Fisheries Management (Northern Prawn Fishery Gear Requirements) Direction 2021

The Fisheries Management (Northern Prawn Fishery Gear Requirements) Direction 2021 is a legislative instrument made under section 41A of the Fisheries Management Act 1991. It replaces the 2020 direction of the same name, which is repealed in full by Schedule 4. The direction sets mandatory gear specifications for all boats operating in the Northern Prawn Fishery (NPF). It does not create new fishing rights or alter quota allocations; it only prescribes what fishing gear may be used and how it must be configured.

Mechanically, the direction operates as a prohibition with conditional exemptions. Section 7(1) prohibits any fishing in the NPF area until the direction ceases or is revoked. However, subsections 7(2) to 7(4) provide an exemption for concession holders who meet two cumulative conditions. First, the holder must install a Bycatch Reduction Device (BRD) in every net rigged for fishing. During the period 1 August to 30 November each year, only BRDs listed in Schedule 3 may be used. Outside that period, BRDs from either Schedule 1 or Schedule 3 are permitted. Second, when fishing in water less than 200 metres deep, the holder must also install either a Turtle Excluder Device (TED) or a Modified Turtle Excluder Device (Schedule 2) in all nets rigged for fishing. A codend cover, if used, must be attached no more than 60 meshes from the codend drawstrings.

The direction provides detailed, prescriptive specifications for each approved device. BRDs include the Square Mesh Panel, Yarrow Fisheye, Popeye Fishbox (in both Schedule 1 and Schedule 3 versions with different mesh positions), Kon’s Covered Fisheyes, FishEX 70, and Tom’s Fisheye. The TED definition includes rigid grid dimensions, bar spacing, escape opening dimensions (with multiple options for rectangular and triangular designs), float requirements, and a prohibition on weights or meshing that could inhibit the escape flap. The Modified TED is a variation with a top escape opening and a maximum bar spacing of 60 mm.

The direction applies to “a holder of a fishing concession in the Northern Prawn Fishery and to a person acting on behalf of the holder”. It defines “net rigged for fishing” broadly to include nets in the water or connected to trawl doors, towing cables, or on board the boat. This means a vessel can be in breach even if it is not actively trawling, so long as the nets are rigged. All net measurements are taken from the centre of opposing knots when the mesh is pulled taut, a technical standard that may cause measurement disputes in enforcement.

The direction does not state its own policy objective. From context it is evidently intended to reduce bycatch of non-target fish species and to protect sea turtles from capture in prawn trawls. However, the instrument is silent on economic impacts, compliance costs, or any cost-benefit analysis. It imposes significant burdens on fishers: they must purchase, install, and maintain approved devices that meet exact specifications; retrain crew; and risk being unable to fish at all if any device is missing or incorrectly fitted. The prescriptive, schedule-based approach limits flexibility for operators to develop or adopt alternative bycatch reduction technologies that may be cheaper or more effective for their particular vessel configuration. There are no provisions for exemption based on vessel size, target species, or historical catch composition. The direction applies uniformly across the entire NPF fleet, regardless of whether turtle interaction risk is low in certain areas or seasons.

The direction introduces and defines several key concepts that are central to understanding its operation.

Bycatch Reduction Device (BRD) means a device that allows fish and other animals to escape immediately after being taken in the net. The definition is inclusive: it covers each of the devices described in Schedules 1 and 3. This is a functional definition: the device must actually permit escape. However, the direction does not allow a fisher to use any device that achieves that function; only the named devices with the specified characteristics are permitted. This makes the definition effectively a closed list of approved hardware designs.

Turtle Excluder Device (TED) means a device fitted to a net that allows turtles to escape immediately after being taken, and which has a rigid or semi-rigid inclined barrier grid, an escape opening, maximum bar spacing of 120 mm, and mandatory floats on the top half of the grid if there is a bottom escape opening. The direction provides two alternative escape opening designs (rectangular and triangular) each with two variants (double flap and single flap). The grid must be at least 81 cm by 81 cm and set at an angle of 30 to 55 degrees to the horizontal plane. Any weights, meshing, or materials that could inhibit the opening of the escape flap are prohibited.

Modified Turtle Excluder Device is a subclass of TED where the escape opening is in the top of the codend (rather than the bottom). It has tighter bar spacing: no more than 60 mm. It may include an escape flap over the opening and a guiding funnel or flap inside the codend, but no part of those additions may be closer than 150 mm to any part of the grid when the codend is hung vertically. This device appears intended to address concerns about turtle species that may be less able to swim downwards to a bottom opening, or to further reduce bycatch of other large animals.

