Explanatory Statement
Eastern Tuna and Billfish Fishery Management Plan Amendment 2007 (No. 1)
The Australian Fisheries Management Authority (AFMA) has determined the Eastern Tuna and Billfish Fishery Management Plan Amendment 2007 (No.1) (Plan Amendment) to amend the Eastern Tuna and Billfish Fishery Management Plan 2005 (the ETBF Plan).
Subsection 17(1) of the Fisheries Management Act 1991 (the Act) provides that the AFMA must determine written plans of management for each fishery that it manages.
Subsection 20(1) of the Act provides that AFMA may at any time amend a plan of management.
The Eastern Tuna and Billfish Fishery
The Eastern Tuna and Billfish Fishery (ETBF) is managed under the ETBF Plan, which defines the fishery area in Schedule 1. The ETBF area is that part of the Australian Fishing Zone (AFZ) from the tip of Cape York Peninsula in Queensland to the South Australia/Victoria border, and adjacent high seas areas throughout the Pacific Ocean consistent with the area of competency of the Western and Central Pacific Fisheries Commission (WCPFC) east of 141° E at its southern part. The ETBF also includes waters adjacent to Norfolk Island, excluding a 75 nautical mile by 53 nautical mile restricted area surrounding the island.
Albacore tuna (Thunnus alalunga), bigeye tuna (Thunnus obesus), billfish (Families Istiophoridae and Xiphiidae), longtail tuna (Thunnus tonggol), northern bluefin tuna (Thunnus orientalis), rays bream (Family Bramidae), skipjack tuna (Katsuwonus pelamis) and yellowfin tuna (Thunnus albacares) are primary species in the ETBF as listed in Schedule 2 of the ETBF Plan. These primary species contribute to an individual’s fishing history for the purposes of being granted longline SFRs in the ETBF. The subsequent management of each of these species is subject to decisions of the AFMA Board. In the case of longtail tuna the Board has already announced a low commercial by-catch level of 35 tonnes for the ETBF that reflects the government’s policy that this is a recreational species.
The ETBF was previously managed under fishing permits granted to operators on an annual basis. Management measures were included on fishing permits by way of conditions. Until such time as the SFR allocation and grant process is complete the ETBF will continue to be managed under the transitional provisions in section 55 of the ETBF Plan.
The ETBF will be managed by input controls via pelagic longline and minor line (trolling, rod and reel and handline or pole) effort statutory fishing rights (SFRs). Input controls regulate fishing activity by restricting the amount or type of gear used or restricting the amount of fishing time. Pelagic longline and minor line SFRs will allow the holder to expend the level of fishing effort attached to those pelagic longline or minor line SFRs as referenced by the total allowable effort (TAE) for both types of effort SFRs. The TAE will be set before each fishing season for both types of effort SFRs.
Content of Plan Amendment
AFMA was unable to proceed with the SFR allocation process upon commencement of the ETBF Plan, as a number of technical errors were detected in the ETBF Plan between late 2005 and early 2006. These errors concerned three key areas, which are addressed in more detail below:
- the concept of a “sequence of permits” in the Plan;
- the treatment of Coral Sea zone permits; and
- the possibility of entitlement to SFRs under both the permit and high seas avenues for eligibility (explained below).
The Plan Amendment addresses these issues in line with AFMA’s original intent in the ETBF Plan regarding eligibility for SFRs.
Sequence of permits
The ETBF Plan incorrectly treats permits as ongoing, rather than as conferring entitlements for a given period. However under the provisions of the Act, each fishing permit is an individual entity and does not automatically have a link with any permit that has come before, or with any which come after it.
The Plan Amendment addresses this issue by providing a mechanism for the linking of permits for the purposes of determining eligibility and calculating catch history. This mechanism is referred to as a “sequence of permits” [either old long line, old minor line or old Coral Sea zone permits].
The inclusion of a sequence of permits and its application throughout the Plan Amendment also clarifies that a person who held a relevant permit on 30 November 2002 (the 30 November 2002 permit), but surrendered, cancelled or did not renew a subsequent permit or permits, (such that the 30 November 2002 permit is not part of a sequence of permits) will not be eligible for the grant of SFRs in relation to the 30 November 2002 permit (applies to longline and minor line SFRs).
The requirement that subsequent permits have not been surrendered, cancelled or not renewed is also relevant to the issue of boat and Coral Sea zone permits under the ETBF Plan.
This means, for example, that person who held an old longline or old minor line permit on 30 November 2002, but the permit is not part of a sequence of permits because a person surrendered a subsequent permit or permits as part of the Australian Government’s Securing our Fishing Future package (“buy-back”), will not be eligible for SFRs.
