Explanatory Statement
Fisheries Management Act 1991
Fisheries Management (Southern and Eastern Scalefish and Shark Fishery Management Plan 2003) Temporary Order 2012 No.1.
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 circumstances where urgent action is required for purposes related to the management of a fishery. Subsection 43 (6) of the Management Act provides for the Authority to make one further temporary Order the same in substance as a previous order while the previous order is in force. 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.
Closures also serve to place restrictions on effort to protect spawning grounds, minimise impact on deepwater species, facilitate the recovery of certain species and protect threatened and endangered species.
Background to the Temporary Order
In response to increases in reports of dolphin mortalities in waters adjacent to South Australia from gillnet fishing, the Authority made the Fisheries Management (Southern and Eastern Scalefish and Shark Fishery Management Plan 2003) Temporary Order 2011 No. 2 (the first dolphin Order), which commenced on 23 September 2011. The Order closed an area of the Gillnet Hook and Trap Sector of the fishery off South Australia to gillnetting, established a zone adjacent to the closed area with mandatory monitoring while fishing with gillnets, and allowed for the use of hooks by affected gillnet concession holders in both the closed area and monitoring zone.
In the 12 months leading up to the making of the first dolphin Order in September 2011, there was a significant increase in the reporting of dolphin mortalities caused by gillnet fishing in the Gillnet Hook and Trap Sector of the fishery.
Numbers of dolphin deaths recorded in the preceding years were minimal. However, in the 12 months prior to the registration of the first dolphin Order, the number of reported dolphin deaths rose sharply to 47.
The increased reporting was coincidental with increased monitoring in this Sector of the fishery. In July 2011 the Authority increased monitoring and observer coverage in the Gillnet Hook and Trap Sector.
The Authority’s Management had also written to Gillnet Hook and Trap Sector concession holders in March 2011 reminding them of their obligation to report interactions with Threatened, Endangered and Protected species (as listed under the Environment Protection and Biodiversity Conservation Act 1999), particularly dolphins.
Prior to making the above referenced temporary Order (the first dolphin Order), in May 2011 the Authority put in place the Fisheries Management (Southern and Eastern Scalefish and Shark Fishery Management Plan 2003) Temporary Order 2011 (the sea lions Order). The sea lions Order contained measures to protect Australian Sea Lions in areas of the Gillnet Hook and Trap Sector from gillnet fishing. The Order closed areas of the fishery to fishing by gillnets, allowed eligible persons to fish in those and broader areas using hook methods (which do not pose a threat to Australian Sea Lions, or dolphins), and imposed mandatory 100% observer/electronic monitoring requirements in the Australian Sea Lion Management Zone if gillnet methods were to be used.
The Australian Sea Lion Management Zone includes much of the area where recent dolphin interactions have been reported. The Authority considers the sharp increase in these reports is likely to be a consequence of the increased monitoring, as well as of greater awareness by fishing concession holders of their reporting obligations.
The Authority assessed that some gillnet boats had not been accurately reporting interactions with protected species in the past, and that the actual mortality of dolphins and other protected species (such as birds and sea lions) was likely to be significantly greater than the mortalities being reported.
The Authority considers the threat to dolphins from interactions with gillnets in the area of water closed under the first dolphin Order is enough to warrant the continuation of the closure under this temporary Order. The Authority considers that given the current conditions, dolphin mortalities would continue in this area if it was reopened which is inconsistent with the Authority’s legislative objective that requires it to have regard to the protection of cetaceans. Substantial outflow from the Murray River continues at present, which was one of the suggested causative factors for the increase in dolphin mortalities. Additional dolphin mortalities across the rest of the fishery, including in the Dolphin Observation Zone further suggest that dolphin interaction would re-occur in this area if reopened.
This temporary Order extends the measures contained in the first dolphin Order for a further six months.
This temporary Order is consistent with the Authority’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 (Part 1 paragraph 3(1)(b) of the Management Act).
In pursuing its objectives the Authority is required to ensure that, as far as is practicable, the measures adopted are not inconsistent with the preservation, conservation and protection of all species of whales, which is defined to include dolphins (subsection 3(2) of the Management Act).
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 that does not pose a threat to dolphins, the action is also consistent with the Authority’s further objective of maximising the net economic returns to the Australian community from the management of Australian fisheries (Part 1 Section 3(1)(c) of the Management Act).
The measures imposed by this temporary Order commence on 23 March 2012, immediately prior to the expiry of the first dolphin Order. In view of the urgency, and the need to ensure that the current measures to protect dolphins are maintained, the Authority considered that no other action was appropriate. Once the measures are in place, the Authority 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
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.
Since the increase in the reporting of interactions with dolphins, and dolphin mortalities during gillnet fishing, the Authority has consulted with industry, environment groups and scientists, including through the Shark Resource Assessment Group and South East Management Advisory Committee. The Shark Resource Assessment Group comprises scientists, experts, industry and the Authority’s representatives and provides scientific advice to the Authority and the Authority’s Commission. The South East Management Advisory Committee (the Committee) is established under s56 of the Fisheries Administration Act 1991 to assist the Authority in the performance of its functions, in respect of the fishery. It is comprised of the Authority’s, industry, scientific, recreational fishery, conservation, and State members.