Net is defined as a net used for trawling except a try-net. This is important because the requirements extend to every trawl net on board, not just the main net. A try-net is a small test net; it is excluded from the BRD and TED requirements entirely.

Rigged for fishing is defined separately for the BRD requirement in subsection 7(5). A net is rigged for fishing if part or all of it is in the water, or if it is shackled, tied or otherwise connected to any trawl door, trawl board, tow rope or cable, either on board the boat or attached in any manner to the boat. This captures a wide range of scenarios: a net stowed on deck but still shackled to a cable would be considered rigged for fishing under this definition. This means that compliance must be maintained at all times while the vessel is at sea with the gear ready for use, not only during active towing.

The direction affects a defined class of persons: holders of a fishing concession in the Northern Prawn Fishery, and anyone acting on behalf of such a holder. This includes the individual or company that holds the statutory fishing rights, their employees, contractors, and agents who operate or crew the vessel. In practice, this covers the entire NPF fleet, which consists of approximately 52 boats as of 2021, making it one of the largest Commonwealth fisheries. The direction indirectly affects fishing equipment manufacturers and suppliers who produce and sell the approved BRDs and TEDs. It also affects net makers and riggers who install these devices, as they must ensure their products meet the exact specifications.

The economic impact is concentrated on the NPF operators. They bear the capital cost of purchasing the devices (which may range from several hundred to several thousand dollars each, depending on design and materials), the labour cost of installing them correctly, and the ongoing cost of maintenance and replacement. There is also a potential loss of prawn catch: any escape opening inevitably lets some target species out as well as non-target species. Studies of similar devices elsewhere have shown catch reductions of 5-20% for prawns, though results vary by fishery and device design. The direction does not include any compensation mechanism, nor does it require AFMA to assess or offset these losses.

Smaller operators with limited capital may be disproportionately affected. The direction requires that every net rigged for fishing must have a device. A vessel that normally carries four nets will need four BRDs and four TEDs (or Modified TEDs) at all times. If the vessel switches nets during a trip, each net must already be equipped. This increases inventory and reduces flexibility.

The direction also affects non-holder actors such as skippers, deckhands, and fishing masters. They are liable for compliance because they act “on behalf of” the holder. If a crew member fails to ensure that a net has the correct device, or if a device is covered by netting during fishing, the holder may be vicariously liable, and the crew member may also face individual liability under the Fisheries Management Act. The direction does not define the scope of “acting on behalf”, but it likely extends to anyone who has control over the fishing operation.

Consumers and the broader seafood market are affected indirectly. Reduced prawn catches from the NPF (due to escape device drag and lost catch) may lead to higher prices or increased imports. However, the direction may also improve the sustainability perception of Australian prawns, potentially creating a price premium in certain markets. The direction does not analyse these trade-offs.

The central duty is the obligation to install the correct BRD and TED in every net that is rigged for fishing. This duty is continuous: the devices must be in place at all times when the net is rigged, even when the vessel is transiting or not actively fishing. The duty is not limited to the period when the net is in the water; it applies whenever the net is connected to trawl doors, trawl boards, tow ropes, or cables, whether on board or attached to the boat. This means that during gear maintenance or deployment preparation, the devices must be present.

A secondary duty is to ensure that no netting or other material covers any escape openings during fishing operations. This applies to all BRD and TED openings. The direction explicitly states that no pieces of netting or other material shall cover any escape openings, nor shall any opening be closed by any other means, during fishing operations. This includes the escape gap of the BRD, which must be clear of obstructions such as mesh ties for devices like FishEX 70 and Tom’s Fisheye.

If a codend cover is used, the holder must ensure it is attached no further than 60 meshes from the codend drawstrings. This is a specific positioning requirement that may conflict with some standard rigging practices.

The direction also imposes a duty regarding the floats on TEDs. Floats must be attached to the top one-half of all TEDs with bottom escape openings. The floats may be attached outside or inside the net, but not to a flap. The direction specifies three acceptable float configurations: three small hard plastic floats (150-200 mm diameter), two medium floats (200-250 mm), or one large float (at least 250 mm). The holder must choose a configuration that keeps the escape opening unobstructed and functional. Weights, meshing, or other materials that may inhibit the opening of the escape flap are prohibited.

