Fisheries Management (Heard Island and McDonald Islands Fishery) (Closures) Direction 2019

The instrument rests on a small set of legal and operational concepts, each defined or referenced in the text. "Act" is defined as the Fisheries Management Act 1991 (s 4(1)). Several commonly used expressions (AFZ; fish; fishing; fishing concession) are noted as defined in section 4 of the Act; the Direction refers readers to those Act definitions rather than restating them (s 4, note). The word "Fishery" is used to mean the area defined in section 3 of the Management Plan for the Heard Island and McDonald Islands Management Plan, meaning the precise statutory boundary of the Fishery is in that Management Plan rather than in this instrument (s 4(1)).

Mackerel icefish is given a scientific definition: fish of the species Champsocephalus gunnari (s 4(1)). "Holder" means a person who holds a fishing concession issued under, or pursuant to, the Management Plan that authorises taking fish in the Fishery (s 4(1)). "Incidental take" is defined as taking fish unintentionally while fishing for commercial purposes (s 4(1)). Geographic coordinates are expressed using the World Geodetic System of 1972 (WGS72) (s 4(2)), so the area definitions and navigational requirements hinge on that datum.

Two geographic reference concepts appear. "Baseline" means the baseline established under international law or as determined by Proclamation under section 7 of the Seas and Submerged Lands Act 1973 from time to time; the instrument notes that, as at commencement, no such Proclamation is in force (s 4(1), note). The Australian-France Maritime Delimitation Agreement Southern Boundary is invoked as the starting reference point for the Heard Island Plateau definition in Schedule 2 (s 4(1); Schedule 2 item 1).

Structurally the Direction functions as subordinate legislation. It commences by operation of registration (s 2), is made under a statutory power in the Act (s 3), and contains Schedules which either repeal prior instruments (Schedule 1) or define the permitted Plateau area by geodetic segments (Schedule 2). The Direction contains a procedural note that incidental catches outside the Plateau will be decremented from a holder’s quota holding, linking the geographic prohibitions to quota accounting rather than to an explicit criminal sanction inside the instrument (note to s 6(1)).

The instrument expressly targets holders of fishing concessions authorising taking fish in the Heard Island and McDonald Islands Fishery and any person acting on a holder’s behalf (s 6(1)-(2); s 4(1) definition of "holder"). That definition ties the measure to concession-holders under the specific Management Plan; any person who fishes in the Fishery without being a concession-holder as defined in the Management Plan is not the explicit subject of the Direction’s prohibitions as drafted, although the Act’s broader regulatory regime (which the Direction is made under) will apply to other classes of operator as provided by the Act and the Management Plan (s 4(1)). The instrument therefore creates duties directed at concession-holders (and their agents), not a free‑standing obligation addressed generically to all vessels in the area.

Geographically affected parties are those who operate in the Fishery as defined by the Management Plan (s 4(1) definition of "Fishery"). The Direction narrows where mackerel icefish may be targeted to the Heard Island Plateau portion of that Fishery (s 6(1); Schedule 2) and prohibits fishing in a specific coastal band between 12 and 13 nautical miles of the Territory baseline (s 6(2)). Operators who habitually fish in parts of the Fishery outside the Plateau, including inside that 12-13 nm band, will face immediate behavioural constraints while the Direction is in force.

The instrument also affects quota accounting and resource use. The note to s 6(1) states that mackerel icefish taken as incidental take outside the Plateau will be decremented from the holder’s quota holding. That creates a financial and accounting effect on holders who incur incidental catches outside the permitted targeting area, because their quota balances will be reduced. The Direction repeals two earlier closure Directions (Schedule 1); parties who were complying with the prior Directions must recognise that those instruments are repealed and the current Direction defines the operative closures.

Finally, the instrument’s references to other legal materials require affected parties to consult and coordinate with those texts. The term "baseline" is tied to possible proclamations under the Seas and Submerged Lands Act 1973 and the Territory meaning is tied to the Heard Island and McDonald Islands Act 1953 (s 4(1)). The exact spatial implications therefore depend on coordinates, WGS72 datum, the Management Plan’s definition of the Fishery, and any relevant international boundary (the Australian‑France Maritime Delimitation Agreement Southern Boundary) referenced in Schedule 2.

