EXPLANATORY STATEMENT
Fisheries Management Act 1991
Temporary Order
Southern and Eastern Scalefish and Shark Fishery Management Plan 2003
Fisheries Management (Southern and Eastern Scalefish and Shark Fishery Management Plan 2003) Temporary Order 2010
Section 43 of the Fisheries Management Act 1991 (the Management Act) provides for the Australian Fisheries Management Authority (AFMA) to make an order to enable quick action to deal with (inter alia), circumstances where urgent action is required for purposes related to the management of a fishery. Under section 92(1) of the Fisheries Administration Act 1991(the Administration Act), the Commission has delegated its powers and functions under section 43 of the Management Act to the Chief Executive Officer of AFMA.
The Southern and Eastern Scalefish and Shark Fishery
The Southern and Eastern Scalefish and Shark Fishery (the Fishery) is a multi-method, multi-species fishery that lands fresh scalefish and shark for the Australian market and for export. The area of the Fishery stretches south from Fraser Island in southern Queensland, around Tasmania to Cape Leeuwin in southern Western Australia. It comprises a number of historically separate fisheries which have substantial overlap in their areas of operation and species targeted.
The Commonwealth Gillnet Sector or Commonwealth Shark Hook Sector of the Fishery extends from the New South Wales – Victoria border, south around Tasmania to the South Australia - Western Australian border. A total of 83 fishing concessions are permitted to fish in the South Australian component of the this sector. In 2009, 19 of these concessions were active in the area.
The Southern and Eastern Scalefish and Shark Fishery Management Plan 2003
The SESSF Management Plan 2003 (the Plan) was determined on 5 September 2003. The Fishery is managed by a combination of output controls (that limit the amount of fish that can be taken from the fishery) in the form of an annual Total Allowable Catch (TAC) and input controls (that limit the number of vessels and type of gear than can be used in the fishery). Operators are required to have a boat Statutory Fishing Right to fish in the fishery and quota Statutory Fishing Rights to cover their catch of all quota species.
Background to the Temporary Order
The Fishery and its operations were declared an approved Wildlife Trade Operation (WTO) for the purposes of section 303FN of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) on 21 December 2006. Conditions are imposed on AFMA to effect the protection and sustainable trade of species within the Fishery with which AFMA must comply in order to maintain its accreditation. The purpose of the Declaration is to provide for the lawful export of product from the Fishery.
On 19 February 2010, the Minister for Environment, Water, Heritage and the Arts made a Declaration with conditions that AFMA has accepted. One of the conditions, Condition 6, responds to the threat to Australian sea lions in the Fishery. It required AFMA, by 30 June 2010, to implement long-term management measures, including formal fisheries closures that would lead to a significant reduction of the impact of fishing activity on Australian sea lions and enable the recovery of sub-populations.
The conditions of the Declaration also required management arrangements to be negotiated with stakeholders including fishing organisations and relevant government departments. These negotiations were complex and prolonged and only recently concluded. It is imperative that the closure Direction be made prior to 30 June 2010 so as to fulfil the obligations of the WTO Declaration. AFMA would not be in a position to do so and comply with the 7 day Notice requirement imposed by subsection 56(3) (the Notice Provisions) of the Management Plan.
Section 43 of the Management Act provides for AFMA to make a Temporary Order to respond to circumstances where urgent action is required to deal with, amongst other things, circumstances where urgent action is required for purposes related to management of a fishery. If an order is inconsistent with a provision of a plan of management, the order overrides the provision, and to that extent, the provision has no effect.
In its terms, the Temporary Order creates such an inconsistency by providing that where a Direction is given that fishing using gillnet methods is not to be engaged in in the Commonwealth Gillnet or Commonwealth Shark Hook or the South Australian Coastal Waters sectors (Gillnet Sectors) of the Fishery and the stated purpose of the Direction is to put in place closures to protect Australian sea lions from the impact of fishing using gillnet methods, then the words ‘at least 7 days before the direction takes effect’ in subsection 56(3) of the Management Plan do not apply.
The effect of the Temporary Order is that it removes the requirement in the Plan of seven days’ notice to be given before a closure Direction takes effect. The Temporary Order is limited only to closure Directions in the Gillnet Sectors for the purposes of protecting Australian sea lions. AFMA is still required to give written notice of the closure to concession holders, although not the full seven days’ notice. It does not remove any consultation requirement for closures in the Gillnet Sectors of the Fishery, nor does it remove any consultation or notice requirements for other closures within the Fishery.
The Temporary Order is consistent with AFMA’s ecologically sustainable development objective as it will enable a closure direction to be put in place to protect a vulnerable species, in accordance with the ‘precautionary principle’ and giving regard to the impact of fishing activities on non-target species and the long term sustainability of the marine environment.
Consultation
AFMA has undertaken extensive consultation with the South Australian Gillnet Sector, the Commonwealth Fisheries Association (CFA), conservation groups, South Australian state fishery management, research and environmental agencies, the Department of Agriculture, Fisheries and Forestry, the Bureau of Rural Sciences and the Department of Environment Heritage Water and the Arts. South East Management Advisory Committee (SEMAC) and Shark Resource Assessment Group (SharkRAG) have also been consulted.
Consultation has been ongoing on this issue since November 2009. This has included a range of stakeholder workshops, SEMAC & SharkRAG meetings as well as distributing drafts of the proposed management arrangements to stakeholders for comment.
AFMA received a range of submissions regarding the spatial closures contained in the strategy. Fishing industry members were generally supportive of smaller closures rather than larger closures. Environmental groups advised that they did not consider the spatial closures large enough to protect Australian sea lions. With all submissions considered, AFMA developed the Australian sea lion management strategy, which includes the making of Directions not to engage in fishing in areas of concern.
The Temporary Order, in removing the seven days’ notice period, is not expected to cause any concerns or impact significantly on gillnet operators since all operators are aware that new closures would be implemented by 30 June 2010. There is currently a voluntary closure in place with the same boundaries with which most operators have already complied.
Regulatory Impact Statement
The Office of Best Practice Regulation (OBPR) has advised it considers the impacts of the amendments will be ‘low’, that no further analysis is required and that the preparation of a RIS or quantification of compliance costs is not required (OBPR Reference No. 11535).
Details of Temporary Order
Clause 1 - Provides that the Order is the Fisheries Management (Southern and Eastern Scalefish and Shark Fishery Management Plan 2003) Temporary Order 2010.
Clause 2 - Provides that the Order commences on the day it is registered with the Federal Register of Legislative Instruments.
Clause 3 - Provides that the words ‘at least 7 days’ in subsection 56(3) of the Management Plan do not apply to Directions not to engage in fishing using gillnet methods in the Gillnet Sectors for the purposes of the protection of Australian sea lions.