Permit package
The Plan Amendment also introduces the concept of a “permit package” to better recognise current and previous permit arrangements in the ETBF for fishing in the Coral Sea zone (as defined in the Plan). Separate permits are issued that allow the holder to fish in the Coral Sea zone. These permits (Coral Sea zone permits) are held in conjunction with a general longline permit.
In determining the number of longline SFRs available to a person eligible under subsection 25(1), the permit package concept provides for the catch history of each Coral Sea zone permit to be added to the catch history of the longline permit it was held in conjunction with to determine the activity level (see clause 11). The concept of a permit package is also relevant to the determination of category for longline permits (see clause 11).
Entitlement based upon fishing activity in the high seas
The high seas registration avenue was included in the ETBF Plan to cater for those individuals who fished exclusively on the high seas before an ETBF permit was required in order to do so. It was not intended that a person would be eligible for SFR allocation under both former subsections 25(1) and 25(3), or 26(1) and 26(3).
However, under the ETBF Plan, as in force prior to the Plan Amendment, a person that fished on the high seas during the relevant period may also be entitled to registration under subsection 25(1) if the person held a longline permit on 30 November 2002 which had not been surrendered or cancelled after that date (and similarly with section 26 minor line permits). Further, catches taken in the high seas may have been used in the calculation under section 30 of “activity level”, which in turn would be used to calculate an entitlement to SFRs under both subsection 32(2) and 32(4). The amendments to these parts (new sections 25 and 26) are intended to prevent such “double-dipping”.
In addition, there are consequential amendments to the availability/grant provisions in the ETBF Plan, arising from the introduction of the sequence and package concepts.
Consultation
Section 20 of the Act prescribes that section 17 of the Act applies in relation to amendments to a plan of management in the same way as it applies to the preparation of a new plan of management. Section 17 requires that AFMA must consult with such persons engaged in fishing as appear to be appropriate, and must give due consideration to any representations made to AFMA in connection with the draft plan. AFMA has met all consultation requirements required of it in the preparation of this instrument.
AFMA provided a draft of the Plan Amendment for public comment as prescribed in the Act. The period for public comment opened on 15 December 2006, via advertisements in the Commonwealth of Australia Gazette (No. S221), the Australian newspaper (under Public Notices on page 39) and the mailing of letters to all persons on AFMA’s register of interested parties for the ETBF on that date. The register includes all permit holders in the ETBF. The period for public comment closed on 24 January 2007.
Four submissions were received during the period for public comment. AFMA gave due consideration to the submissions that were received in respect of the draft Plan Amendment. One submission identified some remaining potential for the high seas eligibility criteria to allow “double dipping” on SFRs available under the draft Plan Amendment as circulated for public comment. During the round of public comment, AFMA made clear its intent to prevent “double dipping” on SFRs. Accordingly, sections 25 and 26 of the ETBF Plan have been strengthened to prevent “double dipping” on SFRs. The other three submissions did not raise any objections to the proposed amendments and did not require any change to the Plan Amendment circulated for public comment.
The Eastern Tuna and Billfish Fishery Management Advisory Committee (ETMAC) has been consulted throughout the development of the Plan Amendment. After they were consulted about the representations received during the formal round of public consultation, the ETMAC endorsed AFMA’s assessment of the representations received and recommended that AFMA proceed with determining the Plan Amendment.
The Office of Regulation Review (ORR) advised AFMA that a Regulation Impact Statement (RIS) is not mandatory for the Plan Amendment because the proposal is of a minor or machinery nature and does not substantially alter existing arrangements (ORR ID No. 7957).
AFMA has determined the Plan Amendment to amend the ETBF Plan following consultation with such persons engaged in fishing as appear appropriate and following due consideration of the representations received. AFMA is satisfied that the Plan Amendment pursues its objectives and is consistent with its corporate plan and current annual operational plan.
AFMA has informed the Minister of the consultations that were conducted and of representations that were received. The Minister is satisfied that AFMA gave due consideration to the representations received, conducted adequate consultations and that the Plan Amendment is consistent with AFMA’s corporate plan and current annual operational plan. The Minister has accepted the Plan Amendment.
The Plan Amendment is a legislative instrument under the Legislative Instruments Act 2003 and has been registered on the Federal Register of Legislative Instruments.
The Amendments
Details of the Plan Amendment are set out below:
Section 1 – provides that the Plan Amendment may be cited as the Eastern Tuna and Billfish Fishery Management Plan Amendment 2007 (No. 1).
