Fisheries Administration Act 1991

The Act directly affects:

• AFMA commissioners and the CEO, whose appointment, eligibility, conduct, and remuneration are governed by Part 2 Divisions 2-4.
• AFMA staff members, who are employed under the Public Service Act 1999 and form part of a Statutory Agency headed by the CEO (section 68).
• Members of management advisory committees, whose appointment, term, disclosure obligations, and remuneration are set out in Division 5.
• Members of the Fishing Industry Policy Council and its working groups, governed by Part 3.
• The peak industry body, which must be consulted on corporate plans (section 72) and receive annual reports (section 89).
• Fishery stakeholders who may enter co-management arrangements under section 88.
• Any person who holds a plan-of-management-level interest under an associated law, since the Authority's functions under section 7(1)(m) include establishing and allocating fishing rights.

Indirectly, the Act affects anyone who fishes in Commonwealth waters, holds fishing concessions under the Fisheries Management Act 1991, or operates a foreign vessel in the Australian fishing zone, because the Authority created by this Act administers those rights.

Commissioners: disclosure of interests. Section 20 requires commissioners to give the Minister a written statement of material personal interests before taking office, and to continue disclosing interests under section 29 of the PGPA Act 2013 to the Minister (not merely to the Authority's governance body). The CEO must maintain a register of all such disclosures (section 20(5)).

CEO: foreign compliance directions. Under section 10C, the Minister may give written directions to the CEO about foreign compliance functions in particular cases. The CEO must comply. The Minister must table the direction in each House within 15 sitting days unless national interest prevents it.

Commission: corporate and annual operational plans. Division 7 requires the CEO to consult the peak industry body before preparing a corporate plan, to obtain Ministerial approval of corporate plans (section 73) and annual operational plans (section 78), and to submit proposals for variations (sections 74-79). Annual operational plans must be lodged before 1 June each year and set out performance indicators.

Annual reporting. The annual report required under section 46 of the PGPA Act must include, per section 87, an assessment of how operations contributed to the annual operational plan objectives, particulars of any directions given by the Minister under section 91, and an evaluation against performance indicators.

FIPC: reporting. The Council must give the Minister an annual report of its operations by as soon as practicable after 30 June each year (section 113). The Minister must table it within 15 sitting days.

Management advisory committees: interest disclosure. Members must disclose pecuniary and non-pecuniary interests to the committee under section 64C and in writing to the Authority under section 64D. Failure to comply can lead to termination under section 64B.

Ministerial directions in exceptional circumstances. Section 91 empowers the Minister to direct the Authority in writing concerning its functions and powers, but only if exceptional circumstances mean that non-direction would cause the Authority's activities to conflict with major government policies. The Minister must notify the Authority in advance, give the Chairperson or CEO an opportunity to discuss the proposed direction, and cause a Gazette notice and tabling within 15 sitting days. Where a Joint Authority manages a fishery under Division 3 of Part 5 of the Fisheries Management Act 1991, references to the Minister are taken to refer to the Joint Authority (section 91(5)).

CEO ministerial directions re foreign compliance. Section 10C gives the Minister an additional, case-specific direction power over the CEO's foreign compliance functions without requiring the exceptional circumstances threshold of section 91.

Commission delegation. The Commission may delegate any domestic fisheries management function or power to the CEO (section 92(1)). The CEO may sub-delegate to AFMA staff, committees, consultants, contractors, fisheries officers, and, importantly, primary stakeholders under a co-management arrangement (section 92(3)(f)). This last category is notable: it enables fishery stakeholders to exercise regulatory functions.

CEO delegation. The CEO may delegate foreign compliance functions to staff, committees, consultants, contractors, and fisheries officers under either the Fisheries Management Act 1991 or the Torres Strait Fisheries Act 1984 (section 93).

Fees. The Authority may charge reasonable fees for work done, services provided, or information given (section 94). Fees must not amount to taxation and are payable to the Commonwealth.

