Explanatory Statement
Fisheries Management Act 1991
Fisheries Management (Southern and Eastern Scalefish and Shark Fishery Management Plan 2003) Temporary Order 2011.
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.
Management in the fishery is 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 AFMA 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 (EPBC Act).
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 lions 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 restrictions. The Strategy included a commitment by South Australia industry representatives to develop a Gillnetting Code of Conduct, with assistance from AFMA 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. Since the Strategy was implemented there have been two quarterly reviews, in which industry members and other stakeholders participated, and the South East Management Advisory Committee (SEMAC) appointed under section 56 of the Administration Act was briefed on the results of the reviews.
Despite those measures, AFMA assessed on the basis of data recently received that some gillnet boats have 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) is likely to be significantly greater than the mortality that is being reported. In addition recent external scientific reviews have questioned the effectiveness of the Strategy in protecting sea lions and monitoring the fishery’s interactions with them. AFMA therefore considered that urgent, short term, action was required to protect these species.
The action is consistent with AFMA’s legislative obligation to pursue its 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.
In allowing those gillnet fishers most affected by the new measures to continue to fish in areas now closed to gillnet fishing using an alternative fishing method, the action is also consistent with AFMA’s further objective of maximising the net economic returns to the Australian community from the management of Australian fisheries.
The measures imposed by this temporary order commence on 1 May 2011, the start of the 2011-2012 fishing season. In view of the urgency, and the need to introduce the measures without the delay that would be caused if AFMA were to consult on the specific measures, AFMA considered that no other action was appropriate. Once the measures are in place, AFMA will consult with industry members, scientists and other stakeholders with a view to developing longer term measures to replace the measures imposed by this temporary order.
Consultation
AFMA has been working with stakeholders for some time to develop strategies to reduce the level of interactions with threatened species in the Gillnet, Hook and Trap Sector of the fishery (which is also where the interactions with sea lions occur). The work specifically relating to Australian sea lions culminated in the development of the Strategy in June 2010.
Further, as noted, since the Strategy was implemented there have been two quarterly reviews, in which industry members participated, and consultation with the relevant management advisory committee appointed under section 56 of the Administration Act, the South East Management Advisory Committee (SEMAC).
In view of the need to take immediate action, consultation was not conducted prior to the implementation of the specific measures contained in this Order. AFMA will continue to consult with industry members, scientists, SEMAC and other stakeholders in developing long term strategies to achieve the objectives of these measures.
Regulation Impact Statement
A draft Regulatory Impact Statement (RIS) has been prepared and is being considered by the Office of Best Practice Regulation (OBPR ID 12562).
Terms of the Order
In general terms, this Temporary Order gives effect to the following measures:
1. 100% independent monitoring on boats engaged in gillnet fishing while in the Australian Sea Lion Management Zone (ASL Zone).
Operators fishing in the ASL Zone must carry an observer, or have a working camera system fitted to the boat, when fishing with gillnets or carrying gillnets whilst at sea. Where observers are not on board or cameras not fitted fishing is not permitted, unless AFMA authorises otherwise.
2. Prohibition on the use of gillnets in enlarged areas to protect sea lion colonies
Further to closures to gillnet fishing that are already in place, the Order provides that the holders of gillnet boat statutory fishing rights, and South Australian coastal waters permits that allow the use of gillnets, are not authorised to use gillnet methods in four areas in the ASL Zone, as defined in Schedule 1 to the Order, that cover 31 sea lion colonies, that significantly extend the area currently closed to gillnet fishing. [Gillnet statutory fishing rights are granted under the Management Plan and give access to Commonwealth waters. South Australian Coastal Waters permits are granted under s32 of the Management Act and give access to the South Australian Coastal Waters Sector.]
3. Allow some gillnet operators to use shark hooks in the ASL management area
The order authorises the holders of gillnet boat statutory fishing rights and those South Australian coastal waters permits affected by the above measure, and who have a recent history of fishing in the ASL Zone, to fish using hook methods in specified parts of the ASL Zone, and to use either hook or gillnet methods in other parts of the Zone, that are outside the at risk areas. Hook methods do not pose a threat to sea lions.
