Eastern Tuna and Billfish Fishery (Fishing Season and Total Allowable Commercial Catch) Determination (No.2) 2024

The instrument relies on several defined terms from the Management Plan and the Act. "Fishing season" is defined in section 1.3 of the Management Plan as the period determined by the Australian Fisheries Management Authority (AFMA) for the purposes of the plan. Section 6 of this determination fixes that period as 1 January to 31 December in each year. This is a straightforward annual cycle, but it means that any undercatch or overcatch cannot be corrected within the same calendar year unless separate provisions in the Management Plan allow quota carryover or adjustment. The instrument does not address those issues.

"Total allowable commercial catch" is also defined in section 1.3 of the Management Plan. It means the maximum weight of fish of a particular quota species that may be taken commercially in the fishery in a fishing season. The concept is a hard cap: once the TACC is reached, further commercial take is unlawful. The instrument sets specific tonnage figures in whole weight. Whole weight means the weight of the fish as landed, not gutted, headed or processed. This matters for compliance because the landed catch must be weighed and reported as whole weight. Any processing at sea that reduces weight would underestimate the catch against the TACC. Industry participants must maintain accurate weighing and reporting systems to avoid exceeding the TACC inadvertently.

"Quota species" are those species listed in the Management Plan as subject to individual transferable quotas. The determination names five: albacore tuna (Thunnus alalunga), bigeye tuna (Thunnus obesus), yellowfin tuna (Thunnus albacares), broadbill swordfish (Xiphias gladius), and striped marlin (Tetrapturus audax). These are the main target species in the Eastern Tuna and Billfish Fishery. The instrument does not include other species that may be taken incidentally, such as skipjack tuna or other billfish. Those would be regulated by other provisions in the Management Plan or by separate determinations.

The concept of a "determination" under paragraph 17(6)(aa) of the Fisheries Management Act 1991 is a legislative instrument made by AFMA (or the Minister, as delegated) that sets the TACC for a fishing season. It is not a plan or a policy; it is a numerical setting. The Act requires that the TACC must not be greater than the amount that AFMA considers consistent with the objectives of the Act, which include ensuring that the exploitation of fisheries resources is carried out in a manner consistent with ecologically sustainable development. But the determination itself does not discuss how the numbers were derived.

The instrument also provides for its own cessation. Section 5 says it ceases on 31 December 2027 unless earlier revoked. This is a sunset provision common to many fisheries determinations to ensure the TACCs are reviewed periodically. After that date, a new determination would be required for the 2028 season onwards. If no replacement is made before then, there will be no TACC in place for the 2028 season, which could create a legal hiatus and effectively close the fishery until a new determination is gazetted. Operators should monitor for replacement instruments well before late 2027.

The primary group directly affected is commercial fishers holding statutory fishing rights (SFRs) or quota units in the Eastern Tuna and Billfish Fishery. This includes individual operators, fishing companies, and cooperative ventures. They must plan their fishing activities so that the total catch of each quota species does not exceed the quota units they hold, which must in total not exceed the TACC set for that species in that season. Any person who takes a quota species without sufficient quota to cover their catch commits an offence under the Fisheries Management Act 1991, subject to penalties.

The determination also affects entities downstream: fish processors, buyers, exporters and retailers who rely on a predictable supply of these species. The disappearance of TACC for broadbill swordfish and striped marlin in 2027 will likely reduce the availability of those species from domestic commercial sources. Import substitution may occur, but that is outside the control of the determination. The cost of compliance for downstream businesses is indirect but includes the need to adjust contracts and source alternatives.

Affected parties also include AFMA itself, which must administer the TACC system, monitor catches, reconcile quota holdings, and enforce compliance. AFMA bears the administrative cost of issuing, amending and tracking this determination and any subsequent ones. The fiscal cost of that bureaucracy is ultimately borne by taxpayers and industry cost recovery levies.

The determination may also affect recreational fishers indirectly, because the TACC for a species can influence the overall catch limit that is set for the fishery as a whole. However, the instrument deals only with commercial take; recreational catch limits are set under other mechanisms. Nevertheless, if the commercial TACC is reduced, market prices may rise, affecting recreational fisher costs for gear and bait, but that is a market effect, not a regulatory one.

Indigenous fishing rights are acknowledged under the Act and other legislation, but this determination does not explicitly address them. Native title rights to fish for commercial purposes may intersect with quota allocations. Those rights are not extinguished by this instrument but may be managed through separate provisions.

Businesses that provide services to the fishery, such as fuel suppliers, chandlers, vessel maintenance, and insurance, are indirectly affected by the volume of fishing activity. A significant change in TACC, especially the loss of two species for the 2027 season, will reduce overall effort and thus demand for those services in the latter part of the determination's life.

