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FISHERIES MANAGEMENT AMENDMENT REGULATIONS 1999 (NO. 1) 1999 NO. 22
EXPLANATORY STATEMENTSTATUTORY RULES 1999 No. 22
Issued by the authority of the Minister for Agriculture, Fisheries and Forestry
Fisheries Management Act 1991
Fisheries Management Amendment Regulations 1999 (No. 1)
Subsection 168(1) of the Fisheries Management Act 1991 (the Act) empowers the GovernorGeneral to make regulations required or permitted by the Act to be prescribed.
Subsection 14(2) of the Act provides that for the purposes of conserving the marine environment, regulations may be made in relation to, among other things, the taking and treatment of by-catches.
Section 72 of the Act also allows the Commonwealth to make an arrangement with a State whereby it is agreed that a fishery is to be managed in accordance with either the law of the Commonwealth or the law of the State. Several arrangements have been entered into by the Commonwealth with the Northern Territory and each of the states of Queensland, South Australia, Tasmania, Victoria and Western Australia pursuant to which by-catch arrangements have been agreed. These arrangements are detailed in Memorandums of Understanding between the Commonwealth, the relevant Territory or State and the Australian Fisheries Management Authority (AFMA).
These arrangements include by-catch restrictions for species now managed in accordance with State law but that are to be regulated under Commonwealth law when taken as by-catch by Commonwealth fishing concession holders.
The purpose of the Fisheries Management Amendment Regulations is to implement these arrangements. The principal Regulations have been amended by the addition of a new Part 11 (By-catch Restrictions). Part 11 details by-catch restrictions by reference to particular species in waters adjacent to the States of South Australia, Tasmania and Victoria in accordance with the arrangements which have been negotiated. Part 11 also incorporates the restrictions previously set out in section 8A of the principal Regulations, which relates to restrictions for by-catch taken by Commonwealth fishing concession holders with tuna permits in waters adjacent to Western Australia, the Northern Territory and Queensland.
A Regulation Impact Statement is attached.
Details of the Regulations, which commenced on gazettal, are set out below:
Regulation 1 provides that these regulations are named the Fisheries Management Amendment Regulations 1998 (No. ).
Regulation 2 states that the Regulations commence on gazettal.
Regulation 3 states that Schedule 1 amends the principal Regulations.
Schedule 1 Item 1 amends Regulation 1 of the principal Regulations be substituting a new name for the principal Regulations.
Schedule 1 Item 2 amends Regulation 3(1) of the principal Regulations by changing the definition of 'relevant offence' to include the new offences created by the new bycatch restrictions.
Schedule 1 Item 3 amends Regulation 4AA(I) of the principal Regulations by correcting a typographical error.
Schedule 1 Item 4 provides that Regulation SA of the principal Regulations be omitted.
Schedule 1 Item 5 provides that a new Part 11 (By-catch restrictions) be inserted after Regulation 46 of the principal Regulations, and sets out the new by-catch restrictions.
Schedule 1 Item 6 provides that Schedules 3A, 3B and 3C of the principal Regulations be omitted.
Schedule 1 Clause 7 provides that Schedules 5 and 6 be inserted after Schedule 4 of the principal Regulations, and sets out the detail of those Schedules.
Regulation Impact Statement for the Fisheries Management Amendment
Regulations 1999
Background
Management responsibility for Australia's fisheries resources is divided between State and Commonwealth governments. In the normal course of events, a State government has jurisdiction over fisheries which lie within 3 nautical miles (nm) of their coastline, and the Commonwealth from 3nm to the outer edge of the Australian fishing zone (20Onm) and beyond.
However, fish stocks do not recognise this 3nm State/Commonwealth waters boundary, or the boundaries between States, which often results in two or more agencies having responsibility for managing a single fish stock. This will lead to inefficient management, and ineffective management if the objectives or priorities of the two agencies are not identical.
Consequently, in the late 1980's, the Commonwealth and State governments agreed to allow for the rationalisation of split jurisdiction over fish stocks. A State Minister and the Commonwealth Minister can sign an Offshore Constitutional Settlement (OCS) Arrangement which passes responsibility for a species or group of species solely to one or other jurisdiction. These arrangements are provided for under Section 72 of the Fisheries Management Act 1991, and in relevant State fisheries legislation.
After an extensive round of negotiation between State and Commonwealth officials, the relevant Commonwealth and State Ministers from Victoria, Tasmania and South Australia signed a series of OCS Arrangements for a variety of marine species and species groupings on 31 December 1996 (SA and Tas) and 31 October 1997 (Vic).
The series of arrangements with each State were accompanied by a Memorandum of Understanding (MOU), signed by Ministers, setting out agreed management arrangements to underpin the jurisdictional arrangements contained in the OCS Arrangements. These MOUs detail such things as the process for sharing of catch information, agreed cross jurisdiction licensing rules and, importantly, the allowable by-catch limits to be applied by each jurisdiction.
