EXPLANATORY STATEMENT
Issued by the Authority of the
Australian Fisheries Management Authority
Fisheries Management Act 1991
Southern and Eastern Scalefish and Shark Fishery
Fisheries Management (Southern and Eastern Scalefish and Shark Fishery Management Plan 2003) Temporary Order 2011 No. 3.
This order is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Subsection 43 (1)(a)(ii) of the Fisheries Management Act 1991 (the Management Act) provides for the Australian Fisheries Management Authority (the Authority) to make a temporary 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. Pursuant to section 92(1) of the Fisheries Administration Act 1991 (the Administration Act), the Authority has delegated it powers and functions under section 43 of the Management Act to the Chief Executive Officer of the Authority.
Pursuant to section 43(9) of the Management Act, if an order is inconsistent with a provision of a plan of management, or a fishing concession, the order overrides the provision and, to that extent, the provision has no effect.
The fishery
The Southern and Eastern Scalefish and Shark Fishery (the fishery) covers the area of waters from approximately 80 nautical miles off the coast near Fraser Island in Queensland, south around Tasmania and west to Cape Leeuwin in Western Australia. The area of the fishery encompasses almost half of the waters within the Australian Fishing Zone. The fishery operates in both Commonwealth and State waters under complex jurisdictional arrangements, due to different Offshore Constitutional Settlement arrangements with each State.
The fishery is managed under the Southern and Eastern Scalefish and Shark Fishery Management Plan 2003, in force under s17 of the Management Act, mainly through output controls in the form of Total Allowable Catch limits set under the Commonwealth Fisheries Harvest Strategy Policy and the specific fishery Harvest Strategy Framework. Input controls used include a limit on the number of boats that operate in each sector, as well as gear restrictions such as limits on mesh size and the amount of fishing gear that may be used.
Background to the temporary order
In June 2010 the Authority put in place the Australian Sea Lion Management Strategy (the Strategy). The Strategy was developed to reduce and monitor the interactions between Australian Sea Lions and gillnets used by Commonwealth shark fishers in the area of the fishery off South Australia. Australian Sea Lions are classified as a threatened (vulnerable) species under the Environment Protection and Biodiversity Conservation Act 1999.
The Strategy followed a report by the South Australian Research and Development Institute that assessed that high levels of Sea Lion by-catch mortality were limiting the recovery of most colonies in South Australia. Accordingly, the purpose of the Strategy was to significantly reduce the impact of gillnet fishing on Australian Sea Lions so as to enable colonies to recovery.
The measures implemented under the Strategy included formal closures around more than 40 Sea Lion colonies in South Australian waters; the setting of Sea Lion mortality limits that would trigger additional closures if unacceptable levels of ongoing Australian Sea Lion interaction occurred; and a review of gillnet fishing practices. The Strategy included a commitment by South Australia industry representatives to develop a Gillnetting Code of Conduct, with assistance from the Authority and the Commonwealth Fisheries Association within three months of the Strategy being implemented. The Strategy also noted that observer coverage (being the proportion of boats carrying an AFMA observer) had been significantly increased in 2009, and was further increased under the Strategy. There were two quarterly reviews of the strategy, in which industry members and other stakeholders participated, and the South East Management Advisory Committee (the Committee) appointed under section 56 of the Administration Act was briefed on the results of the reviews.
Despite those measures, the Authority assessed on the basis of data it had received that some gillnet boats had not been accurately reporting interactions with protected species, including Australian Sea Lions, and that the actual mortality of Sea Lions and other protected species (such as birds and dolphins) was likely to be significantly greater than the mortality that was being reported. In addition external scientific reviews questioned the effectiveness of the Strategy in protecting Sea Lions and monitoring the fishery’s interactions with them.
The Authority considered that urgent, short term, action was required to protect these species. It therefore made the Fisheries Management (Southern and Eastern Scalefish and Shark Fishery Management Plan 2003) Temporary Order 2011 (the ASL temporary order), which commenced on 1 May 2011. The ASL temporary order closed additional areas of the fishery to fishing by gillnets, allowed the use of hooks by affected eligible concession holders in the closed areas and the Australian Sea Lion Management Zone and required mandatory monitoring through onboard observers or cameras if fishing was undertaken by gillnets in the areas of waters adjacent to the closed areas. Two additional policy measures were also implemented: bycatch triggers under the Australian Sea Lion Management Strategy were reduced and 10 percent observer coverage was instituted across the gillnet hook and trap fishery in areas other than the Australian Sea Lion Management Zone.
The ASL temporary order expires on 31 October 2011.
Combination of measures
The Authority’s Commission determined that a continuation of measures to minimise interactions with Australian Sea Lions is required.
This temporary order is one of a combination of measures to come into force on
1 November 2011, to replace the measures implemented by the ASL temporary order. These measures comprise: (1) this order, which continues the entitlement of certain holders of gillnet boat statutory fishing rights and South Australian Coastal Waters permits to fish using hook methods; (2) a direction under s41A of the Management Act, which closes to gillnet fishing the same areas in which the ASL temporary order prohibited fishing using gillnet methods; and (3) the specification of further conditions on certain classes of fishing concession, which continue requirements of the ASL temporary order concerning observer coverage, removal of biological material from nets and discharge of offal. The by catch triggers will be continued and reviewed to reduce them further and the 10% per cent observer coverage in the rest of the fishery remains in place.