The determination does not itself create duties or rights beyond what is already in the Act and Management Plan. Its effect is to set the numerical caps that, in combination with quota ownership, define the right to take fish. Each commercial fisher who holds quota units for a species has the right to take that species up to their quota allocation, but that right is limited by the total TACC. If the TACC is increased, the total amount of quota units may be increased, but the determination does not adjust individual quota holdings. The right is derivative of the quota system under the Management Plan.

The key duty flowing from the TACC is the duty not to exceed the total allowable catch. This duty falls on the fishery as a whole, enforced through individual quota holders. Each holder must ensure that their landings do not exceed the quota units they hold. AFMA is required to monitor total catch against TACC and if the TACC is reached, further fishing for that species must cease. That duty of AFMA to close the fishery when the TACC is reached is not in this determination but is in the Management Plan and the Act.

The determination also imposes a duty on the Minister or AFMA to ensure that the TACC figures are published and accessible. This instrument satisfies that obligation. Operators have a right to know the TACC before the season begins, which this determination provides for 2025, 2026 and 2027. However, the absence of TACCs for broadbill swordfish and striped marlin for 2027 means that quota holders for those species effectively have no rights to take them in that year unless a new determination is made. That is a significant constraint on their property rights in quota units. Quota units are a form of limited-term statutory entitlement, and the removal of a TACC effectively makes quota units for that species valueless for that season. This raises questions about compensation, or at least about the economic stability of investment in quota.

The determination does not create any duty to report catch, logbook requirements, or data submission. Those are in the Management Plan and other instruments. But the TACC is the reference point against which compliance with those duties is measured. If a fisher lands more than their quota, they have exceeded their right and may be subject to enforcement.

Penalties for exceeding a TACC or taking a quota species without sufficient quota are not contained in this determination. They are set out in the Fisheries Management Act 1991, particularly in Part 6 (Offences). The Act provides for maximum penalties of up to 500 penalty units for a body corporate and 100 penalty units for an individual for taking fish without a fishing permit or in breach of a condition. The determination sets a condition that the total catch must not exceed the TACC, so a contravention would be an offence under the Act. By way of illustration, at current penalty unit values (around $313 as of 2024), a maximum penalty for an individual could be $31,300, and for a body corporate $156,500, though courts have discretion.

Enforcement is carried out by AFMA, which has a compliance branch and can use surveillance, at-sea inspections, port inspections, and audits of catch records and quota holdings. AFMA can also impose civil penalties, issue infringement notices, or suspend or cancel fishing permits for serious or repeated non-compliance. The determination itself does not contain enforcement mechanisms; it is purely a numerical specification.

One important enforcement consequence is that if the TACC for a species is not set (as for broadbill swordfish and striped marlin in 2027), then any commercial take of those species would be unlawful regardless of whether the fisher holds quota. The quota could not be used because there is no TACC to allocate it against. That is a more severe restriction than a mere reduction. Fishers who target those species in 2027 would be at risk of prosecution for taking a fish without authorisation.

There is also a practical enforcement challenge: how will AFMA determine when the TACC has been reached? The determination does not set catch triggers or monitoring requirements. AFMA relies on real-time or near-real-time catch reporting from fishers. Delays in reporting can lead to overfishing. The instrument does not address that risk.

Because this is a legislative instrument, it is reviewable by the Administrative Appeals Tribunal and subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977. A person affected by the TACC setting could challenge it if they believe it was made without proper authority, was procedurally unfair, or was unreasonable. But the instrument provides no substantive reasoning, making a merits review difficult without access to the underlying analysis.

This determination operates within the hierarchy of the Fisheries Management Act 1991, which is the enabling statute. The Act sets the broad objectives (ecologically sustainable development, maximising economic returns, etc.) and establishes AFMA and the statutory fishing rights framework. The determination is subordinate to the Act; if the Act is amended in a way that conflicts, this determination may be impliedly repealed or invalid.

The Management Plan (Eastern Tuna and Billfish Fishery Management Plan 2010) is a legislative instrument made under section 17 of the Act. The determination is made under sections 1.3 and 3.2 of that plan, so it must be consistent with the plan's terms. The plan itself will contain rules about allocation of quota, carryover, transfer, and monitoring. The determination only sets the seasonal TACC and season; it does not override those plan rules.

The determination interacts with the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Any TACC setting may need to be consistent with an approved wildlife trade operation (WTO) or a fishery assessment under the EPBC Act. If the TACC is considered to put a listed threatened species at risk, the EPBC Act might impose additional conditions. This determination does not reference any EPBC Act assessment.

International law also interacts. Australia is party to the Western and Central Pacific Fisheries Commission (WCPFC) and the Indian Ocean Tuna Commission (IOTC), depending on the geographic range of the fishery. The TACCs are likely (though not stated) to reflect conservation and management measures adopted by those regional fisheries management organisations (RFMOs). For example, WCPFC measures on bigeye tuna and yellowfin tuna may cap catches. If the TACC exceeds Australia's international allocation, Australia could be in breach of its obligations. The determination does not mention RFMO allocations, but they are a practical constraint behind the numbers.