Fish species which are targeted in one fishery, are often taken as an incidental by-catch of fishing operations in other fisheries. Where, as a result of the OCS Arrangements, the by-catch species is the responsibility of a different jurisdiction to the target species, the OCS Arrangements provide for a by-catch allowance to be agreed between Ministers. By-catch levels acceptable to both parties are then negotiated and agreed in the accompanying MOUs.
For example, Commonwealth fishers droplining for blue eye trevalla (a Commonwealth species) will also incidentally take a small quantity of stripey trumpeter as by-catch of their fishing operation. Stripey trumpeter is a species under State jurisdiction. State and Commonwealth Ministers have agreed that Commonwealth dropline fishers should be permitted to take up to 50kg of stripey trumpeter on any one fishing trip.
Problem
These limits on the catch of by-catch species, agreed by Ministers in MOUs accompanying OCS Arrangements, then need to be implemented by the State (for their fishers' by-catch of Commonwealth jurisdiction species) and by the Australian Fisheries Management Authority (AFMA) for Commonwealth fishers' by-catch of State jurisdiction species. It is the need to require operators to abide by the agreed bycatch limits that is the problem to be solved. The Commonwealth (through AFMA) also needs to pursue its fisheries management objectives for these by-catch species, as specified in the Fisheries Management Act 1991 (the Act), including the objective of..
"ensuring that the exploitation of fisheries resources and the carrying on of any related activities are conducted in a manner consistent with the principles of ecologically sustainable development and the exercise of the precautionary principle, in particular the need to have regard to the impact of fishing activities on non-target species and the long term substainability of the marine environment (Paragraph 3(1)(b) of the Act).
Desired objective
To allow AFMA to effectively and efficiently impose agreed by-catch limits for State jurisdiction species on Commonwealth fishing concession holders, and thereby meet the Commonwealth's obligations under the MOUs agreed with each of the States of South Australia, Tasmania and Victoria, and assist AFMA to pursue its legislative objectives.
(Currently, the Fisheries Management Regulations include restrictions in relation to by-catch of particular species when taken under a fishing concession that allows the taking of tuna, in waters adjacent to Western Australia, the Northern Territory and Queensland. These restrictions are to be maintained.)
Options
Not applying the by-catch limits agreed by Ministers in the MOU
The Commonwealth could choose not to apply the limits on by-catch species specified in the MOU.
Specify the by-catch limits as conditions on each fishing concession granted by AFMA
The by-catch limits could be implemented as conditions on each fishing permit, scientific permit and statutory fishing right granted by AFMA under sections 32(7), 33(4) and 22(4) respectively of the Act.
Amend the Fisheries Management Regulations to implement the by-catch limits
The by-catch limits could be specified in an amendment to the Fisheries Management Regulations to apply generally to all holders of fishing concessions.
Assessment of the impact of each option
Impact of not applying the by-catch limits agreed by Ministers in the MOU
This would allow Commonwealth fishing concession holders to catch unlimited amounts of Sate jurisdiction by-catch species contrary to the limits agreed by State and Commonwealth Ministers. This would also be contrary to the objectives in the Act, specifically the ecologically sustainable development objective specified in the desired objective above. It would also likely lead to the State governments withdrawing from the OCS Arrangements leaving the issue of split jurisdiction over fish stocks unresolved.
This approach would have the advantage of being less expensive to enforce than either of the other two options (there is nothing to enforce), however this would come at the expense of the fish stocks, and inter-governmental relations.
Impact of by-catch limit conditions on each fishing concession
Specifying the by-catch limits as conditions on each fishing concession would involve developing a set of appropriate conditions, and including these on each fishing concession granted by AFMA. This would have the effect of limiting the amount of these species each concession holder could legally take on a fishing trip.
Because of the number of species involved, the conditions would be necessarily long and complex. Some species would be more relevant to one method of fishing than another method, but all species would need to be included on all fishing concessions, otherwise the integrity of the by-catch limits, and the Ministerial agreement set out in the MOU, would be compromised. This would lead to unnecessary questions of AFMA staff relating to seemingly irrelevant bycatch conditions, and less cost effective management of fish stocks.
Specifying the limits as conditions on fishing concessions would provide the opportunity for each individual concession holder to apply for internal review of their by-catch conditions, and if dissatisfied with the review decision, to apply to the Administrative Appeals Tribunal for farther review. This right of review would apply every time a concession was granted; annually for the majority of concessions. The government would have to spend funds on repetitive reviews as even if a concession holder loses at internal review and the AAT, they have a new right of appeal when a concession is re-granted the following year.