The Direction creates two clear duties for holders and persons acting on their behalf. First, they must not engage in fishing that targets mackerel icefish outside the Heard Island Plateau during the period the instrument is in force (s 6(1)). "Targeting" is used in contrast with incidental take; the instrument differentiates deliberate targeting from accidental capture, and treats incidental take outside the Plateau as subject to quota decrement rather than a distinct prohibition (note to s 6(1)). Second, they must not fish anywhere in the part of the Fishery that is between 12 and 13 nautical miles of the Territory baseline while the instrument is in force (s 6(2)). These are prohibitory duties rather than obligations to take particular affirmative steps; the operative words are "directed not to engage in fishing".

Rights in the instrument are implicit rather than expressed as positive entitlements. The Direction by negative prescription leaves holders able to fish for mackerel icefish inside the Heard Island Plateau; the instrument does not prohibit targeting mackerel icefish within that described area, so the concession-holder’s authority to take fish within the allowed area remains, subject to the Management Plan and any quota arrangements (s 6(1); Schedule 2). The instrument also preserves the legal framework of the Management Plan and the Act by defining terms with reference to those documents rather than superseding them (s 4(1)).

Operational duties arise from definitions. Because "holder" is a concession-holder under the Management Plan, a person claiming to be unaffected must verify concession status against the Management Plan (s 4(1)). The instrument requires geographic precision because coordinates are WGS72 (s 4(2)) and Schedule 2 defines the Heard Island Plateau in terms of meridians, parallels and geodesics. Holders therefore have a practical duty to ensure vessels and navigation systems are referenced to WGS72 and to implement procedures preventing targeted fishing outside the plateau and within the 12-13 nm band.

The instrument also creates a quota-accounting duty: incidental catch of mackerel icefish outside the Plateau will be decremented from a holder’s quota holding (note to s 6(1)). That ties compliance with the spatial prohibitions to quota consequences. The Direction does not articulate appeal rights, review mechanisms, or how decrements will be administered; those matters rest with the Act and the Management Plan but are not specified in this text. The Direction repeals two prior closure directions (Schedule 1), which removes any overlapping or conflicting older duties those instruments contained.

The Direction itself does not set out criminal penalties, civil sanctions or detailed enforcement procedures inside its text. It is made under subsection 41A(2) of the Act (s 3) and contains directions (s 6), but it does not contain express penalty provisions or specify a compliance regime within the instrument. The only explicit operational enforcement-like mechanism contained in the Direction is the administrative outcome that incidental mackerel icefish taken outside the Plateau will be decremented from a holder’s quota holding (note to s 6(1)). That creates a clear administrative consequence linked to quota accounting but is not framed in the instrument as a penalty or offence.

Given the Direction’s silence on penalties, any specific criminal, civil or administrative enforcement powers, detailed compliance procedures, surveillance responsibilities or infringement mechanisms would derive from the Act, the Management Plan and other statutory instruments rather than from this Direction itself. The Direction indicates it is made under the Act (s 3) and draws definitions from the Act and from the Management Plan (s 4(1)), so enforcement would be implemented within the broader regulatory framework those instruments provide. The Direction, however, does not state which agency will exercise enforcement functions, what evidentiary standards will apply, or the processes for determining quota decrements.

For holders and their agents the practical enforcement signal is twofold. First, the prohibitions are precise and geographically limited, so compliance is amenable to monitoring by vessel positioning and logbooks tied to the WGS72 datum (s 4(2); Schedule 2). Second, the explicit quota-decrement note connects incidental catches outside the Plateau to quota balances, which is an immediate economic consequence rather than an expressly framed sanction in the Direction (note to s 6(1)).

Implementation risk and uncertainty therefore reside in the absence of enforcement detail in the Direction. Holders must look to the Act and Management Plan for enforcement mechanisms, and they should expect that enforcement will likely rely on spatial monitoring, catch reporting and quota accounting; the Direction itself does not prescribe those enforcement modalities or penalties.