Section 2 – provides that the Plan Amendment will commence on the day after it is registered as a legislative instrument.
Section 3 – provides that Schedule 1 amends the ETBF Plan.
Schedule 1
Clause 1 – Clause 1 amends section 3 by inserting a note below the definition of Coral Sea zone, clarifying that the Coral Sea zone and Sub-area 9, as described in Schedule 1A to the Fisheries Management Regulations 1992, are one and the same area. It should be noted that this area is also referred to in the ETBF Plan as “Area E” (see clause 15). This amendment has been made to reduce confusion that may arise from the different references to the same area.
Clause 2 – Clause 2 updates the definition of ETBF Regulations in section 3 of the ETBF Plan by replacing the year 2005 with the year 2007. Because of the need for this Plan Amendment, the ETBF Regulations were not implemented in 2005 as originally intended. The Regulations will be introduced in 2007.
Clause 3 – Clause 3 amends section 3 by inserting a definition of notice period. This amendment is consequential upon other amendments which refer to the “notice period”.
Clause 4 – Clause 4 amends section 3 by inserting a definition of old Coral Sea zone permit. It is necessary to introduce this definition because an old Coral Sea zone permit forms part of a permit package (see clause 11).
Clause 5 – Clause 5 amends section 3 by substituting revised definitions of old longline permit and old minor line permit. The definition of an old longline permit was revised as a consequence of the insertion of the old Coral Sea zone permit definition (clause 4). The revised definition makes clear that an old longline permit does not include an old Coral Sea zone permit.
Also, both the definition of old longline permit and old minor line permit have been revised so that a permit now needs to have been in force before the end of the notice period (as defined in clause 3) rather than before the commencement date of the ETBF Plan, as was previously specified. This change has been made as a result of the delay in implementing the SFR allocations in the ETBF Plan, which has necessitated the movement of the eligibility date to ensure that persons who have surrendered or otherwise disposed of permits since the ETBF Plan commenced are not eligible for registration.
Clause 6 – Clause 6 amends section 3 by inserting the definition of relevant period. The relevant period is the period of time over which catch history is assessed on a sequence of old longline permits. The relevant period is between 1 January 1992 and 22 December 1996 (inclusive). This definition was previously included in section 30 and has not changed. The definition has been moved as the relevant period is referred to in a number of sections in the Plan Amendment.
Clause 7– Clause 7 amends section 3 by inserting a definition of sequence. This definition is a reference to the new meaning of the term given in section 4A (clause 8).
Clause 8 – Clause 8 inserts a new section 4A. Section 4A defines the new concept of a sequence of permits. The ETBF Plan did not previously recognise that permits are only in force for a specific period. In the ETBF, permits have normally been issued for periods of one financial year (1 July to 30 June). Provisions in the ETBF Plan which relate to five calendar years of catch history (1 January 1992 to 22 December 1996 inclusive) of a permit are therefore not correct. Catch history is assessed over a period of five calendar years (1 January 1992 to 22 December 1996 inclusive), during which period each permit holder may have been issued up to six permits (1991/92, 1992/93, 1993/94, 1994/95, 1995/96 and 1996/97), rather than a single permit, as was assumed in the ETBF Plan.
The definition of a sequence is constructed to allow the linking of a number of connected historic permits for two main purposes. First, the sequence forms part of the criteria to be eligible for SFRs under sections 25 and 26 (see clauses 9, 10 and 11). Second, in determining the availability of SFRs to an eligible person, the sequence concept enables capture of catch history on old longline permits or permit packages over the qualifying period of 1 January 1992 to 22 December 1996 inclusive in order to determine activity level under section 30 (clause 11).
Clause 9 – Clause 9 amends section 25 by substituting clarified registration procedures for the grant of longline SFRs. There are two avenues for registration as an eligible person. The more common avenue is based upon a person holding a permit and is specified in section 25(1). This is referred to below as the “permit avenue”. The second avenue is based upon a person fishing exclusively in the high seas and is referred to below as the “high seas avenue”. This is in line with the original intent of the Management Plan.
Subsection 25(1) – provides the permit avenue for eligibility to longline SFRs and has been amended to incorporate the concept of a sequence of old longline permits. In view of the amendments to subsection 25(1), the previous subsection 25(2) is redundant because it referred to criteria that are now included in the definition of a sequence of old longline permits (clause 8).
Subsection 25(2) – provides the revised high seas avenue for eligibility to longline SFRs. The previous drafting of the high seas avenue (subsection 25(3)) did not ensure mutual exclusivity between eligibility based upon the permit and high seas avenues. The effect of the new provision is that only a person that is not eligible for the grant of a longline SFR under the permit avenue, and who meets the other criteria under subsection 25(2), is eligible for registration under the high seas avenue.