The Authority consulted with the Committee on the proposed continuation of the closure and other measures during 8-13 March 2012. The Committee was unable to provide consensus support for the prohibition of gillnet fishing in the area of high interactions, although the majority of the Committee noted the proposal was in accordance with the Authority’s legislative objectives.
The Authority will continue to consult with the Committee, the Shark Resource Assessment Group, industry members and other stakeholders, in developing long term strategies to achieve the objectives of these measures.
Regulation Impact Statement
A Regulatory Impact Statement (RIS) has been prepared and approved by the Office of Best Practice Regulation (OBPR ID 13058).
Statement of compatibility prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
The Authority assesses under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 that this legislative instrument is compatible with human rights. The Authority’s Statement of Compatibility is attached as a supporting document.
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 Dolphin Observation Zone, defined in Schedule 2 to the Order.
Operators fishing in the Dolphin Observation Zone must carry an observer, or have a working camera system fitted to the boat, referred to in the Order as an AFMA approved electronic monitoring system, 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 to protect dolphins.
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 the Dolphin Gillnet Closure, defined in Schedule 1 to the Order. This is the area in which most of the dolphin mortalities have occurred. [Gillnet statutory fishing rights are granted under the Management Plan and give access to Commonwealth waters. South Australian Coastal Waters permits are granted under section 32 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 Dolphin Gillnet Closure and Dolphin Observation Zone.
The Order authorises the holders of gillnet boat statutory fishing rights and those South Australian coastal waters permits affected by the above measures, and who have a recent history of fishing in the Dolphin Gillnet Closure, to fish using hook methods in the Dolphin Gillnet Closure and the Dolphin Observation Zone. Hook methods do not pose a threat to dolphins.
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 dolphins and other non-target species. The Order therefore prohibits the discharge of processing waste from boats while gillnets are being set.
Annexed to this Statement is a map showing the areas subject to the sea lions Order and the first dolphin Order (on the map, ‘ASL’ means Australian Sea Lions) and the areas subject to this Order.
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 2012 No. 1.
Clause 2 provides that the Order commences on 23 March 2012.
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-clause 4(3) applies to the holder of a gillnet boat SFR if the holder fished between 1 May 2009 and 30 June 2011 in the fishery under the authority of that right and had deployed more than 25% total effort in the Dolphin Gillnet Closure; or AFMA determines in exceptional circumstances, where the 25% requirement is not met, that sub-clause 4(3) applies.
Sub-clause 4(2) provides that sub-clauses 4(5) and (6) apply to the holder of a South Australian Coastal Waters permit if the holder fished between 1 May 2009 and 30 June 2011 in the fishery under the authority of that permit and had deployed more than 25% total effort in the Dolphin Gillnet Closure; or AFMA determines in exceptional circumstances, where the 25% requirement is not met, that sub-clauses 4(5) and (6) apply.
Sub-clause 4(3) provides that the gillnet boat statutory fishing right referred to in sub-clause 4(1) authorises the holder to fish in the Dolphin Gillnet Closure using hook methods only, and to fish in the Dolphin Observation Zone using either hook methods or gillnets.
Sub-clause 4(4) provides that a gillnet boat statutory fishing right held by a person to whom subclause 4(3) does not apply authorises the holder to fish in any part of the Commonwealth Gillnet Sector that is not in the Dolphin Gillnet Closure, using gillnet methods only.
Sub-clause 4(5), paragraph (a) provides that a fishing permit to which the sub-clause applies (by virtue of sub-clause 4(2)), 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 Dolphin Gillnet Closure, and authorises the use of gillnet methods or hooks in the Dolphin Observation Zone.
Sub-clause 4(5), paragraph (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 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(6) provides that a fishing permit to which the sub-clause applies (by virtue of sub-clause 4(2)) 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 that part of the Sector that is within the Dolphin Gillnet Closure.
Sub-Clause 4(7) provides that a South Australian Coastal Waters permit to which sub-clauses 4(5) and 4(6) do not apply, authorises the use of gillnet methods only in that part of the South Australian Coastal Waters Sector that is not within the Dolphin Gillnet Closure.
Clause 5 provides that if a person transfers a gillnet boat statutory fishing right or a fishing permit referred to in sub-clauses 4(3) or 4(5) 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 a person cannot fish in the Dolphin Observation Zone 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 using gillnet methods in the Dolphin Observation 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 Dolphin Observation Zone unless an observer is on board 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(3), (4), (5), (6) or (7) apply must give AFMA at least 72 hours notices of an intention to depart on a fishing trip; ensure that the boat does not leave port until AFMA has given notification as to whether it directs that an observer be carried; and if the boat is equipped with electronic monitoring equipment, the specified requirements to ensure the equipment is functioning properly have been met.
Sub-Clause 7(6) provides that a holder must ensure that, if a boat is equipped with electronic monitoring equipment, the equipment is working at all times the boat is operating within an area of waters to which the Order applies, unless AFMA authorises otherwise in writing.
Sub-Clause 7(7) provides that all biological material must be removed from a gillnet before re-setting the net.
Sub-Clause 7(8) provides that processing waste, including offal, must not be discarded while a gillnet is being deployed.