The Direction is explicitly made under the statutory head of power in subsection 41A(2) of the Fisheries Management Act 1991 (s 3). It therefore operates as subordinate legislation within the framework of that Act. The instrument repeatedly cross-references definitions and provisions that are external to the instrument and located in other instruments. It declares that several expressions (AFZ; fish; fishing; fishing concession) are defined in s 4 of the Act (s 4(1) note). It defines "Act" as the Fisheries Management Act 1991 and "Management Plan" as the Heard Island and McDonald Islands Management Plan (s 4(1)). The Fishery boundary itself is defined in s 3 of the Management Plan, so the precise geographic scope of the Direction depends on that external instrument.

The instrument references the Territory of Heard Island and McDonald Islands and ties the meaning of that term to the Heard Island and McDonald Islands Act 1953 (s 4(1)). It also connects the term "baseline" to the Seas and Submerged Lands Act 1973 by reference to possible Proclamations under section 7 of that Act; the text explicitly notes that, as of commencement, no such Proclamation is in force (s 4(1), note). The Heard Island Plateau description in Schedule 2 uses the Australian‑France Maritime Delimitation Agreement Southern Boundary as a starting point and carries a note that, as of commencement, that Agreement is available in the Australian Treaty Series (s 4(1) note; Schedule 2 item 1). Thus the Direction is interdependent with international delimitation, domestic territory statutes and the separate Management Plan.

Because the Direction interacts with quota accounting , incidental take outside the Plateau is to be decremented from a holder’s quota holding , it will interact operationally with whatever quota management, reporting and audit provisions exist under the Act and the Management Plan. The Direction does not itself set quota mechanisms, but it imposes spatial constraints that directly affect how quotas are consumed and accounted.

The repeal items in Schedule 1 remove two earlier closure Directions (Heard Island and McDonald Islands Fishery (Closures) Direction No. 1 2014 and No. 2 2014), thereby altering the corpus of subordinate instruments that applied to the Fishery; compliance obligations and historic regulatory practice must therefore be reinterpreted in light of this instrument (Schedule 1). The Direction’s commencement by registration (s 2) means it supplements or replaces prior subordinate instruments from that date.

In sum, this Direction is a spatially-focused subordinate instrument that depends on and must be read with the Fisheries Management Act 1991, the Heard Island and McDonald Islands Management Plan, the Heard Island and McDonald Islands Act 1953, the Seas and Submerged Lands Act 1973 (for "baseline" proclamations) and relevant international boundary instruments referred to in Schedule 2. The Direction itself contains minimal procedural detail, so practical effect and enforcement are mediated through those other documents.

This instrument contains a single, explicit amendment action: Schedule 1 effects the repeal of two earlier closure Directions. Schedule 1 identifies "Heard Island and McDonald Islands Fishery (Closures) Direction No. 1 2014" and "Heard Island and McDonald Islands Fishery (Closures) Direction No. 2 2014" and states "The whole of the instrument" for each item followed by the instruction "Repeal the instrument" (Schedule 1). That is the only amendment or repeal contained in the text.

The instrument’s commencement provision states it commences the day after it is registered on the Federal Register of Legislation (s 2). There is no temporal grandfathering clause, transitional provision, or staged commencement in the text; the repeal of the two 2014 Directions is effective as set out by Schedule 1 on commencement. The instrument has no other schedules amending other instruments.

The Direction does not record any prior versions of itself, nor does it contain a section listing prior amendments to itself. It does not provide any savings clauses, transitional arrangements for quota, or explicit directions on how to treat acts done under the repealed instruments prior to their repeal. The only operational note related to quota is the incidental take decrement from the holder’s quota holding for incidental mackerel icefish taken outside Schedule 2 areas (note to s 6(1)).

No further amendment history is contained in the instrument; it neither amends any other named instruments beyond the repeals in Schedule 1, nor purports to be an amendment instrument for other subordinate legislation. The Direction’s legal effect therefore is to create the current closure regime described in s 6 and Schedule 2 and to remove those two 2014 closure Directions from the subordinate legislation register as of commencement.