The key right created by the direction is the right to fish in the Northern Prawn Fishery area, subject to the conditions. Section 7(2) provides an exemption from the broad prohibition in subsection 7(1) if both subsections 7(3) and (4) are satisfied. This is not a positive right; it is a conditional exemption from a prohibition. There is no right to use a device that is not listed in the schedules, even if it is equally or more effective. There is no right to seek a variance based on vessel-specific circumstances. The right to fish is also contingent on the direction not being revoked or ceasing to have effect.

The direction does not create any reporting or record-keeping duties, though such duties may exist under the management plan or the Act. It does not require holders to notify AFMA of the type of devices installed, nor to keep logs of compliance checks. However, in practice, a holder would need to maintain records to prove compliance in the event of an inspection or prosecution.

The direction does not itself prescribe any penalties. However, it is made under section 41A of the Fisheries Management Act 1991. That Act creates offences for contravening a direction made under that section. Typically, such offences carry significant fines. Section 41A gives the Australian Fisheries Management Authority the power to issue directions to boat operators in relation to fishing operations. Non-compliance with a direction is a contravention of the Act. The direction functions as a set of conditions; if a holder fishes without meeting the conditions, they are in breach of the prohibition and thus liable under the Act.

Enforcement is carried out by AFMA officers, who may board vessels, inspect gear, and measure devices. The direction’s technical specifications (mesh sizes, opening dimensions, bar spacing) are verifiable on inspection. The definition of “net rigged for fishing” means that an inspection can occur in port or at sea. If a net is found to be rigged without the required devices, the holder may be subject to prosecution even if the vessel had not yet begun fishing. This expands enforcement opportunities.

The direction does not provide any defence of due diligence or reasonable mistake. It is a strict liability instrument: the holder is liable if the gear does not comply, regardless of whether they knew of the non-compliance. Given the complexity of the specifications (multiple flap dimensions, specific cone sizes, precise mesh positions), there is a real risk of inadvertent non-compliance. For example, a TED that has an escape opening cut slightly below the required minimum length would render the net non-compliant, and fishing with it would be illegal.

There is no provision for warnings or graduated enforcement. The prohibition is absolute: if the conditions are not met, fishing is prohibited. This means that a minor deviation from specifications could theoretically ground an entire vessel until the issue is rectified. The cost of lost fishing days could be substantial, especially during the peak season. The direction does not address what happens if a device becomes damaged during a tow; presumably, the operator must stop fishing and repair or replace the device before resuming.

The direction also does not specify any transitional enforcement approach for the repeal of the 2020 direction. Since the 2021 direction commences 14 days after registration, any fishing after that date must use the new specifications. The 2020 direction may have had slightly different specifications (not provided), so holders must ensure their gear conforms to the 2021 direction within that 14-day window. AFMA could take enforcement action against any holder still using the 2020 specifications after commencement.

The direction is made under the Fisheries Management Act 1991 and is part of the regulatory framework for Commonwealth fisheries. It operates alongside the Northern Prawn Fishery Management Plan 1995, which sets out the structural management rules for the fishery including statutory fishing rights, quota allocations, and seasonal closures. The direction supplements these rules by adding gear requirements. It does not modify or override any provisions of the management plan. A holder must comply with both the management plan and the direction; the absence of a gear requirement in the management plan does not exempt the holder from the direction.

The direction may also interact with the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Turtle excluder devices are primarily intended to reduce interactions with threatened and migratory marine turtles, which are listed under the EPBC Act. The direction provides a shield for fishers: if they use an approved TED, they are less likely to be prosecuted under the EPBC Act for incidental capture of turtles. However, the EPBC Act obligations are separate; a fisher using an approved TED may still be liable if they cause unacceptable impacts on protected species in a particular location or time. The direction does not grant immunity from the EPBC Act.

There is no reference to state or territory laws. The Northern Prawn Fishery area is defined in the management plan and is primarily within Commonwealth waters. However, some NPF vessels may transit or fish in state waters (e.g., near the coast or in gulfs). State fisheries legislation may impose additional or conflicting gear requirements. The direction does not address such situations. A prudent operator would need to comply with both Commonwealth and state requirements when operating in overlapping jurisdictions.

The direction does not interact with occupational health and safety laws, but the installation of heavy grids, cones, and rigid frames creates manual handling and snagging risks. The direction does not mandate any safety features or training.

