15.1 Legal and / or Customary Framework
15.1.1 Compatibility of Laws with Effective Management
The governance system in place for all WA commercial fisheries, including the SBPMF, is subject to a number of international, national and local (state-level) treaties, policies and pieces of legislation.
International Fisheries Jurisdiction and Treaties 15.1.1.1
On 1 August 1994, the Commonwealth of Australia declared an Exclusive Economic Zone (EEZ) extending from 12 nautical miles to 200 nautical miles from its coastline15. Within its EEZ, Australia has sovereign rights to explore and exploit, conserve and manage the natural
resources—both living (such as fisheries and genetic material) and non-living (such as oil, gas, minerals).
Australia is a signatory to a number of international agreements and conventions (which is applied within its EEZ) such as —
• United Nations Convention on the Law of the Sea (regulation of ocean space);
• Convention on Biological Diversity and Agenda 21 (sustainable development and ecosystem based fisheries management);
• Convention on International Trade in Endangered Species of Wild Fauna and Flora (protection of ETP species);
• Code of Conduct for Responsible Fisheries (standards of behaviour for responsible practices regarding sustainable development);
• United Nations Fish Stocks Agreement; and
• State Member of the International Union for Conservation of Nature.
National Environmental Legislation 15.1.1.2
The EPBC Act16 is the Australian Government’s (hereafter referred to as the ‘Commonwealth Government’) central piece of environmental legislation. The EPBC Act is administered by the Commonwealth Government’s Department of the Environment (DotE) and provides a legal framework to protect and manage nationally and internationally important flora, fauna, ecological communities and heritage places — defined in the EPBC Act as matters of national environmental significance. The DotE is responsible for acting on international obligations on a national level, by enacting policy and/or legislation to implement strategies to address those obligations.
The Commonwealth DotE, through the Commonwealth Minister, has a legislative responsibility to ensure that:
• All Commonwealth managed fisheries undergo strategic environmental impact assessment before new management arrangements are brought into effect; and
• All fisheries in Australia from which product is exported undergo assessment to determine the extent to which management arrangements will ensure the fishery is managed in an ecologically sustainable way in the long term.
WA fisheries legislation and policy conforms to overarching Commonwealth Government fisheries and environmental law, including the EPBC Act. Western Australia’s commercial export fisheries, including the SBPMF, have been assessed using the Australian National ESD Framework for Fisheries17, in particular, the Guidelines for the Ecologically Sustainable Management of Fisheries (the Guidelines).18
16 http://www.austlii.edu.au/au/legis/cth/consol_act/epabca1999588/
State and Commonwealth Fisheries Jurisdictional Arrangements 15.1.1.3
There are three different statutory entities responsible for the control and management of fisheries off the coast of Western Australia –
• the WA State Government;
• the WA Fisheries Joint Authority; and
• the Commonwealth Australian Fisheries Management Authority19 (AFMA).
The WA State Government and WA Fisheries Joint Authority managed fish resources that fall under the jurisdiction of the Fish Resources Management Act 1994 (FRMA) are described in a formal agreement between the Commonwealth and State Governments known as the Offshore Constitutional Settlement 1995 (OCS)20. Commonwealth fisheries are managed by AFMA under the Commonwealth Fisheries Management Act 199121.
The OCS sets out that the State will manage all trawling on the landward side of the 200 metre isobath in WA, and the Commonwealth will manage all deep water trawling. The SBPMF is managed by the State pursuant to the OCS, and its western boundary is the 200 metre isobath. There are no migratory or straddling stock management requirements associated with this fishery.
System of Government in WA and Relevant Fisheries Legislation 15.1.1.4
The Government of WA operates under the Westminster system, and an important tenant of this system is that the responsible Minister makes executive decisions. Insofar as the administration of fisheries in Western Australia is concerned the relevant executive decision maker is the Minister for Fisheries.
