EXPLANATORY STATEMENT
LEGISLATIVE INSTRUMENT
Issued by the Authority of the
Australian Fisheries Management Authority
Fisheries Management Act 1991
Multiple Fishery (Closures) Direction No. 1 2014
The Multiple Fishery (Closures) Direction No. 1 2014 (the Direction) is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Subsection 41A(2) of the Fisheries Management Act 1991 (the Management Act) provides, inter alia, that the Australian Fisheries Management Authority (the Authority) may, after such consultation as set out in s41A(2), direct that fishing is not to be engaged in the fishery, or a particular part of the fishery, during a particular period or periods.
Subsection 41A(2) also provides that, before the Authority issues a Direction, it must consult with the management advisory committee for the fishery about the content of the Direction unless the Direction is issued in circumstances of an emergency.
The Fisheries
The Western Skipjack Tuna Fishery (the WST fishery) covers the area of waters westward from Cape York Peninsula (142°30’E) off Queensland to 34°S off the west coast of Western Australia. It also extends eastward from 34°S off the west coast of Western Australia, across the Great Australian Bight to 141°E at the South Australian/Victorian border. The area of the WST fishery encompasses a substantial part of the waters within the Australian Fishing Zone. The WST fishery operates in both Commonwealth and state waters under complex jurisdictional arrangements, due to different Offshore Constitutional Settlement arrangements with each state.
The WST fishery is managed under input controls limiting the number of boats that operate in the fishery, as well as gear restrictions.
The Western Tuna and Billfish Fishery (the WTB fishery) covers the area of waters westward from Cape York Peninsula (142°30’E) off Queensland to 34°S off the west coast of Western Australia. It also extends eastward from 34°S off the west coast of Western Australia, across the Great Australian Bight to 141°E at the South Australian/Victorian border. The area of the WTB fishery encompasses a substantial part of the waters within the Australian Fishing Zone. The WTB fishery operates in both Commonwealth and state waters under complex jurisdictional arrangements, due to different Offshore Constitutional Settlement arrangements with each state.
The WTB fishery is managed under the Western Tuna and Billfish Fishery Management Plan 2005 (the Plan), in force under section 17 of the Management Act, mainly through output controls in the form of Total Allowable Catch (TAC) limits set under the Commonwealth Fisheries Harvest Strategy Policy and the specific fishery Harvest Strategy Framework. Input controls used include a limit on the number of boats that operate in the fishery, as well as gear restrictions.
The Direction
The Direction closes two areas of both the WST fishery and the WTB fishery to all methods of fishing for a period of 10 years.
The jurisdictional arrangements in place off the Northwest coast of Australia are complex. A range of instruments have been agreed to which establish the maritime boundaries between Australia and Indonesia, and although not all of these are in force, Australia acts consistently with them. These include:
- the 1971 and 1972 seabed treaties, which delimit the majority of the seabed boundary (both of which are in force);
- the 1997 Perth Treaty, which delimits the Exclusive Economic Zone (EEZ) as well as the remainder of the seabed boundary (which is not in force); and
- the 1981 Memorandum of Understanding (MOU) establishing the Provisional Fisheries Surveillance and Enforcement Line (PFSEL) between Australia and Indonesia, which is non-binding but which both Governments have agreed will continue to apply until the 1997 Perth Treaty enters into force.
The PFSEL and the EEZ boundary established by the 1997 Perth Treaty are largely coincident (although the PFSEL stops at longitude 140°E). However, in current Western Tuna and Billfish Fishery Closures, the limit of Australia’s EEZ proclaimed under the Seas and Submerged Lands Act diverges substantially north from the PFSEL and the 1997 Perth Treaty EEZ boundary. This is to maintain Australia’s formal claim to a more northerly EEZ boundary until the Perth Treaty enters into force. However, in practice, Australia and Indonesia act consistently with the arrangements established under the 1997 Perth Treaty, and with the PFSEL. Accordingly, although these areas are defined as being within Australia’s EEZ under domestic law:
(i) in the North-Western Australia area, which is north of both the agreed EEZ boundary and the PFSEL, Australia only exercises seabed jurisdiction, while Indonesia has jurisdiction over swimming species, and
(ii) in the Christmas Island area, which is north of the agreed EEZ boundary, Indonesia exercises jurisdiction over both the swimming and sedentary species.
The Management Act defines the Australian Fishing Zone (AFZ) to include the waters adjacent to Australia extending from 3 nautical miles to the outer limits of the EEZ. Accordingly, the AFZ currently includes both the North-Western Australia area and the Christmas Island area.
Consultation
Subsection 41A(2) of the Management Act provides that, before giving a Direction, the Authority must consult the relevant management advisory committee and consider their views. The Authority may also consider the views of other interested persons.
In accordance with subsection 41A(2) of the Management Act, the Authority has consulted with the Tropical Tuna Management Advisory Committee (the Committee) on the contents of the Direction.
The Committee raised no objections to the Direction.
Regulation Impact Statement
The Office of Best Practice Regulation advised that a Regulation Impact Statement was not required for this Direction (OBPR ID 13488).
Statement of compatibility prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
The Authority assesses under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 that this legislative instrument is compatible with human rights. The Authority’s Statement of Compatibility is attached as a supporting document.
Terms of the Direction
Details of the Direction are set out below:
Clause 1 provides for the Direction to be cited as Multiple Fishery (Closures) Direction No. 1 2014.
Clause 2 provides that the Direction commences on the day after it is registered on the Federal Register of Legislative Instruments.
Clause 3 provides that Direction ceases on 30 April 2024, unless earlier revoked.
Clause 4 provides that terms used in the Direction that are defined in the Management Plan and the Management Act, have the same meanings they have in the Management Plan and Management Act.
Clause 5 specifies the persons to whom the Direction applies.
Clause 6 directs that fishing is not to be engaged in in specified areas of the Western Skipjack Tuna Fishery and the Western Tuna and Billfish Fishery.