishing season in the Fishery which remains in force. This repeal ensures that the Federal Register of Legislation does not include this expired instrument.
Overview
The Fisheries Management Act 1991 (the Act) was enacted to provide for the management of fisheries in Australia, including the establishment of plans of management for fisheries. This Act allows the Australian Fisheries Management Authority (AFMA) to determine the total allowable catch (TAC) and catch limits for fisheries. The Heard Island and McDonald Islands Fishery (Total Allowable Catch) Determination 2018 was made to address the need for a specific determination of the TAC and catch limits for the fishery for the 2018/2019 fishing year. This instrument specifies the TAC for target species and catch limits for other species in the fishery for the 2018/2019 season, aligning with the provisions of the Fisheries Management Act 1991 and the Heard Island and McDonald Islands Fishery Management Plan 2002. The determination was made in consultation with relevant advisory committees and ensures that the TACs are set in accordance with reference points and the views of the Sub-Antarctic Fisheries Management Advisory Committee and the Sub-Antarctic Resource Assessment Group.
Scope and Application
The Heard Island and McDonald Islands Fishery (Total Allowable Catch) Determination 2018, made under the Fisheries Management Act 1991, applies to the Heard Island and McDonald Islands Fishery, which encompasses the external territories of Australia in the Southern Indian Ocean. The Act applies to operators holding Statutory Fishing Rights (SFRs) granted under the Heard Island and McDonald Islands Fishery Management Plan 2002, which are the only entities allowed to engage in fishing activities within this fishery. The Determination specifies the total allowable catch (TAC) and catch limits for target species such as Patagonian toothfish and Mackerel icefish for the 2018/2019 fishing season. The Act's jurisdictional reach is limited to the Australian Fishing Zone around these islands, managed by the Australian Fisheries Management Authority (AFMA). The instrument does not include specific exclusions or exemptions, but it does repeal the previous TAC Determination for the 2011-2012 season, ensuring that only current regulations are in effect. The Determination extends its application through subordinate instruments by referencing the Heard Island and McDonald Islands Fishery Management Plan 2002 and the views of advisory committees, thereby incorporating additional regulatory measures and recommendations.
Key Provisions
The main provisions of the Heard Island and McDonald Islands Fishery (Total Allowable Catch) Determination 2018 involve the establishment of total allowable catch (TAC) levels for the 2018-2019 fishing season. Under clause 6 of the Determination, specific TACs for target species and catch limits for other species are established. This determination is made pursuant to section 17(6)(aa) of the Fisheries Management Act 1991 (the Act) and is in accordance with section 11 of the Heard Island and McDonald Islands Fishery Management Plan 2002 (the Plan). The Determination also includes the repeal of the TAC Determination for the 2011-2012 fishing season in clause 7, ensuring that only current regulations are in force.
The Determination imposes specific obligations on the Australian Fisheries Management Authority (AFMA) and the operators holding Statutory Fishing Rights (SFRs) within the Heard Island and McDonald Islands Fishery. AFMA is required to determine the TAC and catch limits for each species of fish before the beginning of each fishing year, as stipulated in section 11 of the Plan. This determination must be made with due regard to reference points for the species, as outlined in section 10 of the Plan, and must take into account the recommendations and views of the Sub-Antarctic Fisheries Management Advisory Committee (SouthMAC) and the Sub-Antarctic Resource Assessment Group (SARAG). Operators holding SFRs are permitted to take a quantity of Patagonian toothfish or Mackerel icefish, as allocated by their SFR, within the limits set by the TAC.
There are no specific offences, penalties, or consequences outlined within the text of the Determination itself. However, any breach of the TACs or catch limits set forth in the Determination, or any other regulations under the Fisheries Management Act 1991, may result in enforcement actions by AFMA. Such actions could include fines, suspension or revocation of SFRs, and other civil or criminal penalties as prescribed under the Act and related regulations. The maximum penalties for breaches of the Fisheries Management Act 1991 can be substantial, depending on the nature and severity of the offence, and may include fines of up to $1.1 million for individuals and $5.5 million for corporations, as well as potential imprisonment terms.