Information collection and disclosure. Section 7(1)(gaa) and (gb) authorise AFMA to collect and disclose information (including personal information and e-monitoring data) about possible breaches of Australian or foreign law, border control, fisheries administration, and research, in accordance with the relevant fisheries Acts or their regulations.

Consultation. Section 9 gives the Authority a broad power to consult with any persons, bodies, or governments having expertise or interests relevant to its functions, including industry representatives, recreational fishing groups, State and Territory governments, and scientific experts.

FIPC working groups. Under section 109, the Council may establish working groups for up to six months, extendable by resolution. Working groups prepare written reports for the Council, and dissenting members may require their views to be included in the report (section 109(8)).

The Fisheries Administration Act 1991 does not itself create criminal offences or civil penalty provisions. Penalties for fishing without authorisation, breaching permit conditions, and related conduct are found in the Fisheries Management Act 1991. This Act's enforcement mechanisms are primarily administrative.

The main administrative consequences under this Act are:

• Termination of commissioner appointments for misbehaviour, incapacity, inefficiency, incompetence, bankruptcy, unexplained absences, engaging in conflicting paid employment, or failure to disclose interests (section 21).
• Automatic termination of commissioner appointments where a commissioner acquires a fishing concession, executive position in a fishing industry body, or majority shareholding in a fishing company (section 21(3)).
• Termination of management advisory committee member appointments on similar grounds (section 64B).
• FIPC members may have appointments terminated or be excluded from meetings and allowances by Ministerial direction for misbehaviour, incapacity, bankruptcy, or unexplained absences (section 106).

Commissioner appointments. Made by the Minister in writing (section 12(1)). Appointments must be for no more than five years (section 12(8)). The Minister must ensure commissioners collectively hold expertise across all prescribed fields (section 12(5)).

Corporate planning cycle. The CEO must give the Minister an annual operational plan before 1 June each year (section 77), covering the following 12-month period commencing 1 July. The Minister may approve or request revision. The plan comes into force at the commencement of the plan period or on the day the CEO receives notice of Ministerial approval, whichever is later (section 78(4)).

Ministerial tabling obligations. Directions under section 10C must be tabled within 15 sitting days unless national interest prevents it. Section 91 directions must be Gazetted and tabled within 15 sitting days. Annual reports (section 87) and FIPC reports (section 113) must be tabled within 15 sitting days of receipt.

AFMA public meetings. The Authority must hold public meetings at intervals of no more than one year for consultation with industry and the public (section 90). The Minister may direct additional meetings.

FIPC working groups. Operate for six months by default, extendable by Council resolution in additional six-month blocks (section 109(5)-(6)).

Annual report to peak industry body. After each annual report has been laid before Parliament, the Chairperson of the Commission must give a copy to the peak industry body and request a meeting to discuss the Authority's activities (section 89).

Fisheries Management Act 1991. The most significant related instrument. AFMA's operational powers, including the grant of fishing concessions, permits, and rights, the determination of plans of management, and the full suite of fisheries enforcement powers, are conferred by the Fisheries Management Act 1991 (referred to as an associated law). The terms AFZ, Australian-flagged boat, fishing concession, port permit, and scientific permit all take their meaning from that Act (section 4(1)).

Torres Strait Fisheries Act 1984. Also an associated law. The Authority has advisory and assistance functions in relation to that Act's administration, and delegation powers extend to officers under that Act.

Public Governance, Performance and Accountability Act 2013 (PGPA Act). Under section 5A, AFMA is a listed entity, the CEO is the accountable authority, and commissioners and staff are officials. The corporate planning and annual reporting obligations in Division 7 interact directly with sections 35 and 46 of the PGPA Act.

Public Service Act 1999. Staff assisting the CEO are employed under this Act and, with the CEO, form a Statutory Agency (section 68).

Remuneration Tribunal Act 1973. Commissioner, FIPC Chairperson, and MAC member remuneration is determined by the Remuneration Tribunal (sections 17, 67, 111). Certain offices are excluded from the definition of public office under that Act (sections 67(5), 111(6)).

Primary Industries Levies and Charges Disbursement Act 2024. Feeds into the AFMA Special Account formula: the research component payable to the Fisheries Research and Development Corporation must be deducted from levy amounts before crediting the Account (section 94E(1)).