The instrument itself contains no record of litigation, judicial determination, or references to disputes. It does not mention any prior cases, appeals, judicial reviews, or tribunal decisions, and it does not provide a history of legal challenge to any of the provisions it repeals or enacts. The schedule of repeals (Schedule 1) simply identifies the two earlier closure Directions being repealed; it does not record any litigation concerning those instruments.

Because the Direction is made under subsection 41A(2) of the Fisheries Management Act 1991 (s 3), any litigation history relevant to enforcement, interpretation or validity would appear in case law or records concerning the Act or the Management Plan rather than in the text of this Direction. The instrument does not include or summarise such material.

Users seeking litigation history will need to consult external legal databases, court records or administrative tribunal records for any proceedings that may have concerned the Fisheries Management Act 1991, the Management Plan, the repealed 2014 Directions, or actions taken under this Direction. The Direction itself offers no indication of past judicial review, challenge or authoritative interpretation, and it contains no internal mechanisms or summaries of dispute resolution related to its provisions.

Several practical and legal issues arise from reading the instrument closely. First, the Direction ties key spatial concepts to external sources. "Fishery" is the area defined in section 3 of the Management Plan, not defined in the Direction, so operators must consult the Management Plan to know the outer limits of the Fishery (s 4(1)). The Heard Island Plateau is described in Schedule 2 with geodesic segments and meridians/parallels; readers must map those descriptors against WGS72 coordinates (s 4(2); Schedule 2). Failure to use the WGS72 datum can cause apparent non-compliance when vessel positioning uses a different geodetic datum.

Second, the Direction’s prohibition on fishing "targeting mackerel icefish outside the part of the Fishery that is the Heard Island Plateau" relies on the concept of "targeting" versus "incidental take" (s 6(1); s 4(1) definition of "incidental take"). The instrument does not define "targeting" in detail. It treats incidental take outside Schedule 2 by immediate quota decrement (note to s 6(1)), but it does not say how authorities will distinguish targeted activity from incidental capture in practice. That distinction could be material in enforcement and quota accounting.

Third, the band prohibition covers fishing "in the part of the Fishery that is between 12 and 13 nautical miles of the baseline" (s 6(2)). The instrumental definition of "baseline" depends on a Proclamation under the Seas and Submerged Lands Act 1973 or on international law baseline rules, and the Direction notes that, as of commencement, no such Proclamation is in force (s 4(1), note). This creates potential ambiguity when identifying the precise 12-13 nm band absent a domestic proclamation. Operators must therefore confirm which baseline is to be used for measuring those nautical miles, and that may require consulting the Seas and Submerged Lands Act context and any relevant international baseline delineation.

Fourth, the instrument repeals two 2014 Directions (Schedule 1). Operators who relied on transitional or residual provisions in those earlier Directions should not assume those provisions remain. The Direction contains no savings clauses, transitional arrangements or express guidance on treating actions taken under the repealed instruments.

Fifth, the instrument is silent on enforcement mechanisms and penalties. It creates prohibitions and an administrative quota consequence for incidental take, but it does not specify investigative powers, appeal rights, or the administrative process by which quota decrements will be imposed or challenged (s 6, note). That leaves uncertainty about procedural protections, timeframes and evidentiary burdens.

Sixth, the instrument does not identify the decision-maker or the person who made the instrument beyond linking it to the Act (s 3). The absence of an explicit authorising official’s name in the text means parties must look to the registration and the public record for the instrument to identify the responsible authority and to check whether any accompanying explanatory materials exist.

Seventh, the instrument remains in force "during the period that this instrument is in force" but does not set a sunset date or periodic review requirement (s 6). The Direction could therefore remain indefinitely until amended or repealed, unless the enabling Act imposes other temporal limits. Holders must monitor for registration of replacement instruments or amendments.

Eighth, the schedule describing the Plateau relies on the Australian‑France Maritime Delimitation Agreement Southern Boundary as a starting point and notes availability in the Australian Treaty Series (s 4(1) note; Schedule 2). Any change in international delimitations, or differences in interpreting that boundary for domestic mapping purposes, could affect the Plateau’s practical mapping.

