Commonwealth Numbered Regulations - Explanatory Statements

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FISHERIES MANAGEMENT REGULATIONS (AMENDMENT) 1994 NO. 419

STATUTORY RULES 1994 No. 419

Issued by the authority of the Minister for Resources

Fisheries Management Act 1991

Fisheries Management Regulations (Amendment)

Subsection 168 (1) of the Fisheries Management Act 1991 (the Management Act) empowers the GovernorGeneral to make, among other things, regulations required or permitted by the Management Act to be prescribed. Subsection 8 (1) of the Management Act provides for the making of regulations for the purpose of extending the application of the Management Act to specified areas outside the Australian fishing zone (AFZ). Section 110 of the Management Act provides that levy imposed by the Fishing Levy Act 1991 (the Levy Act) is due and payable at a time or times ascertained in accordance with Regulations made under the Management Act.

Regulation 4 of the Fisheries Management Regulations (the principal Regulations) provides for the application of the Management Act to areas outside of the AFZ. In particular, subregulation 4 (2) previously applied the Management Act to particular persons and Australian boats that fished for Southern Bluefin Tuna (SBT) in a defined area that covers the known distribution of SBT.

This extended application of the Management Act enables Australia to fulfil its obligations under the Convention for the Conservation of Southern Bluefin Tuna. The Convention requires, among other things, that Australia ensure that Australian fishers and boats do not breach measures and quota decided by the Commission established under the Convention. Some practical difficulties have been identified in the enforcement of the Management Act in the defined area. The Regulations were designed in part to overcome these difficulties.

The Regulations amend subregulation 4 (2) to increase the extended application of the Management Act in the defined area to cover all fishing relating to SBT and a closely related species, Northern Bluefin Tuna (NBT). NBT is almost identical to SBT in appearance and taxonomy. NBT is occasionally taken with SBT in the defined area.

Persons alleged to have fished SBT in the defined area in contravention of the Management Act (alleged offenders) could previously dispute whether the Management Act applied to them by claiming:

•       that the relevant fish were NBT not SBT; or

•       that they were not fishing for SBT, but only happened to take SBT while fishing for other fish.

It is difficult for the Commonwealth to prove otherwise because of the expense, inconvenience and uncertainty involved in tests required to distinguish NBT from SBT, difficulties in obtaining samples for the tests and difficulties in proving the alleged offenders' intention when identical equipment can be used to fish for SBT and a number of other species of fish.

The amendment to subregulation 4 (2) improves the effectiveness of enforcement of the Management Act by denying the alleged defenders these opportunities of disputing whether the Management Act applies to them.

Regulation 19A of the principal Regulations prescribed when levy imposed on a fishing permit was due and payable, where the fishing permit included a condition by reference to which the amount of levy was calculated. The purpose of this regulation was to provide a prescription of when levy is due and payable which was generally applicable to a number of levies prescribed under the Levy Act.

As each regulation that prescribes levy under the Levy Act is now written to also prescribe individually under the Management Act when the particular levy is due and payable, Regulation 19A is no longer required. Therefore the Regulations repeal regulation 19A.

Details of the Regulations, which commenced on gazettal, are:

Regulation 1 provides for the amendment of the principal Regulations.

Regulation 2 amends subregulation 4 (2) of the principal Regulations by extending the application of the Management Act in the area specified in subregulation 4 (3) to cover the persons specified in subregulation 4 (2) when fishing SBT and NBT.

Regulation 3 repeals regulation 19A principal Regulations.