EXPLANATORY STATEMENT
Issued by the Authority of the Managing Director of the Australian Fisheries Management Authority
Northern Prawn Fishery Management Plan Amendment 2005 (No. 05)
Fisheries Management Act 1991
This Amendment is a legislative instrument for the purposes of the Legislative Instruments Act 2003. This Amendment will commence on the day after it is registered on the Federal Register of Legislative Instruments. A Regulatory Impact Statement is not required for this Amendment (Office of Regulatory Review ID number 6217).
Fishing in the Northern Prawn Fishery (NPF) is managed under the provisions of the Northern Prawn Fishery Management Plan 1995 (the Plan). Schedule 1 (the Schedule), Clause 2 of the Plan defines the area of the NPF.
There is a discrepancy between the description of the area of the NPF as set out in the Schedule of the Plan and as described in the Offshore Constitutional Settlement (OCS) arrangements with the relevant States and Territory.
The OCS arrangement entered into with the Northern Territory (NT) in 1995 clearly defines the NPF as including both coastal waters and waters of the Australian Fishing Zone (AFZ). The Commonwealth, States and Northern Territory have always managed the NPF under the understanding that the Commonwealth has had jurisdiction over all waters to the low water mark. This was the intent of the Plan.
Clause 2 of the Schedule defined the area of the Northern Prawn Fishery as “that part of the Australian fishing zone adjacent to the coastal waters from low water…” (emphasis added).
This definition could be misinterpreted as not including the coastal waters of the relevant States and Territory.
Upon realising the potential inconsistency AFMA implemented a Temporary Order on 24 February 2004 (No. 1 of 2004). This Temporary Order amended the definition of the area of the NPF in the Plan to clarify that the NPF includes both coastal waters and the waters of the AFZ. A subsequent Temporary Order, (No 3 of 2004) the same in effect as the first was implemented on 13 August 2004. The Temporary Order will remain in effect until 12 February 2005 or such earlier time as the Plan is amended.
Upon discovery of the ambiguity in the Northern Prawn Fishery Management Plan 1995 AFMA, in consultation with NORMAC prepared a draft Amendment to the Plan to permanently resolve any possible misinterpretation of the intent of the Plan. In the short term a Temporary Order was issued under Section 43 of the Act to give temporary effect to the draft Amendment.
Following agreement by NORMAC and the AFMA Board to amend the Plan to correct the drafting error, AFMA has undertaken consultation in accordance with sections 17 and 20(5) of the Fisheries Management Act 1991.
This consultation process involved advising interested persons of AFMA’s intention to amend the Northern Prawn Fishery Management Plan 1995, including an invitation to make representations in connection to the draft Amendment during a one month period of public comment from 27 July 2004 to 29 August 2004.
Notification was made via:
the Gazette;
public notices in The Australian, The NT News, The West Australian and The Cairns Post;
AFMA’s website;
written notification to persons and organisations listed in the ‘Register of persons concerned about plans of management’ under section 17(A) of the Act ;
written notification to NPF SFR holders; and
written notification to Aboriginal Land Councils relevant to the area of the NPF
Only one submission was received during the one-month public comment period. This was supportive of the proposed Amendment.
This Amendment corrects the definition of the area of the NPF in the Plan to clarify that the NPF includes coastal waters and the waters of the AFZ, and to make the definition consistent with the definition of the NPF in the OCS.
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Overview
The Northern Prawn Fishery Management Plan Amendment 2005 (No. 05) was introduced to address a discrepancy between the description of the Northern Prawn Fishery (NPF) area in the Northern Prawn Fishery Management Plan 1995 and the Offshore Constitutional Settlement (OCS) arrangements with relevant states and territories. The original definition in the Plan could be interpreted to exclude coastal waters, which was not the intent of the Plan or the OCS arrangements. The Australian Fisheries Management Authority (AFMA) implemented a temporary order in 2004 to clarify the definition pending a permanent amendment. Following consultation and public comment, AFMA prepared the Amendment to ensure the Plan accurately reflects the area of the NPF, including both coastal waters and the Australian Fishing Zone, as intended and consistent with the OCS. The Amendment was enacted under the Fisheries Management Act 1991 by the Australian Fisheries Management Authority.
Scope and Application
The Northern Prawn Fishery Management Plan Amendment 2005 (No. 05) pertains to the Northern Prawn Fishery (NPF) and seeks to rectify an ambiguity in the original Northern Prawn Fishery Management Plan 1995. The amendment applies to all entities involved in fishing within the NPF, including individuals and corporations operating in both coastal waters and the Australian Fishing Zone (AFZ). Its purpose is to ensure that the NPF encompasses both coastal waters and the AFZ, aligning with the Offshore Constitutional Settlement (OCS) arrangements with the relevant states and territories. This amendment does not extend to any other fisheries or areas outside the NPF. It is a legislative instrument under the Fisheries Management Act 1991, applying nationally within the Commonwealth jurisdiction over all waters to the low water mark. This amendment was enacted following consultations with relevant stakeholders, including the Northern Fisheries Management Advisory Council (NORMAC) and the Australian Fisheries Management Authority (AFMA) Board, and public consultation as required by sections 17 and 20(5) of the Fisheries Management Act 1991. The amendment will remain in effect until such time as the Plan is amended, ensuring the correct interpretation of the NPF area.
Key Provisions
The Northern Prawn Fishery Management Plan Amendment 2005 (No. 05) (the Amendment) amends the Northern Prawn Fishery Management Plan 1995 (the Plan) by clarifying the definition of the area of the Northern Prawn Fishery (NPF). Specifically, section 1 of the Amendment modifies Clause 2 of Schedule 1 of the Plan to ensure that the NPF includes both coastal waters and the waters of the Australian Fishing Zone (AFZ), aligning it with the Offshore Constitutional Settlement (OCS) arrangements (s.1). This amendment was necessitated by an ambiguity in the original Plan which could have been interpreted as excluding coastal waters, despite the intent of the Commonwealth, States, and Northern Territory to manage the NPF inclusive of such waters.
Under the amended Plan, parties involved in the Northern Prawn Fishery are now required to operate within a clearly defined area that explicitly includes both coastal waters and the AFZ. This obligation ensures that all stakeholders, including fishing operators, comply with the jurisdictional boundaries established under the OCS and the intent of the original management plan. The Northern Australian Fisheries Management Authority (AFMA) is responsible for enforcing this definition and ensuring compliance, which includes monitoring fishing activities and ensuring that all operations adhere to the newly clarified boundaries of the NPF.
Any breaches of the provisions outlined in the amended Plan may result in legal consequences. While the specific penalties are not detailed in the Amendment, general provisions under the Fisheries Management Act 1991 apply. This could include fines, imprisonment, or both, depending on the severity of the breach. For instance, unauthorised fishing in the NPF could lead to criminal penalties, whereas failure to comply with management measures might result in civil penalties. It is important for all parties to be aware of these potential consequences to ensure adherence to the law.
In summary, the Amendment to the Northern Prawn Fishery Management Plan 1995 aims to rectify a drafting error that could have led to misinterpretation of the fishery's jurisdictional boundaries. By aligning the definition of the NPF with the OCS arrangements, it ensures clarity and consistency in the management of this important fishery. The Amendment imposes clear obligations on all stakeholders to operate within the specified area and imposes penalties for non-compliance, thereby maintaining the integrity of the fishery management framework.