4. Removal of biological material from gillnets prior to (re)setting
The incomplete removal of all biological material from gillnets prior to nets being reset has been identified as a potential cause of increased interactions with threatened species in the fishery. The Order requires gillnet operators to completely remove all biological material from nets prior to setting.
5. Discharge of processing waste
The discharge of processing waste (offal) from boats is known to attract sea lions and other non-target species. The Order therefore prohibits the discharge of processing waste from boats while gillnets are being set.
Details of the Temporary Order are set out below:
Clause 1 provides the Order to be cited as the Fisheries Management (Southern and Eastern Scalefish and Shark Fishery Management Plan 2003) Temporary Order 2011.
Clause 2 provides that the Order commences on 1 May 2011.
Clause 3 defines the terms used in the Order. These include ‘South Australian Coastal Waters permit’, which means a fishing permit that authorises the holder to fish using gillnet methods, or gillnet methods and hook methods, in the South Australian Coastal Waters Sector. 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), (4) and (5) 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), (4) and (5) 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 area defined in Schedule 1 by hook methods only, and to fish in the area of the ASL Zone that is not within Schedule 1 using either hook methods or gillnets.
Sub-clause 4(3) provides that a gillnet boat statutory fishing right held by a person to whom subclause 4(1) does not apply authorises the person to fish in the Commonwealth Gillnet Sector, excluding the areas described in Schedule 1, using gillnet methods only.
Sub-clause 4(4) (a) provides that a fishing 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 only in the area defined in Schedule 1 that is within the South Australian Coastal Waters Sector; and authorises the use of gillnet methods or hooks in the area of the ASL Zone that is within the South Australian Coastal Waters Sector and not within the area defined in Schedule 1.
Sub-clause 4(4) (b) provides that when hook methods are used in the South Australian Coastal Waters Sector, no more than 400 hooks may be in the water at any one time. When hook methods are used in the remainder of the ASL Zone outside the South Australian Coastal Waters Sector, there are no limits to the number of hooks that may be in the water at any one time.
Sub-Clause 4(5) provides that a fishing permit to which sub-clause 4(1) applies that authorises the use of gillnet methods and hook methods in the South Australian Coastal Waters Sector; allows the use of hook methods only in the area defined in Schedule 1 that is within the Sector.
Sub-Clause 4(6) provides that a South Australian Coastal Waters permit to which sub-clause 4(1) does not apply, authorises the use of gillnet methods only in the South Australian Coastal Waters Sector, excluding the area defined in Schedule 1.
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(4) the right or permit will no longer authorise the holder to fish using hook methods as authorised by those clauses.
Clause 6 provides, for the avoidance of doubt, that the Order does not affect any direction in force that fishing is not to be engaged in the fishery, or a part of the fishery.
Sub-Clause 7(1) provides that the person cannot fish in the ASL Zone using gillnet methods unless; an AFMA observer is on board the boat or an approved electronic monitoring system is operating on the boat; unless AFMA authorises otherwise in writing.
Sub-Clause 7(2) provides that if AFMA does not direct an observer to be carried a person to who sub-clause (1) applies must not fish in the ASL Zone unless electronic monitoring equipment is used, unless AFMA authorises otherwise in writing.
Sub-Clause 7(3) provides that gillnets must not be carried on a boat that is authorised to fish using gillnet methods or hook methods in the ASL Zone unless an observer is aboard the boat or electronic monitoring equipment is installed and operated to record all fishing activity, unless AFMA authorises otherwise in writing.
Sub-Clause 7(4) provides that AFMA may direct that an observer be carried even if electronic monitoring equipment is installed and operated.
Sub-Clause 7(5) provides that a person to whom sub-clauses 4(2), (3), (4), (5) or (6) apply must give AFMA at least 72 hours notices of an intention to depart on a fishing trip.
Sub-Clause 7(6) provides that all biological material must be removed from a gillnet before re-setting the net.
Sub-Clause 7(7) provides that processing waste, including offal, must not be discarded while a gillnet is being deployed.