The determination also intersects with state and territory laws if the fishery extends into coastal waters. The Eastern Tuna and Billfish Fishery is generally a Commonwealth fishery, but there are overlapping jurisdictions. The Offshore Constitutional Settlement agreements may apply. Operators should be aware that state laws on fish size limits, gear restrictions, or marine parks may apply in certain areas.

Work health and safety laws, biosecurity laws, and maritime safety laws also apply to fishing operations. They are not addressed in this determination but must be complied with alongside the TACC.

Tax law interacts indirectly: the TACC affects the value of quota units, which are depreciable assets for some operators. A reduction or elimination of TACC for a species may affect asset valuations and tax treatments.

This is a new determination. It is designated as "No. 2" for 2024, suggesting there was a "No. 1" earlier in 2024, but that instrument is not provided. The "No. 2" may be a replacement or an amendment to a previously published TACC. Without the earlier instrument, it is impossible to say what changed. However, the existence of a "No. 2" indicates a revision within the same calendar year. That may reflect updated stock assessments, stakeholder consultation outcomes, or an administrative correction. Practitioners should locate the earlier determination to see whether TACCs have increased or decreased. The instrument also does not state whether it repeals or revokes any earlier determination. Section 5 says it ceases on 31 December 2027, but it does not say it commences on a specific date. The instrument would operate from the date it is registered on the Federal Register of Legislation, presumably in late 2024. Because it applies to the 2025, 2026 and 2027 seasons, it supersedes any earlier TACC for those years.

The instrument has no internal amendment history because it is a single, static determination. Any future amendments would be made by a "No. 3" or another variation. The determination allows for revocation at any time before 2027. If new scientific data emerge, the TACCs could be revised via a new determination. That creates a degree of regulatory uncertainty; operators who have made business decisions based on the 2025 and 2026 TACCs may find those numbers altered after the season starts, if AFMA acts quickly.

One notable feature: the determination sets TACCs for three years out, which is relatively long for fisheries management. Usually TACCs are set annually. A three year outlook reduces uncertainty for industry but also means that if stocks decline sharply, the TACC cannot be reduced without a new determination. That is a risk for conservation and for the long term viability of the fishery.

There is no litigation history recorded in the source document. The determination was only recently made. However, one can anticipate potential avenues for future litigation. First, judicial review under the ADJR Act: a person aggrieved by the TACC could argue the decision maker took irrelevant considerations into account or failed to take relevant ones. The instrument provides no reasons, so the applicant would need to access internal decision documents.

Second, constitutional challenges: if a TACC effectively extinguishes fishing rights without compensation, there might be an argument under section 51(xxxi) (acquisition of property on just terms). Quota units are a statutory right, and drastically reducing or eliminating the TACC for a species could be argued to be an acquisition. However, the High Court has held that statutory fishing rights are not constitutionally protected property in the same way as freehold land. The risk is low but not zero.

Third, challenges under the Fisheries Management Act itself: a court could be asked to interpret whether the determination is consistent with the objectives of the Act. For example, if the TACC for yellowfin tuna is increased without scientific justification, an environmental group might argue it is inconsistent with ecologically sustainable development.

Fourth, challenges by commercial fishers based on procedural fairness: if the determination was made without adequate consultation, it could be invalidated. The instrument does not mention consultation. Under the Act, AFMA must consult with the relevant management advisory committee and likely with industry groups. Any failure could be grounds for review.

Fifth, case law on quota systems in other fisheries may be relevant by analogy. For instance, the Federal Court has considered the meaning of "total allowable catch" in the context of the Southern Bluefin Tuna Fishery. Practitioners should search for cases under the Seafood Industry Australia and similar litigation.

Because this is a new determination, no cases have cited it yet. Litigation history will accumulate after the 2025 season, especially if any species is overfished or if the TACC for swordfish or marlin becomes zero.

Several traps for the unwary exist in this determination. The most significant is the disappearance of broadbill swordfish and striped marlin from the 2027 TACC table. A reader who only reviews the 2025 and 2026 tables might assume continuity. The 2027 table is missing two species entirely. Operators holding quota for those species must assume that without a TACC there is no lawful commercial take in 2027. If they plan capital investments or enter long term supply contracts for swordfish or marlin extending into 2027, they face a risk that the quota becomes unusable. AFMA may issue a subsequent determination setting a TACC for those species for 2027, but that is not guaranteed. The determination itself provides no indication of its future amendment.