The action is consistent with the Authority’s obligation to pursue its statutory objectives. These include the objective of ensuring that the exploitation of fisheries resources is conducted in manner consistent with the principles of ecologically sustainable development (which include the exercise of the precautionary principle), and 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.
Allowing, by this temporary order, eligible gillnet fishers, who are subject to the closure to gillnet fishing, to use an alternative fishing method which does not pose a threat to Sea Lions, is also consistent with the Authority’s objective of maximising the net economic returns to the Australian community from the management of Australian fisheries.
The temporary order
In making this temporary order, the Authority is satisfied that no other action is appropriate. The alternative would have been to issue fishing permits under s32 of the Management Act, authorising eligible gillnet fishers to fish in the ASL Zone using hooks. However, industry members raised reasonable concerns about the possible impact of a decision to issue permits on the value of existing concessions that authorise the use of hooks. A further 6 months (the maximum duration of the temporary order) will allow more time for the Authority to investigate (including through consultation with relevant stakeholders) what the eligibility criteria for the grant of fishing permits authorising the use of hooks should be in the longer term, as well as the particular hook method(s) that should be authorised. It will also give the affected gillnet operators more time to assess whether hooks are a viable alternative to the use of gillnets, which will be relevant to the management measures implemented in the longer term.
Consultation
The Authority has been working with stakeholders for some time to develop strategies to reduce the level of interactions in the Gillnet Hook and Trap Sector of the fishery with threatened, endangered and protected species. This culminated initially in the development of the Australian Sea Lion Management Strategy in June 2010, followed by the ASL temporary order implemented which commenced on 1 May 2011.
Since then the Authority has consulted on the management measures to replace the ASL temporary order with industry, environment groups and scientists, including through the Shark Resource Assessment Group (Shark RAG) and the Committee. Shark RAG comprises scientists, experts, industry and the Authority’s representatives and provides scientific advice to the Authority and the Authority’s Commission. The Committee is comprised of AFMA, industry, scientific, recreational fishery, conservation, and State members.
In consultation with Shark RAG, the Authority noted that no additional information was available that would cause the Authority to change the management approach contained in the ASL temporary order. The Committee supported continuing, in substance, the management measures contained in the ASL temporary order to protect Australian Sea Lions.
The Authority will continue to consult with the Committee, Shark RAG, industry members and other stakeholders, in developing long term strategies to achieve the objectives of these measures.
Regulation Impact Statement
A Regulation Impact Statement (RIS) has been prepared and has been approved by the Office of Best Practice Regulation (OBPR ID 13138).
Terms of the Order
In general terms, this temporary order gives effect to the following measures:
1. Allow some gillnet operators to use shark hooks in the Australian Sea Lions Management Zone, adjacent to South Australia.
The Order authorises those holders of gillnet boat statutory fishing rights and South Australian coastal waters permits, who have a recent history of fishing in the Australian Sea Lions Management Zone to fish using hook methods in that area of the fishery. Hook methods do not pose a threat to Sea Lions.
Details of the temporary order are set out below:
Clause 1 provides that the Order is to be cited as the Fisheries Management (Southern and Eastern Scalefish and Shark Fishery Management Plan 2003) Temporary Order 2011 No. 3.
Clause 2 provides that the Order commences on 1 November 2011.
Clause 3 defines the terms used in the Order. These include ‘Australian Sea Lions Management Zone’ (ASL Zone), and ‘South Australian Coastal Waters permit’. It also provides that where the Order authorises the use of hook methods, the method authorised is demersal longlines without the use of automatic baiting equipment.
Sub-clause 4(1) provides that sub-clauses 4(2) and (3) apply to the holder of a gillnet boat SFR or a South Australian Coastal Waters permit, if the holder fished between 1 July 2009 and
31 December 2010 in the ASL Zone and had deployed more than 25% total effort in the ASL Zone; or AFMA determines in exceptional circumstances, where the 25% requirement is not met, that sub-clauses 4(2) and (3) apply.
Sub-clause 4(2) provides that a gillnet boat statutory fishing right held by a person to whom subclause 4.1 applies, authorises the person to fish in the part of the ASL Zone that is in the Australian Fishing Zone using hook methods. In specifically authorising the use of hooks in the areas described in Schedule 1, being the areas closed to gillnet fishing under the ASL temporary order, and the rest of the ASL Zone, this order reflects the two areas in which the use of hooks is authorised under that temporary order.
Sub-clause 4(3) provides that a South Australian Coastal Waters permit to which sub-clause 4(1) applies that authorises the use of gillnet methods in the area of the South Australian Coastal Waters Sector, allows the use of hook methods in those parts of the ASL Zone that are within the South Australian Coastal Waters Sector. In specifically authorising the use of hooks in the areas described in Schedule 1 and the rest of the ASL Zone, this order reflects the two areas in which the use of hooks is authorised under that temporary order.
Clause 5 provides that if a person transfers a gillnet boat statutory fishing right or a fishing permit referred to in sub-clauses 4(2) or 4(3) the right or permit will no longer authorise the holder to fish using hook methods as authorised by those clauses.