Finally, the quota consequence for incidental take is unilateral in the Direction; the instrument does not articulate how reporting of incidental catch is to be made, nor the standard for decrementing quota holdings. Operators should not assume that quota decrement will be automatic without administrative process, but they should also not assume that incidental catch will be exempt from quota accounting.

Compliance requires a mix of legal verification, navigational accuracy and operational controls. Steps to comply, grounded in the instrument, include:

1. Confirm concession status. Verify whether you are a "holder" as defined by the Management Plan. The Direction’s prohibitions apply to holders and persons acting on their behalf; if you operate under a different legal basis you must still confirm the applicability of the Direction to your operations (s 4(1) definition of "holder"; s 6).

2. Consult the Management Plan. Determine the Fishery boundary as defined in section 3 of the Management Plan, because the Direction’s geographic limitations operate within that Fishery definition (s 4(1)). Ensure concession conditions and quota arrangements in the Management Plan are reconciled with the Direction.

3. Map the Heard Island Plateau in WGS72. Use the Schedule 2 sequence to define the Heard Island Plateau with coordinates and geodetic segments referenced to WGS72 (s 4(2); Schedule 2 items 1-7). Verify navigation and electronic charting systems use the WGS72 datum to avoid positional errors.

4. Program vessel monitoring and navigation. Configure vessel positioning systems, safety management systems and electronic charts so that vessels do not target mackerel icefish outside the plateau and do not fish in the 12-13 nm band referenced to the baseline (s 6(1)-(2)). Implement geofencing or reporting triggers for vessel position close to the Plateau boundary and the 12-13 nm band.

5. Clarify baseline measurement. Because "baseline" is tied to proclamations under the Seas and Submerged Lands Act 1973 or international law and no Proclamation was in force at commencement according to the instrument’s note, confirm which baseline the authority will use for measuring 12 and 13 nautical miles (s 4(1), note; s 6(2)). Seek written clarification from the administering agency if necessary.

6. Train masters and crews on "targeting" and incidental catch handling. The instrument distinguishes targeting from incidental take and ties incidental take outside the Plateau to quota decrement (s 6(1), note). Establish procedures for gear deployment, fishing effort records, catch handling and incident reporting to support the distinction between targeted operations and accidental capture.

7. Improve catch reporting and quota accounting. Prepare for the possibility of quota decrements for incidental icefish caught outside the Plateau by tightening logbook, observer and electronic reporting so that incidental take can be accurately recorded and demonstrated to authorities (note to s 6(1)). Reconcile reporting with the Management Plan’s quota systems.

8. Review prior compliance arrangements. Because the Direction repeals two 2014 closure Directions (Schedule 1), review former compliance practices to ensure they are updated to the current Direction and to validate that repealed instrument provisions are not being relied upon.

9. Liaise with regulators. Identify the authority responsible for administration and enforcement by checking the registered instrument record and associated publication. Obtain any guidance material or compliance advice the administering authority issues, because the Direction itself is minimal on enforcement details (s 3; s 6).

10. Maintain records and evidence. Keep accurate, time-stamped vessel position data (referenced to WGS72), catch records, communications and maintenance of gear to demonstrate compliance efforts and to evidence whether capture was targeted or incidental should any enforcement or quota-decrement action arise.

11. Monitor instrument status. The Direction remains in force until changed or repealed. Implement a system to monitor the Federal Register of Legislation or the responsible agency for amendments, repeals or replacement instruments so that operational rules remain current (s 2).

12. Seek legal clarification where needed. If there are ambiguities about baseline measurement, the precise Plateau mapping, the operational definition of targeting versus incidental take, or the administrative processes for quota decrements, seek formal clarification from the administering authority or legal advice based on the Management Plan and the enabling Act.

These steps follow directly from the instrument’s content: the spatial prohibitions (s 6(1)-(2)), the need to use WGS72 for coordinates (s 4(2)), the linking of incidental take to quota decrements (note to s 6(1)), the dependence on the Management Plan for the Fishery definition (s 4(1)), and the repeal of earlier Directions (Schedule 1).