The repeal of the 2020 direction by Schedule 4 means that any rights or obligations under that direction are extinguished from the commencement of the 2021 direction. However, any contraventions of the 2020 direction that occurred before its repeal remain actionable under the Act. The direction does not include a savings provision to preserve those rights, but general principles of statutory interpretation may apply.

The direction does not reference any international agreements, but it is consistent with Australia’s obligations under the Convention on Biological Diversity and the Convention on Migratory Species, which encourage measures to reduce bycatch of threatened species. This alignment may be useful for trade purposes: importing countries may require proof that prawns were caught using turtle-friendly gear.

The instrument does not provide a complete amendment history. It states only that it repeals the Fisheries Management (Northern Prawn Fishery Gear Requirements) Direction 2020 in its entirety (Schedule 4). This is the sole amendment referenced. There is no list of earlier amendments to the 2020 direction or to the 2021 direction itself. The 2021 direction appears to be a fresh instrument rather than an amendment to a pre-existing one. This is common practice for directions that replace an earlier version entirely.

The direction was made on 15 March 2021 by Wez Norris, the Chief Executive Officer of AFMA, acting as a delegate of the Commission under delegation no. 2 of 2016. It commenced on the 14th day after registration. The exact registration date is not stated, but the signing date is 15 March 2021, so commencement would likely have been in late March or early April 2021.

The direction does not include any transitional provisions or explanatory notes about what changed from the 2020 direction. Without access to the 2020 direction, it is impossible to identify the specific differences. However, the fact that a new direction was made rather than simply amending the old one suggests that the changes were substantial enough to warrant a full replacement. This imposes a duty on holders to carefully compare the 2021 schedules with whatever they were using previously. Any gear that complied with the 2020 direction may no longer comply, particularly if mesh positions or dimensions were altered.

The direction also does not contain a sunset clause. It will continue in force until it is repealed, amended, or expires by operation of law. Since it is a legislative instrument, it is subject to the Legislation Act 2003, which requires periodic review but does not set a fixed expiry. The direction may be amended in future by a new direction made under the same authority.

Given that the 2020 direction was repealed after only one year (it was made in 2020 and replaced in 2021), there is a risk that the 2021 direction may also be short-lived. Frequent changes to gear specifications impose high compliance costs on operators, who must repeatedly purchase and install new devices or modify existing ones.

The instrument does not mention any litigation. It does not list any court cases, tribunal decisions, or legal challenges. This is typical for a regulatory direction. However, the absence of cited litigation does not mean that no legal disputes have occurred. The source is the direction itself, which is not a legal database.

There are several potential avenues for litigation. A holder could challenge the validity of the direction on the ground that it exceeds the power granted by section 41A of the Fisheries Management Act 1991. For example, if the direction imposes requirements that are not reasonably related to the management of the fishery or are so burdensome as to effectively deny access, it might be held invalid as an unreasonable exercise of delegated power. Alternatively, a holder could challenge the application of the direction to their specific situation, such as arguing that a particular device does not meet the specifications but is still effective, or that the measurement method used by AFMA inspectors is inconsistent with the direction’s definition.

Prosecutions for non-compliance could result in court decisions that interpret the direction’s definitions. For example, the phrase “net rigged for fishing” might be construed narrowly in some circumstances, such as when a net is stowed in a net bin and not connected to cables. The outcome of such cases would affect enforcement practices.

Because the direction is relatively new (since 2021), there may not yet be a significant body of case law. However, the 2020 predecessor may have generated litigation that is not referenced. Users should consult AFMA’s enforcement records and common law databases for any unreported decisions.

The direction does not contain any review mechanism, such as a right to apply to the Administrative Appeals Tribunal for review of a decision to refuse an exemption. There is no provision for individual exemptions. This limits avenues for legal challenge to judicial review under the Administrative Decisions (Judicial Review) Act 1977 or the High Court’s original jurisdiction.

The direction contains several traps for the unwary.

Definition of “net rigged for fishing” is broader than expected. A net is rigged for fishing if it is “shackled, tied or otherwise connected to any trawl door or trawl board, or to any tow rope or cable, either on board the boat or attached in any manner to the boat”. This means that a net stored on deck but still attached to a cable is considered rigged. A vessel that has all nets rigged while steaming to the fishing grounds must have BRDs and TEDs installed in every net, even though no fishing is occurring. Failure to do so could result in prosecution for fishing without the required devices, even if the vessel never actually towed the nets.