Ministers chose to agree on the by-catch limits in an MOU, rather than in the OCS Arrangement to make them easier to amend. It was always envisaged that the level of by-catch for some species may need to be amended over time, as more information on the level of incidental catches is collected. If the limits are specified as conditions on concessions, then any amendment to the MOU will require every fishing concession to be varied individually. There are approximately 1,500 concessions granted by AFMA each year, thus varying each of them would take considerable resources.
Impact of amending the Fisheries Management Regulations to implement the by-catch limits
Specifying the by-catch limits in the Fisheries Management Regulations would have the same effect as specifying the by-catch limits as conditions on fishing concessions. Each concession granted by AFMA under the Act is subject to the regulations. This approach has the advantage of being simpler to apply, and simpler for fishing concession holders to understand. Specific, and more relevant, parts of the regulations would be pointed out to concession holders using different fishing methods, rather than each concession having 20 pages of attached conditions relating to seemingly irrelevant by-catch limits, as would be the case under the previous option.
The government would not have to fund repetitive reviews of the by-catch limits each year. Fishing concession holders would not have the opportunity to seek internal review of the bycatch conditions each year, or review by the Administrative Appeals Tribunal.
Any variation to agreed by-catch levels would be relatively easy to implement via an amendment to the regulations and notification of the change to each concession holder.
The impact of the options on households, businesses and government is summarised in the following table.
Table 1 Summary of impact of options
Option Impact on
Households Business Government
Not applying the by- Likely over exploitation Reduced financial returns AFMA does not
catch limits of fish stocks as agreed from fish stocks for comply with agreed
constraints on catch not current and future Government policy to
implemented and hence generations of fishers in implement by-catch
reduced supply of fish medium and long term if limits specified in the
for current and future stocks are over exploited. MOU between State
generations of and Commonwealth
consumers in medium Ministers.
and long term.
The Commonwealth
would not be pursuing
its ESD objective.
By-catch limits Continuity in supply of Each fishing concession AFMA complies with
specified as by-catch species to has lengthy conditions agreed Government
conditions on fishing market for current and included to cover all by- policy to implement
concessions future generations of catch species leading to by-catch limits
consumers. unnecessary confusion, specified in the MOU
and less efficient between State and
Sustainable use of a management. Commonwealth
community owned Ministers.
resource. Changes to agreed by-
catch limits would be Government funds
costly and time spent on repetitive
consuming to implement, reviews of by-catch
leading to less efficient conditions every year,
management. These (even if a decision to
management costs are impose by-catch
recovered from limits is affirmed at
concession holders. internal review and
AAT, each time an
Internal review of by- annual concession is
catch conditions and AAT granted, appeals may
available to each be lodged again).
individual concession
holder. AFMA would spend
unnecessary time
explaining by-catch
conditions on fishing
concessions each year.
AFMA would spend
wasteful time
effecting any changes
to the agreed by-catch
limits via amendments
to the conditions.
Recommended option
Not applying the by-catch limits would not assist AFMA in achieving the desired objective. Applying the by-catch limits as conditions on each fishing concession will only partially meet the desired objective. Pursuing the option to implement the bycatch limits as an amendment to the Fisheries Management Regulations will allow AFMA to achieve the desired objective.
For these reasons, the recommended option is that the Fisheries Management Regulations be amended to apply the by-catch limits agreed by State and Commonwealth Ministers in the Memorandum of Understanding accompanying the OCS Arrangements.
Consultation statement
The task of negotiating jurisdiction for fish species between State and Commonwealth governments lies with officers of the Department of Primary Industries and Energy as the relevant department advising the Minister for Resources and Energy. AFMA is involved to the extent that it provides management expertise from a Commonwealth perspective regarding the most appropriate jurisdiction to manage various fish stocks. AFMA also has the necessary contacts in the industry and therefore handles the bulk of the consultations undertaken with industry on proposed jurisdictional changes.
AFMA distributed and sought comments on the by-catch limits proposed for inclusion in the MOUs from State peak industry bodies and relevant Commonwealth Management Advisory Committees in 1994/95. The State fisheries agencies also sought advice on proposed by-catch limits from their industry groups. All of these groups provided advice from an operational perspective on the amount of by-catch allowance reasonably required for fishing methods targeting different species. Comments from these groups, where provided, were taken into account in the preparation of the final documents for Ministers to consider.
Implementation and review of preferred option
The amendment to the Fisheries Management Regulations will be placed in the Gazette upon acceptance by Executive Council. All relevant fishing concession holders will be notified in writing of the amendment to the Regulations and the restrictions it places upon them.
The by-catch limits specified in this Regulation amendment will be reviewed for their effectiveness on an ongoing basis by State and Commonwealth fisheries agencies.
AFMA
15 February 1999