EXPLANATORY STATEMENT
Issued by the authority of the Australian Fisheries Management Authority
Fisheries Management Act 1991
Bass Strait Central Zone Scallop Fishery Management Plan 2002
Determination No. BSCZSFD 01
The proposed Determination would be a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Subsection 17(6)(aa) of the Fisheries Management Act 1991 (the FMA) provides that a plan of management made under the FMA may provide for the Australian Fisheries Management Authority (AFMA) to determine the fishing capacity permitted for the fishery or a part of the fishery in respect of a particular period or periods.
Subsection 27(1) of the Bass Strait Central Zone Scallop Fishery Management Plan 2002 (the Plan) provides that, prior to the start of the fishing season, AFMA must determine the total allowable catch (TAC) for each species of scallop for the fishing year.
The Fisheries Management (Bass Strait Central Zone Scallop Fishery) Regulations 2002 (the Regulations) complement the Plan and prescribe matters in support of the FMA relevant to the fishery.
Subsection 27(2) of the Plan provides that the TAC must not be greater than an amount specified in the Regulations for the purposes of this subsection. Subregulation 10(1) states that the TAC at the start of each fishing season must not be greater than 1,000 tonnes for commercial scallops. The level of TAC set by the proposed Determination meets the requirements of this subregulation.
The fishery
The principal target species in the Bass Strait Central Zone Scallop Fishery (BSCZSF) is the commercial scallop (Pecten fumatus). The principal harvest method is by a scallop harvester (or dredge). The main markets for scallops have traditionally been France, Hong Kong, USA and the domestic market.
As a result of overfishing and a severe decline in catch in 1998 the fishery was closed to fishing in 1999 and 2000. There has been an area closure of the known scallop beds (or part of these beds) in the eastern part of the fishery since 2001. Scientific surveys undertaken in this area since 2000 have provided evidence of stock rebuilding, but there has not been a full recovery. Partly because of these closures in the fishery, there have been some marketing challenges faced by scallop operators. These relate mainly to continuity of supply of fresh product to both domestic and export markets and have been exacerbated by competition with cheaper imported product.
Regulation Impact Statement
The Office of Regulation Review (ORR) advised AFMA that a Regulation Impact Statement was not required for the proposed Determination (ORR ID 7026).
Consultation
AFMA’s management philosophy (as foreshadowed in its governing legislation) involves a partnership approach to the management of marine resources under its jurisdiction. Cooperation with relevant stakeholders, such as the fishing industry, government agencies, the community and others with an interest in the sustainable management of the Commonwealth’s fisheries resources, is a vital part of this approach. This approach provides opportunities for stakeholders to have input into the management process through, in the case of the BSCZSF, the Bass Strait Central Zone Scallop Fishery Management Advisory Committee (ScallopMAC).
Subsection 23(3) of the Plan provides that, before deciding the TAC for a fishing year, AFMA must consult the Committee and consider their views. AFMA consulted with ScallopMAC at their November 2004 meeting, at which ScallopMAC made a recommendation that the initial TAC for the 2005 fishing season be set at 1,000 tonnes. This recommendation was put to the AFMA Board at the February meeting.
Details of the Determination are set out below:
Clause 1 | Provides for the Determination to be cited as Determination No. BSCZSFD 01. |
Clause 2 | Provides for the commencement and period of application of the Determination. |
Clause 3 | Provides for the interpretation of the Determination. In particular, the clause states that terms defined in the Plan and FMA have the same meaning in the Determination. Terms used in the Determination first take the meaning given in the Plan, then (in the absence of terms in the Plan) that given in the FMA. |
Clause 4 | Provides the total allowable catch of commercial scallops that may be taken. |
Overview
The Fisheries Management Act 1991 (FMA), enacted by the Parliament of Australia, was established to provide for the sustainable management of fisheries within Australian waters. This Act introduced a framework for fisheries management, including provisions for setting total allowable catches (TACs) and managing fishing capacity. The FMA was introduced to address the need for comprehensive regulation and management of fisheries to ensure their sustainability and to manage the impacts of fishing on marine ecosystems and fish stocks. The Bass Strait Central Zone Scallop Fishery Management Plan 2002, as an integral part of the FMA, was developed to provide specific management measures for the scallop fishery in the Bass Strait Central Zone, including setting the TAC for scallops to prevent overfishing and support stock recovery. The policy objective of these measures is to ensure the sustainable harvest of scallops while supporting the economic viability of the fishery and maintaining the health of marine ecosystems.