Clause 10 – Clause 10 amends section 26 by substituting clarified registration procedures for the grant of minor line SFRs. There are two avenues for registration as an eligible person. The more common avenue is based upon a person holding a permit and is described in section 26(1). This is referred to below as the “permit avenue”. The second avenue is based upon a person fishing exclusively in the high seas and is referred to below as the “high seas avenue”. This is in line with the original intent of the Management Plan.
Subsection 26(1) – provides the permit avenue for eligibility to minor line SFRs and has been amended to incorporate the concept of a sequence of old minor line permits. In view of the amendments to subsection 26(1), the previous subsection 26(2) is redundant because it referred to criteria that are now included in the definition of a sequence of old minor line permits (clause 8).
Subsection 26(2) – provides the revised high seas avenue for eligibility to minor line for minor line SFRs. The previous drafting of the high seas avenue (subsection 26(3)) did not ensure mutual exclusivity between eligibility based upon the permit and high seas avenues. The effect of the new provision is that only a person that is not eligible for the grant of a minor line SFR under the permit avenue, and who meets the other criteria under subsection 26(2), is eligible for registration under the high seas avenue.
Clause 11 – Clause 11 amends sections 29, 30 and 31.
Section 29 has been amended to include revised definitions of activity level, category and high-seas-only fisher and to insert a definition of the new concept of permit package. The revisions to the definitions of activity level and category are consequential to the introduction of the new concepts of sequence of permits and permit package respectively (see explanations below). The new concept of permit package has been introduced to reflect current and previous practice that requires old Coral Sea zone permits to be held in conjunction with an old longline permit and allows for the inclusion of Coral Sea zone permits in the calculation of activity level and category (see explanations below). The revision to the definition of high-seas-only fisher is a technical amendment required by the amendment and subsequent renumbering of section 25 (clause 9).
Section 30 has been amended to establish the activity level of a sequence of old longline permits. Formerly, the ETBF Plan only dealt with the activity level of one old longline permit. The sequence concept was introduced to link historic permits for this purpose (clause 8). Through the concept of a permit package, the amendments to this section also allow the catch history on old Coral Sea zone permits to be captured.
Section 31 has been amended to define a category both of an old longline permit and a permit package. The ETBF Plan formerly only included category of an old longline permit. The changes between the former and revised section 31 are consequential on the introduction of the new concepts of a sequence of permits (clause 8) and a permit package (above).
Clause 12 – Clause 12 amends subsection 32(2) by substituting a revised application of the formula used to calculate the number of longline SFRs a person is eligible for, in relation both to old longline permits (subsection 32(2)) and permit packages (subsection 32(2A)). The revision is a consequential amendment resulting from the introduction of the concepts of both a sequence of permits and a permit package. This is in line with the original intent of the Management Plan.
Clause 13 - Clause 13 amends subsection 32(4) by substituting revised definitions of A and P that are part of the formula for calculating the high seas factor which is used to determine the number of longline SFRs available to a person who is eligible under the high seas avenue. The revisions are consequential amendments resulting from the introduction of the concept of a permit package.
Clause 14 – Clause 14 amends the table in section 32 by substituting changes to the headings. These changes are consequential on the introduction of the new concepts of a sequence of permits and a permit package.
Clause 15 – Clause 15 amends section 32 by inserting a note at the foot of the table, clarifying that the Cairns/Townsville Restricted Area (“Area E”), referred to in items 2, 4, 5 and 6 in the table, is the same area referred to as Sub–area 9, in Schedule 1A to the Fisheries Management Regulations 1992, and as the Coral Sea zone, in the ETBF Plan (also see clause 1). This amendment has been made to reduce confusion that may arise from the different references to the same area. This is in line with the original intent of the Management Plan.
Clause 16 – Clause 16 amends section 33 by substituting the reference to subsection 26 (3) with 26(2). The change in cross reference is a technical amendment required by the amendment and subsequent renumbering of section 26 (clause 10).
Clause 17– Clause 17 amends section 37, which previously specified criteria used to prevent the issue of a boat permit to a person who had surrendered, cancelled or not renewed a permit. The new concept of permit sequence has rendered this requirement redundant.
Clause 18 – Clause 18 amends section 38, which previously specified criteria used to prevent the issue of a Coral Sea zone permit to a person who had surrendered, cancelled or not renewed a permit. The new concept of permit sequence has rendered this requirement redundant.