Seasonal BRD requirement is mandatory, not optional. During 1 August to 30 November, Schedule 1 devices are not permitted. Only Schedule 3 devices may be used. This means that a holder who uses a Square Mesh Panel (Schedule 1) during August is automatically non-compliant, even if the Square Mesh Panel is otherwise an approved device. The direction does not explain why this seasonal restriction exists. Operators must ensure that their BRD inventory matches the season. If a vessel operates both before and after 1 August, the crew must reconfigure every net.

Fixed mesh positions for Schedule 3 BRDs. Each device in Schedule 3 specifies a precise mesh count from the codend drawstrings. For example, Kon’s Covered Fisheyes require one device at 78 meshes and one at 55 meshes. Popeye Fishbox (Schedule 3) requires the aft edge at 70 meshes. This is not a maximum; it is an exact position. If the device is installed at 71 meshes or 69 meshes, it does not comply. Given that nets stretch and shrink over time, maintaining an exact mesh count is difficult. The direction provides no tolerance. Similarly, the FishEX 70 must have the aft edge at exactly 65 meshes.

TED escape opening dimensions have multiple alternatives, but each must be strictly followed. The TED definition includes two main opening types (rectangular and triangular), each with single-flap and double-flap variants. Each variant has its own minimum dimensions: for double flap rectangular, the length of the leading edge must be no less than 142 cm; for single flap rectangular, no less than 181 cm; for triangular options, different numbers apply. The flaps must be composed of two mesh panels of specific widths, and there are restrictions on how much they may overlap (no more than 38 cm along the leading edge for the double flap). A common mistake might be to use a single panel instead of two, which would be non-compliant.

Compliance involves a systematic approach to gear configuration, maintenance, and verification.

First, review the direction entirely. Understand that there are two separate but cumulative requirements: BRD (for both bycatch and season) and TED (for waters less than 200 m). Each net rigged for fishing must have both a BRD and a TED (or Modified TED) at all times when those conditions apply. Note that the TED requirement is depth-dependent, while the BRD requirement is year-round but with seasonal device restrictions.

Second, identify the fishing season. For any fishing between 1 August and 30 November, only BRDs from Schedule 3 may be used. For all other periods, either Schedule 1 or Schedule 3 devices are acceptable. The easiest approach is to use Schedule 3 devices year-round, as they are permitted in both periods. However, Schedule 3 devices have fixed mesh positions (e.g., 78, 55, 65, 60, 70 meshes from codend drawstrings), while Schedule 1 devices only require the aft edge to be no further than 120 meshes. If using Schedule 3, ensure that the device is installed at exactly the specified mesh count. Count meshes carefully from the codend drawstrings. Use a consistent measurement method: all net measurements are from the centre of opposing knots when the mesh is pulled taut. This may require using a mesh gauge or caliper to verify.

Third, choose between TED and Modified TED. The standard TED must have a rigid grid at least 81 cm x 81 cm, bar spacing no more than 120 mm, and an escape opening that meets one of the design options (double flap rectangular, single flap rectangular, double flap triangular, single flap triangular). The Modified TED has a top escape opening and bar spacing no more than 60 mm. It also may include an escape flap or guiding funnel, but those must be at least 150 mm from the grid. The choice may depend on the turtle species in the area and the vessel’s net configuration. The Modified TED’s tighter bar spacing may reduce bycatch of other animals but could also increase drag. Ensure that floats are attached to the top half of any TED with a bottom escape opening, using one of the three approved float configurations. Weights or other materials that could impede the flap are prohibited.

Fourth, for all BRDs, ensure that no netting or other material covers any escape openings during fishing. This means that chafing gear, codend covers (if used) must be positioned so they do not obstruct the BRD openings. The codend cover must be attached no further than 60 meshes from the codend drawstrings.

Fifth, implement a compliance checklist before every fishing trip. For each net on board, verify: (a) Is a BRD present and is it one of the approved types for the current season? (b) Is the BRD installed at the correct mesh position (exact for Schedule 3, within 120 meshes for Schedule 1)? (c) Are the BRD openings free of netting or other obstructions? (d) Is a TED or Modified TED present? (e) For the TED, does it meet all dimensional specifications (grid size, bar spacing, escape opening dimensions, flap construction, floats)? (f) If using a Modified TED, is the bar spacing ≤60 mm and are any guiding parts at least 150 mm from the grid? (g) Is there any codend cover? If so, is it attached no more than 60 meshes from drawstrings? (h) Are the escape openings of both BRD and TED clear of any obstruction?