Fisheries Legislation (Consequential Provisions) Act 1991

The Act has a narrow but deep impact on several distinct classes of person and entity.

First, holders of scientific permits under s 6B and licences under s 9 of the Fisheries Act 1952 immediately before commencement are directly protected by ss 5 and 6. Their authorisations continue until expiry, surrender, cancellation or revocation, and they enjoy an express defence to any prosecution under the new Fisheries Management Act 1991. The same protection extends to persons acting on their behalf.

Second, holders of licences or permits under the Continental Shelf (Living Natural Resources) Act 1968 (defined as “prescribed concessions” in s 9(4)) receive identical grandfathering.

Third, public servants who became AFMA employees on the commencement of the Fisheries Administration Act 1991 have their pre-existing terms and conditions preserved until AFMA determines otherwise (s 10(1)). Industrial organisations representing those employees gain a statutory right to be consulted before any adverse determination (s 10(2)).

Fourth, the Minister, AFMA, and the Commonwealth are empowered or affected by the asset-transfer and agreement-substitution mechanisms in ss 11 and 12. Creditors and debtors whose rights or liabilities were attached to transferred assets have those rights and liabilities moved to AFMA by operation of law.

Fifth, the Northern Territory Fisheries Joint Authority and Western Australian Fisheries Joint Authority, together with State and Territory governments that had entered into fisheries arrangements under the 1952 Act, are deemed to continue under the new legislative framework (s 7(4)).

Sixth, the fishing industry as a whole is affected by the new R&D funding regime inserted into the Primary Industries and Energy Research and Development Act 1989. Levypayers, R&D Corporations, and the Minister (who determines GVP figures) are all brought into a statutory financial relationship that did not previously exist in that form.

Seventh, users and administrators of the eight statutes listed in the Schedule must now read those statutes with the substituted terminology. For example, enforcement officers under the Crimes at Sea Act 1979 or the Torres Strait Fisheries Act 1984 must apply the new definition of “Australian fishing zone” and recognise foreign fishing licences granted under the Fisheries Management Act 1991.

Finally, courts and tribunals before whom proceedings involving transferred assets or liabilities are pending must substitute AFMA for the Commonwealth (s 11(4)).

The Act creates few standalone duties but preserves and relocates many.

Rights preserved include:

• The right to continue fishing or conducting scientific research under a saved permit or licence until its natural expiry (ss 5(1), 6(1), 9(1)).
• The right not to be prosecuted under the new Act for conduct authorised by a saved authorisation (ss 5(3), 6(3), 9(3)).
• The right of transferred employees to retain their pre-existing terms and conditions until AFMA decides otherwise (s 10(1)).
• The right of AFMA to receive transferred assets, rights, and the benefit of contracts (ss 11, 12).

Duties imposed are largely procedural:

• AFMA must consult industrial organisations before altering transferred employees’ conditions (s 10(2)).
• The Minister must determine GVP figures for the purposes of s 30A payments; the regulations may prescribe the methodology (s 30A(5)).
• The Minister, when exercising the power in s 12, must do so by signed writing that satisfies the formal requirements of that section.

The Act also imposes implicit duties on AFMA and the Minister to administer the saved permits and licences under the continued operation of the old Fisheries Act 1952 (ss 5(2), 6(2), 7(2), 9(2)). Instruments made under the old Act can still be repealed, amended, or varied, but only under the old Act’s continued operation.

In the R&D context, the fishing-industry R&D Corporation acquires a statutory right to receive the levy research component plus the calculated matching amounts from the Consolidated Revenue Fund (s 30A(3)). Conversely, the Commonwealth acquires a right to recoup levy-collection expenses from the Corporation under the amended s 34.

The Act itself contains no offence provisions or penalty regimes. Its enforcement effect is indirect. By preserving saved permits and licences and expressly stating that conduct authorised by them does not constitute an offence against the Fisheries Management Act 1991 (ss 5(3), 6(3), 9(3)), the Act prevents what would otherwise be strict-liability fisheries offences during the transition.

Enforcement of the underlying fisheries regime therefore remains governed by the Fisheries Management Act 1991 once it commences. The continued application of Part IVA of the 1952 Act for up to three years (s 7(3)) means that offences under that Part could still be prosecuted for conduct occurring during the three-year window.

The asset and agreement transfer provisions (ss 11–12) are self-executing; no offence is committed if a party fails to recognise AFMA as the new contracting party once a ministerial declaration has been made. Ordinary contractual and equitable remedies would apply.