The WA Department of Fisheries is established and governed under the State Public Sector Management Act 199422 (PSM Act) which is administered by the Western Australian Public Sector Commission23 under the Department of Premier and Cabinet. Departmental staff must act in accordance with the PSM Act and any allegations of official corruption by Departmental staff are handled by the WA Corruption and Crime Commission24. The Department is required to report on its performance annually via its Annual Report to State Parliament (Annual Report).25
The Department is principally responsible for assisting the Minister for Fisheries in administering the following Acts and Regulations26 that apply to the aquatic resources (excluding pearling) in WA:
19 http://www.afma.gov.au/
20 http://www.fish.wa.gov.au/Documents/management_papers/fmp077.pdf.
21 http://www.austlii.edu.au/au/legis/cth/consol_act/fma1991193/
22 http://www.slp.wa.gov.au/legislation/statutes.nsf/main_mrtitle_771_homepage.html.
23 http://www.publicsector.wa.gov.au/
24 http://www.ccc.wa.gov.au/Pages/default.aspx
25 http://www.fish.wa.gov.au/Documents/annual_reports/annual_report_2012-13.pdf
• FRMA;
• FRMR;
• Fisheries Adjustment Schemes Act 1987; and
• Fishing and Related Industries Compensation (Marine Reserves) Act 1997.
The FRMA adheres to arrangements established under relevant Australian laws as set out in sections 3 and 4A:
Section 3 of the FRMA —
“The objects of this Act are
(a) to develop and manage fisheries and aquaculture in a sustainable way; and
(b) to share and conserve the State’s fish and other aquatic resources and their habitats for the benefit of present and future generations.”
Section 4A of the FRMA precautionary principle, effect of, states-
“In the performance or exercise of a function or power under this Act, lack of full scientific certainty must not be used as a reason for postponing cost-effective measures to ensure the sustainability of fish stocks or the aquatic environment.”
The FRMA deals with broad principles, the provision of head powers and high level overarching matters; the FRMR and other subsidiary legislation, such as commercial fishery management plans, deal with the details needed to put these matters into practice.
In many cases, the FRMA will specifically require some matters to be dealt with by subsidiary legislation. Subsidiary legislation cannot be inconsistent with the provisions of the FRMA, under which it was made, and must be permitted to be made by a head of power in the empowering Act.
New WA Aquatic Resources Management Act 15.1.1.5
In 2010, the Minister for Fisheries directed the Department to investigate and scope the requirements for a new Western Australian Act of Parliament to ensure the sustainable development and conservation of the State’s aquatic biological resources into the future.
This review recognised the need for the establishment of a clear statutory basis for commercial and recreational fishing access rights as a component in improving the overall robustness of sustainable fisheries management and improving security of resource access for all fisheries sectors.
A new Aquatic Resources Management Act (ARMA) has been drafted to replace the FRMA and is expected to be passed by Parliament during 2015. Importantly, the ARMA’s proposed framework includes provision for a rights-based management approach for all fishing sectors in the context of aquatic resource management strategies and sectoral harvest plans.
An overview of the proposed new ARMA and the objectives of sustainable fisheries and aquatic management policy and how they relate to national and international fisheries law and policy are published in A Sea Change for Aquatic Sustainability – Meeting the Challenge of Fish Resource and Aquatic Sustainability in the 21st Century.27
The guiding principles for the proposed ARMA are that it:
• Provides an integrated aquatic resource management framework which incorporates ESD and biodiversity conservation goals;
• Incorporates the precautionary principle more explicitly;
• Broadens the base of the Act to include aquatic ecosystem issues in the management prescriptions;
• Provides a basis for simplifying subsidiary legislation where possible;
• Provides for greater devolution of decision making and delegation where suitable;
• Provides flexibility for more cost-effective management based on more explicit risk assessment;
• Provides explicit head powers to achieve biological and allocation outcomes across all harvest sectors as required; and
• Provides improved security of access for all resource users.
Importantly, the proposed ARMA includes objects to:
“(a) ensure the ecological sustainability of the State’s aquatic resources and aquatic ecosystems for the benefit of present and future generations; and (b) to ensure that the State’s aquatic resources are managed, developed and used having regard to the economic, social and other benefits that the aquatic resources may provide.”