Scope and Application
The Fisheries Management Act 1991 governs the management of fisheries within Australia's Commonwealth waters, with the Australian Fisheries Management Authority (AFMA) being the key entity responsible for the implementation of these provisions. The Bass Strait Central Zone Scallop Fishery Management Plan 2002 (the Plan) specifically addresses the management of the scallop fishery in the Bass Strait Central Zone, and the accompanying regulations further detail the operational aspects of the fishery. Determination No. BSCZSFD 01 pertains to the setting of the Total Allowable Catch (TAC) for commercial scallops within this fishery for a particular fishing season, in this instance, the 2005 fishing season. This Determination applies to all entities engaged in scallop fishing within the designated Bass Strait Central Zone, including both domestic and foreign fishing vessels and operators. The geographic scope of the Act is limited to Commonwealth waters, specifically the Bass Strait Central Zone, and does not extend to state or territory waters. The Act operates within the confines of the specified TAC, which must not exceed 1,000 tonnes as prescribed by the Bass Strait Central Zone Scallop Fishery Management Plan 2002 and the Fisheries Management (Bass Strait Central Zone Scallop Fishery) Regulations 2002. The application of this Act can be further refined or detailed through subordinate instruments, which may introduce additional rules or clarifications to support the overarching provisions of the Act and its regulations.
Key Provisions
The main operative sections of the Determination No. BSCZSFD 01, as outlined in the explanatory statement, are primarily concerned with setting the total allowable catch (TAC) for commercial scallops in the Bass Strait Central Zone Scallop Fishery (BSCZSF). Clause 2 specifies the commencement and period of application of the Determination, ensuring that it is effective from a particular date and remains in force for a defined duration. Clause 3 focuses on the interpretation of the Determination, clarifying that terms defined in the Bass Strait Central Zone Scallop Fishery Management Plan 2002 (Plan) and the Fisheries Management Act 1991 (FMA) will have the same meaning in this Determination. This clause also establishes the hierarchy for interpreting terms used within the Determination. Clause 4 explicitly sets the total allowable catch of commercial scallops that may be taken for the specified fishing season.
The Act imposes several obligations and requirements on the Australian Fisheries Management Authority (AFMA) and other entities involved in the fishery. Subsection 27(1) of the Plan mandates that AFMA must determine the TAC for each species of scallop before the start of the fishing season. Additionally, Subsection 27(2) stipulates that the TAC must not exceed the amount specified in the Fisheries Management (Bass Strait Central Zone Scallop Fishery) Regulations 2002. Furthermore, Subsection 23(3) of the Plan requires AFMA to consult with the Bass Strait Central Zone Scallop Fishery Management Advisory Committee (ScallopMAC) and consider their views before deciding the TAC for a fishing year. This collaborative approach ensures that stakeholders have an opportunity to provide input into the management process.
The proposed Determination includes provisions for offences, penalties, or consequences for breaches of the regulations. Although specific maximum penalties are not detailed in the explanatory statement, it is clear that any breach of the regulations governing the TAC or other aspects of the fishery could result in legal consequences. These consequences could include fines, revocation of fishing licenses, or other enforcement actions taken by AFMA to ensure compliance with the provisions set out in the Determination and the related management plan and regulations. The legal framework established by the Fisheries Management Act 1991 and the associated regulations provides a basis for addressing violations and maintaining the sustainability of the fishery.