A second trap concerns the yellowfin tuna increase. The TACC rises from 2,400 to 2,880 tonnes in 2026 and remains at 2,880 tonnes in 2027. That is a 20% increase. Operators may assume they can take more yellowfin, but the TACC is the total for the fishery, not per operator. Individual quota units must be sufficient. The increase suggests that AFMA expects the stock can support higher catch, but it also may reflect an undercatch in prior years. Operators should check whether their individual quota entitlements have been increased accordingly.

Third, the whole weight measurement is critical. If fish are processed at sea (e.g., gilled and gutted), the weight recorded must be converted to whole weight using an agreed conversion factor. The determination does not specify conversion factors; those are in other instruments. Using an incorrect factor could lead to under reporting and unintentional overfishing of the TACC.

Fourth, the cessation date: 31 December 2027. After that date, this determination is no longer in force. If no replacement is made before then, the fishery will operate without a TACC for 2028. That could lead to a shutdown until a new instrument is registered. The three-year window may lull operators into complacency. They must monitor AFMA's publications in 2027 for a replacement.

Fifth, the instrument is silent on record keeping and reporting requirements. Those are elsewhere. But if a fisher fails to submit catch returns on time, they may not know when the TACC has been reached. The determination does not, for example, mandate a precautionary closure once 90% of TACC is reached. Fishers relying solely on this instrument may be unaware of the need for daily tracking.

Sixth, the determination does not address bycatch or discards. If a fisher catches a quota species and discards it dead, that still counts against the TACC. The Management Plan may have rules on discarding, but the determination does not. Operators must understand that any mortality, even from released fish, may be counted.

Seventh, the instrument uses the term "quota species" but does not list the scientific names. That could cause confusion if common names overlap with other species. For example, "broadbill swordfish" is unambiguous, but "striped marlin" could be confused with other marlin species. Operators should verify the definitions in the Management Plan.

Compliance with the TACC set by this determination requires a systematic approach that goes beyond merely reading the instrument. The first step is to confirm the exact TACC figures for each species for the relevant season. Obtain the determination from the Federal Register of Legislation and extract the numbers. Note that for 2025 and 2026, five species are listed; for 2027, only three. If your operation intends to target broadbill swordfish or striped marlin in 2027, you must seek a current TACC from a later determination. Do not assume it will be set.

Second, reconcile your quota holdings against the TACC. Your individual quota units are a share of the TACC. If the TACC increases, your share may increase proportionally if AFMA issues new quota. If the TACC decreases, your effective right to catch is reduced. You must know your exact quota entitlements for each species. Contact AFMA or the fishery manager for a current register.

Third, implement a real time catch monitoring system. Because the TACC is a hard cap for the entire fishery, you cannot rely on your own catch alone. The TACC may be reached by other fishers before you have caught your allocation. Subscribe to AFMA's catch data reports or industry communication channels. Many fisheries have a quota reconciliation process that updates weekly or monthly. Use that data to pace your fishing effort. If the TACC is approaching, you may need to stop fishing for that species even if you still have unused quota, because the fishery will close.

Fourth, ensure accurate weighing and reporting. All landings of quota species must be weighed and reported in whole weight. If you process fish at sea, keep records of conversion formulas. Use an Australian Standard or a AFMA approved conversion factor. Over report rather than under report to avoid exceeding the TACC. Report catch as soon as possible after landing.

Fifth, plan for the cessation date. The instrument expires at the end of 2027. By mid 2027, check for a new determination for 2028. If none is published, contact AFMA to ascertain the status. Do not fish for any quota species in 2028 until a valid TACC is in place.

Sixth, document your compliance actions. Maintain records of quota purchases, catch logs, conversion factors, and AFMA correspondence. In the event of an audit or investigation, these records will demonstrate due diligence. The Fisheries Management Act allows for a defence of mistake of fact in some circumstances, but a paper trail is essential.

Seventh, be aware of the uncertainty around broadbill swordfish and striped marlin in 2027. If you hold quota for those species, consider leasing it to operators in 2025 or 2026 while it still has value. Do not plan any capital expenditure targeting those species beyond 2026 until clarity emerges. This is a practical risk management step not mandated by law but critical to avoid financial loss.

Eighth, review the Management Plan and other relevant instruments for additional duties. This determination is only one piece. The Management Plan contains rules on quota transfer, carryover (or zeroing), season dates for specific gear types, and restrictions on fishing methods. Those rules may impose additional limits even if you have sufficient quota.

Ninth, maintain communication with your industry body and with AFMA. TACCs can be varied mid season if new information arises. Stay informed about proposed amendments to this determination. A “No. 3” determination may change the numbers for 2026 or 2027.

Tenth, if you are uncertain about any figure or its application, seek legal advice and possibly an independent fisheries management consultant. The financial consequences of non compliance (penalties, forfeiture of catch, loss of quota) can vastly exceed the cost of professional advice. The determination may be small, but its effects on your business are large.