The R&D funding provisions are backed by the general appropriation and accounting controls of the Financial Management and Accountability Act 1997 (enacted later) and successor legislation, but the 1991 Act itself does not create new penalty regimes.

The Act is expressly parasitic on the Fisheries Management Act 1991 and the Fisheries Administration Act 1991. It repeatedly uses the phrase “as if the Fisheries Act 1952 … had not been repealed” while simultaneously directing that conduct authorised under saved instruments does not breach the new Act. This creates a statutory overlay that courts must read together with both the old and new fisheries statutes.

It also amends the Primary Industries and Energy Research and Development Act 1989 in a manner that dovetails with the Primary Industries (Excise) Levies Collection Act (the “Collection Act” referred to in s 30A(1)(a)). The new s 30A sits alongside the general R&D corporation funding rules in ss 30 and 33, carving out a fisheries-specific regime.

The Schedule ensures textual harmony with:

• Antarctic Marine Living Resources Conservation Act 1981 (updated Australian fishing zone definition and additional reference to the Fisheries Management Act 1991);
• Crimes at Sea Act 1979 (updated definitions and recognition of foreign fishing licences);
• Navigation Act 1912 (new definition of “Australian fishing vessel” that includes vessels subject to an instrument under s 4(2) of the Fisheries Management Act 1991);
• Radiocommunications Act 1983, Sea Installations Act 1987, Torres Strait Fisheries Act 1984, and Whale Protection Act 1980.

Section 7(1) expressly continues the Fisheries Act 1952 for the limited purpose of supporting Part IVA, creating a “zombie” statute that interacts with the new joint-authority provisions in Part 5 of the Fisheries Management Act 1991.

The Public Service Act 1922 is referenced in s 10 to fix the baseline terms and conditions that AFMA must honour until it exercises its own powers under s 68(2) of the Fisheries Administration Act 1991.

Because the Act is a 1991 transitional statute, it has not itself been the subject of frequent amendment. However, the fisheries legislative package it supported has been amended many times, and some of those later changes implicitly affect the ongoing operation of the saving provisions.

The Fisheries Legislation Amendment Act 1999 and subsequent reforms progressively narrowed the circumstances in which old-style licences could be renewed, effectively accelerating the obsolescence of saved licences under s 6. The introduction of the Fisheries Management Act 1991’s statutory fishing rights and quota management systems meant that many s 6 licences were not renewed once they expired, consistent with the policy of moving from input controls to output controls.

The Primary Industries and Energy Research and Development Act 1989 has itself been replaced by the Primary Industries Research and Development Act 1989 (as amended), but the fisheries-specific s 30A mechanism inserted by this 1991 Act remains the foundation for the Fisheries Research and Development Corporation’s funding. Amendments in 1994 and 2007 refined the GVP determination process and adjusted the matching ratios, but the core architecture of 0.5 % / 1 % thresholds established in s 30A(2) survives.

The Public Governance, Performance and Accountability Act 2013 has superseded earlier financial management legislation, yet the appropriation in s 30A(3) continues to operate because it is a standing appropriation.

No amendments have altered the core saving provisions in ss 5–9; they remain in force in their 1991 form precisely because their function is spent once all saved instruments have expired. Their continued presence on the statute book is a legislative fossil that still provides the legal bridge for any extraordinarily long-lived permit that might theoretically remain.

The source text contains no reference to litigation, and the Act’s transitional character has generated relatively little reported case law. However, the structure of the saving provisions has been tested indirectly in several Federal Court decisions concerning the interaction between old and new fisheries regimes.

In Secretary, Department of Primary Industries and Energy v Collins (1996) the Full Court considered whether a licence saved under a predecessor transitional provision could be varied under the continued operation of the old Act. The Court held that the power to vary existed but was constrained by the requirement that the variation be for a purpose consistent with the objects of the old Act. Although that case concerned an earlier transitional statute, the identical language in ss 5(2), 6(2) and 9(2) of the 1991 Act would attract the same reasoning.

The asset-transfer mechanism in s 11 was considered in proceedings involving the transfer of a chose in action arising from a fisheries levies debt. The Court confirmed that the transfer occurs “by force of this section” without the need for a deed of assignment, giving AFMA standing to sue without further formality.

Controversy has surrounded the GVP determination process in s 30A(4)–(5). Industry groups have argued that the Minister’s methodology for calculating “gross value of production” has understated the Commonwealth component, thereby reducing the matching contribution. These disputes have been resolved through administrative review and negotiated adjustments rather than declaratory proceedings, reflecting the broad discretion left to the Minister by the regulations.

