EXPLANATORY STATEMENT
Issued by the Authority of the Australian Fisheries Management Authority
Fisheries Management Act 1991
Fisheries Management (Bass Strait Central Zone Scallop Fishery) (Closures) Direction 2019
Legislative authority
Subsection 41A(2) of the Fisheries Management Act 1991 (the Management Act) provides that the Australian Fisheries Management Authority (the Authority) may direct that fishing is not to be engaged in in the fishery, or a particular part of the fishery, during a particular period or periods.
Subsection 41A(2) also provides that, before the Authority issues a direction, it must consult with the management advisory committee for the fishery, in the current context being the Bass Strait Central Zone Scallop Fishery Management Advisory Committee (ScallopMAC), about the content of the direction unless the direction is issued in circumstances of an emergency.
A direction made by AFMA is a legislative instrument for the purposes of the Legislation Act 2003 (see subsection 41A(5) of the Management Act).
Purpose
The purpose of the Fisheries Management (Bass Strait Central Zone Scallop Fishery) (Closures) Direction 2019 (the Closures Direction) is to direct, under subsection 41A(2) of the Management Act, that holders of fishing concessions for the Bass Strait Central Zone Scallop Fishery (the Fishery) must not engage in fishing in four specified areas in the vicinity of Apollo Bay, Flinders Island and King Island during the period from the commencement of the Closures Direction until the end of the day on 31 December 2019.
Background
The Bass Strait Central Zone Scallop Fishery (the Fishery) lies in the Bass Strait above the State of Tasmania and extends from the Victoria/New South Wales border, around southern Australia to the Victoria/South Australian border, typically outside 20 nautical miles of the Tasmanian and Victorian coastlines.
Management in the Fishery is through a combination of input and output controls in the form of individually transferable quotas with a Total Allowable Catch (TAC) determined for each quota species for each fishing year. The main target species in the Fishery is the commercial scallop (Pecten fumatus). The doughboy scallop (Chlamys (Mimachlamys) asperrimus) is common throughout the Bass Strait however it is rarely retained. The target species are caught primarily for the Australian domestic market.
The Harvest Strategy for the Bass Strait Central Zone Scallop Fishery contains measures for setting a TAC based on closing areas of the Fishery following research surveys to determine biomass estimates. [1] These measures aim to ensure scallop beds of sufficient size and density are maintained to provide for ongoing recruitment in the Scallop fishery.
Purpose
The Direction closes four areas of the Scallop fishery collectively estimated through independent scientific surveying to contain 10,189 tonnes of spawning size commercial scallops (greater than 85 millimetres), while allowing for the remaining area of the Scallop fishery to stay open to fishing. Research indicates that closing areas of scallops to fishing promotes recruitment to maintain the stock at sustainable levels.
The closures are consistent with Tier 2 of the Harvest Strategy for the Bass Strait Central Zone Scallop Fishery, which provides for a TAC of at least 2,000 tonnes or more to be set should scallop bed(s) containing a total of at least 3,000 tonnes of scallops of a minimum size limit of 85 millimetres and high density be located and closed to fishing. As identified under Tier 2 of the Harvest Strategy, the closure of 10,189 tonnes enables a TAC to be set at 3,897 tonnes. That TAC is being determined by the Authority at the same time as the making of the Closures Direction (see the Bass Strait Central Zone Scallop Fishery (Total Allowable Catch) Determination 2019).
Regulation Impact Statement
The Office of Best Practice Regulation advised that a Regulation Impact Statement is not required for instruments directing that fishing not be engaged in sub-areas of a fishery under its standing carve-out arrangements for the Authority (OBPR ID: 14421). This applies to the Closures Direction.
Statement of compatibility prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
The Closures Direction does not infringe any of the applicable rights or freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. Accordingly, in the Authority’s assessment, this legislative instrument is compatible with human rights.
Consultation
Paragraph 41A(2)(a) of the Management Act provides that, before giving a direction, the Authority must consult the ScallopMAC and consider its views. The Authority may also consider the views of other interested persons under paragraph 41A(2)(b).
The Authority consulted on the proposed closures for the 2019 fishing year with the Scallop Resource Assessment Group on 6 June 2019, and with ScallopMAC on 7 June 2019. Both ScallopRAG and ScallopMAC provided support for the four areas prescribed in the Direction to be closed.
The Authority is satisfied that the Direction is consistent with the objectives of the Bass Strait Central Zone Scallop Fishery Management Plan 2002 (the Scallop Management Plan) as well as with its obligation to pursue the objectives set out in Section 3 of the Management Act in particular the objective concerned with the sustainability of fisheries resources (paragraph 3(1)(b)).
Details of the Closures Direction are set out below:
Section 1 | Provides that the name of the Closures Direction is the Fisheries Management (Bass Strait Central Zone Scallop Fishery) (Closures) Direction 2019. | ||||||||||||||||||
Section 2 | Provides that the Direction commences on the day after it is registered on the Federal Register of Legislation. | ||||||||||||||||||
Section 3 Section 4 | Provides that the Direction is repealed on 1 January 2020. Provides that the Direction is made under subsection 41A(2) of the Management Act. | ||||||||||||||||||
Section 5 | Subsection 5(1) prescribes relevant definitions for the Direction. Subsection 5(2) provides that a term used in the Direction and in the Plan has the same meaning in the Direction as in the Plan. This means that the definition of ‘boat statutory fishing right’, ‘fishery’ and ‘quota statutory fishing right’ in section 3 of the Plan apply to those terms in section 6 of the Direction. | ||||||||||||||||||
Section 6 | Subsection 6(1) provides that a holder of a boat statutory fishing right or a quota statutory fishing right, or a person acting on the holder’s behalf, must not engage in fishing in the Apollo Bay 1 area (paragraph (a), prescribed in clause 1 of Schedule 1 to the Direction), the Flinders Island area (paragraph (b), clause 2 of Schedule 1), the King Island 7 area (paragraph (c), clause 3 of Schedule 1), and the King Island blue dot area (paragraph (d), clause 4 of Schedule 1). These four closure areas are particular parts of the fishery that have been identified as containing a total of 10,189 tonnes of commercial scallops greater than 85 millimetres in size, and of a high density as outlined in the following table.
The specific application of the direction in this subsection to holders of relevant fishing rights in the Scallop fishery, or persons acting on their behalf, relies upon subsection 33(3A) of the Acts Interpretation Act 1901. That subsection relevantly provides that, where an Act confers a power to make an instrument of legislative character with respect to particular matters, the power shall be construed as including a power to make such an instrument with respect to some only or those matters or with respect to a particular class of matters. Subsection 6(2) provides that section 6 applies in the period from the commencement of the Closures Direction until the end of the day on 31 December 2019. This is the period in which fishing in the Scallop fishery will be permitted in 2019. | ||||||||||||||||||
Schedule 1 | Clause 1 of Schedule 1 to the Direction describes the part of the fishery that is the Apollo Bay 1 area. This area is closed to commercial scallop fishing under paragraph 6(1)(a) of the Direction. Clause 2 of Schedule 1 to the Direction describes the part of the fishery that is the Flinders Island area. This area is closed to commercial scallop fishing under paragraph 6(1)(b) of the Direction. Clause 3 of Schedule 1 to the Direction describes the part of the fishery that is the King Island 7 area. This area is closed to commercial scallop fishing under paragraph 6(1)(c) of the Direction. Clause 4 of Schedule 1 to the Direction describes the part of the fishery that is the King Island Blue Dot Extended area. This area is closed to commercial scallop fishing under paragraph 6(1)(d) of the Direction. |
[1] Available on the Auhtority’s website: https://www.afma.gov.au