EXPLANATORY STATEMENT
Issued by the Authority of the
Australian Fisheries Management Authority
Fisheries Management Act 1991
Small Pelagic Fishery Management Plan 2009
Fisheries Management (Small Pelagic Fishery Closures) Direction 2021
Subsection 41A(2) of the Fisheries Management Act 1991 (the Management Act) provides that the Australian Fisheries Management Authority (AFMA) may, after such consultation as set out in 41A(2), direct that fishing is not to be engaged in the fishery, or a particular part of the fishery, during a particular period or periods. Under subsection 41A(2B) of the Management Act a direction may be given in an emergency without consultation under 41A(2). Additionally, the notification requirements under subsection 41A(2A) do not apply in respect of the direction.
The Direction is a legislative instrument for the purposes of the Legislation Act 2003.
The Fishery
The Small Pelagic Fishery (the Fishery) extends from the Queensland/New South Wales border, typically outside 3 nautical miles, around southern Australia to a line at latitude 31° south (near Lancelin, north of Perth). The Fishery is currently divided into two sub areas East and West of latitude 146°30’00”.
The Fishery is managed under the Small Pelagic Fishery Management Plan 2009, in force under section 17 of the Management Act, and management of the Fishery is achieved through output controls in the form of individually transferable quotas with a Total Allowable Catch limits determined for each quota species for each fishing year. The target species in the Fishery are Australian sardine, blue mackerel, jack mackerel and redbait.
Background to Direction
AFMA is established under the Fisheries Administration Act 1991 (FA Act) and the objectives that it must pursue are contained in section 3 of the Management Act and section 6 of the FA Act. Under section 3 of the Management Act, AFMA must ensure that the exploitation of fisheries resources and the carrying on of any related activities are conducted in a manner consistent with the principles of ecologically sustainable development (which includes the exercise of the precautionary principle), in particular the need to have regard to the impact of fishing activities on non-target species and the long term sustainability of the marine environment. In addition, AFMA must ensure, as far as practical, that measures adopted in pursuit of its objectives must not be inconsistent with the preservation, conservation and protection of all species of whales which as defined in section 4 of the Management Act includes dolphins as part of the sub-order Odontoceti.
Following a total of 17 dolphin interactions in the Fishery within the period of six weeks using the midwater trawl method, AFMA has considered the need for emergency action. All interactions have resulted in mortality and AFMA considers this rate of dolphin mortality to be unusually high, requiring urgent action. Based on the recent rate of dolphin mortality, the alternative of not utilising the provisions of subsection s41A(2B) and undertaking the required consultation followed by a minimum notice period of seven days presents a risk of further dolphin mortality. Further, the SPF Dolphin Strategy (The Strategy) considers closures as a response to persistent dolphin interactions and mortalities, and as such taking this action is consistent with the objectives of The Strategy.
The closure of part of the Fishery allows for the midwater trawl fishing method to continue to be used elsewhere, supporting the pursuit of the Authority’s objective of maximising the net economic returns to the Australian community from the management of Australian fisheries.
The closure would provide time for AFMA to review available data and a recently completed scientific report. The outcome of this work would inform interim management responses to further incentivise industry to operate in a manner that minimises the risk of dolphin interactions and form the basis of a more holistic review of the SPF Dolphin Strategy (The Strategy).
The Direction
This Direction implements emergency closure arrangements for three SPF grid cells off the south coast of New South Wales to minimise further dolphin mortalities. The Direction will be in place until the end of the current review period (31 October 2021), defined in The Strategy. The direction applies to concession holders fishing in the Fishery using the midwater trawl fishing method.
The closure of these grids will protect dolphins in this area and create an incentive for concession holders in the Fishery to consider novel mitigation measures and review operational procedures in order to minimise dolphin mortalities. This is consistent with the intent of The Strategy. Spatial closure arrangements based on triggers for dolphin mortalities have been successfully applied by the AFMA in the gillnet sector of the Southern and Eastern Scalefish and Shark Fishery.
Regulation Impact Statement
The Office of Best Practice Regulation (OBPR) has previously advised that a Regulation Impact Statement (RIS) is not required for regulatory changes that are consistent with the carve-out agreement in place to cover certain regulatory changes by AFMA. The carve-out guidance specifically considers the action of directing that fishing not be engaged in sub-areas of a fishery (OBPR ID 14421).
Consistent with the agreement, the anticipated impacts of the closure direction are minor overall, affecting a sub-area of the fishery only. Further to this, closure of part or all of the fishery is already considered as a management response under the Dolphin Strategy.
Consultation
This Direction is given in an emergency and under subsection 41A(2B) of the Management Act and as such, no consultation is required. AFMA will continue to consult with the management advisory committee for the Fishery, industry members and scientists regarding measures to further reduce the risk of marine mammal mortalities by the midwater trawl fishing method.
Statement of compatibility prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
The 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 AFMA’s assessment, this legislative instrument is compatible with human rights and a statement of compatibility is included at Attachment A.
Details of the Direction are set out below:
Clause 1 | Provides for the Direction to be cited as the Fisheries Management (Small Pelagic Fishery (Closures) Direction 2021. |
Clause 2 | Provides that the Direction commences on 8 July 2021. |
Clause 3 | Provides that the Direction ceases on 1 November 2021. |
Clause 4 | Provides the authority under which this Direction is made. |
Clause 5 | Provides definitions for certain terms mentioned in the Direction and that terms used in the Direction that are defined in the Small Pelagic Fishery Management Plan 2009 (the Plan) and the Management Act, have the same meanings they have in the Plan and Management Act. The Small Pelagic Fishery Management Plan 2009 has been incorporated by reference. Section 10 of the Acts Interpretation Act 1901 (as applied by section 13(1)(a) of the Legislation Act 2003) has the effect that references to Commonwealth disallowable legislative instruments can be taken to be references to versions of that instrument as in force from time to time. The Small Pelagic Fishery Management Plan 2009 in 2021 is available to view free of charge on the website of the Federal Register of Legislation (https://www.legislation.gov.au/Details/F2014C01077). The Fisheries Management Regulations 2019 (Regulations) have been incorporated by reference. Section 10 of the Acts Interpretation Act 1901 (as applied by section 13(1)(a) of the Legislation Act 2003) has the effect that references to the Regulations can be taken to be references to versions of the same as in force from time to time. The Small Pelagic Fishery Management Plan 2009 in 2021 is available to view free of charge on the website of the Federal Register of Legislation (https://www.legislation.gov.au/Details/F2019L00383). Clause 5 incorporates by reference the document titled “Spatial Management Grids in the Small Pelagic Fishery” as published in Commonwealth Gazette number C2018G00272. Paragraph 14(1)(b) of the Legislation Act 2003 allows a legislative instrument to incorporate any other document in writing which exists at the time the legislative instrument commences, or at a time before its commencement. Pursuant to section 14(1)(b) of the Legislation Act 2003 this instrument incorporates the document titled “Spatial Management Grids in the Small Pelagic Fishery” as it applies on the date this legislative instrument commences. This document is available to view free of charge on the website of the Commonwealth Government Federal Register of Legislation at https://www.legislation.gov.au/Details/C2018G00272. |
Clause 6 | Specifies the persons to whom the Direction applies. |
Clause 7 | Directs that fishing is not to be engaged in in the Fishery using the mid-water trawl fishing method within the areas specified. |
Schedule 1-3 | Prescribes the area of the Small Pelagic Fishery Management Grid G101, G103 and G105. |