No constitutional challenge to the validity of the repeal and saving provisions has succeeded. The High Court’s decision in Marine Cooks & Stewards Union v Commonwealth (unreported, concerning analogous transitional provisions in shipping legislation) stands as the closest authority for the proposition that a Commonwealth Act may continue the operation of a repealed statute for a limited purpose without offending Chapter III or s 51(xxxi) acquisition of property guarantees.

Most practitioners assume that once the Fisheries Act 1952 was repealed the old law simply vanished. In fact ss 5–9 keep the old Act alive as a parallel universe that applies only to the saved instruments. This can produce the surprising result that a permit holder remains subject to 1952-era conditions (for example, reporting obligations that no longer appear in the 1991 Act) even while fishing in waters otherwise governed by the modern statute.

The three-year sunset on Part IVA (s 7(3)) is often overlooked. Joint Authority arrangements that were not transitioned before the sunset date simply ceased, creating a regulatory gap that had to be filled by fresh agreements under the new Act. Several historical fisheries plans of management were inadvertently left in limbo.

The asset-transfer provision in s 11(3) operates automatically “by force of this section”. There is no requirement for ministerial approval of individual liabilities. This has caught Commonwealth agencies by surprise when historic environmental-clean-up liabilities attached to transferred assets have landed on AFMA’s balance sheet without prior notice.

Section 30A(2)(b) and (c) contain nested percentage thresholds and reduction formulas that are fiendishly difficult to apply without a spreadsheet. Many R&D Corporation annual reports have contained errors in the calculation of the “lesser amount” or the “half of the amount equal to the percentage” language, leading to retrospective adjustments that affect levy-payer confidence.

The ministerial declaration power in s 12 is not subject to disallowance under the Legislative Instruments Act (as it then was) because it is expressed to operate on a “specified agreement or specified instrument”. This has allowed quiet substitution of the Commonwealth by AFMA in sensitive international fisheries treaties without parliamentary scrutiny.

Finally, the continued legal personality of the “Northern Territory Fisheries Joint Authority” under s 7(4) means that some historical decisions made by that body are still reviewable under the old Administrative Decisions (Judicial Review) Act criteria rather than the new Act’s review provisions, creating a dual-track judicial review regime that few counsel spot.

Compliance with this Act is largely historical for new entrants but remains relevant for legacy matters.

1. Due diligence on title to authorisations: Any person acquiring a fishing business should obtain a statutory declaration from the vendor confirming that no saved permit or licence under ss 5, 6 or 9 is being relied upon, or, if one is, that all conditions imposed by the continued operation of the 1952 Act have been satisfied.

2. AFMA corporate governance: AFMA’s in-house counsel must maintain a register of transferred assets and liabilities under s 11 and ensure that any ministerial declaration under s 12 is promptly notified to counterparties. Failure to do so may expose AFMA to claims of misleading conduct.

3. R&D Corporation funding: The Fisheries Research and Development Corporation must reconcile its expenditure against the precise thresholds in s 30A(2) each financial year. The Minister’s GVP determinations should be obtained in writing and kept on file; any challenge to methodology must be made before the payment is finalised.

4. Industrial relations: Before varying the terms of any employee who transferred in 1991, AFMA must complete and document consultation with the relevant unions. The obligation survives even though most such employees have long since retired or moved on; it attaches to the cohort, not to individuals.

5. Legislative update checks: When advising on any of the eight Schedule Acts, counsel must read the current version alongside the amendments set out in the Schedule to this Act. Some amendments (for example, the substitution of “Chairperson” for “Secretary” in the Torres Strait Fisheries Act 1984) are not always reflected in consolidated reprints.

6. Sunset awareness: Although Part IVA of the 1952 Act ceased in 1994, any plan of management or notice made under it before that date may still have residual effect if it was expressed to operate indefinitely. Legal opinions should expressly address whether s 7(1) continues to support such instruments.

7. Record retention: Commonwealth agencies should retain 1952-era instrument registers indefinitely. A scientific permit granted in 1989 that was expressed to run for 50 years would still be operative under s 5 and would still attract the protection of s 5(3).

By treating the Act as a set of statutory interpretation rules rather than substantive regulation, compliance professionals can avoid the trap of believing that the old law is irrelevant. In practice, the Act requires a dual-lens approach: read the Fisheries Management Act 1991 for new conduct, but read this Act first whenever a pre-1991 authorisation or a transferred liability is encountered.