Acts Interpretation Act 1901. Sections 33A and 33B of that Act apply, providing rules for acting appointments and participation in meetings by telephone or other means (sections 13, 14, 61).

National Environment Protection Council Act 1994. The definition of precautionary principle in section 4 cross-references clause 3.5.1 of the Intergovernmental Agreement on the Environment set out in the Schedule to that Act.

Dual direction powers. There are two separate Ministerial direction powers: the general exceptional-circumstances power over the Authority (section 91) and the case-specific power over the CEO's foreign compliance functions (section 10C). The thresholds and procedures differ. Practitioners advising the Authority or the Minister must identify which power applies.

Automatic termination of commissioners. Section 21(3) operates by force of the subsection: no Ministerial decision is needed. If a commissioner acquires a fishing concession or becomes an executive in a fishing company after appointment, the appointment automatically ends. The validation provision (section 21(5)) saves acts done before the automatic termination is recognised.

CEO is a commissioner. The CEO is within the definition of commissioner in section 4(1) but may not be a part-time commissioner and must be appointed on a full-time basis. The CEO may also be appointed Chairperson of the Commission (section 12(2)), creating a potential concentration of governance roles.

AFMA does not have separate legal personality. Section 5 Note makes this explicit. Proceedings are brought by or against the Commonwealth in the name of the Authority (section 94F). Contractual and financial obligations are Commonwealth obligations, not Authority obligations.

FIPC report publication rests with the Minister. Under section 101, the Council must not make a Council report public until the Minister does so. The Minister may withhold or redact a report on public interest grounds (section 101(3)). This limits the Council's ability to self-publish findings.

Co-management delegation extends to stakeholders. Section 92(3)(f) allows the CEO to sub-delegate Authority functions and powers to primary stakeholders under a co-management arrangement. This is a significant and sometimes overlooked mechanism: industry participants can be authorised to exercise management functions directly.

AFMA levy formula. The adjusted levy amount in section 94E deducts the Fisheries Research and Development Corporation research component and any Ministerial fishing-access determination before crediting the Account. A failure to account for the deductible component in levy calculations would result in double-crediting of those amounts.

Appointing a new part-time commissioner. A minister identifying a candidate must verify the candidate meets the expertise requirements in section 12(3)(a) (one or more of: fisheries management, fishing industry operations, recreational or Indigenous fishing, science, natural resource management, economics, business, law, public sector governance), does not hold any of the disqualifying positions listed in section 12(3)(b), and that the new appointment, together with sitting commissioners, gives the Commission collective expertise across all prescribed fields (section 12(5)). The appointment is made by written instrument (section 12(1)), for up to five years.

Minister issuing a direction to AFMA in a national emergency. If a sudden public health concern required immediate modification of fishing activity in a specific fishery, the Minister might consider a direction under section 91. Before issuing it, the Minister must be satisfied exceptional circumstances exist, must give the Authority written notice that a direction is being considered, and must give the Chairperson or CEO an opportunity to discuss it. The direction, once given, must be Gazetted and tabled in Parliament within 15 sitting days, and must appear in the annual report.

Industry body seeking to co-manage a fishery. A peak body representing licence holders in a Commonwealth fishery may enter a co-management arrangement with AFMA under section 88. Once the arrangement is in place, the CEO may sub-delegate Authority functions to a primary stakeholder (which could be the peak body or a represented holder) under section 92(3)(f). The scope of any such delegation must be within the functions delegated by the Commission to the CEO under section 92(1).

Setting up a management advisory committee for a new fishery. Where a plan of management for a fishery under an associated law requires a MAC, section 56(2) obliges the Authority to establish one. The Committee consists of a Chairperson, the AFMA staff member responsible for the fishery, and up to ten other members drawn from industry, recreational fishing, and research (section 60). Members serve for up to three years (section 63). They must disclose all pecuniary and non-pecuniary interests to the committee (section 64C) and in writing to the Authority (section 64D). Failure may result in termination.