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, Pink Ling) Temporary Order 2015 No. 1
Section 43 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. An Order can be made if the Authority is satisfied that:
a) it is necessary to take action for the purpose of [managing a fishery];
b) the action contemplated is consistent with [the Authority’s] objectives; and
c) no other action is appropriate.
Pursuant to subsection 92(1) of the Fisheries Administration Act 1991 (the Administration Act), the Authority has delegated the powers and functions under section 43 of the Management Act to the Chief Executive Officer of the Authority.
By virtue of subsection 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.
A Temporary Order is a disallowable instrument for the purposes of the Legislative Instruments Act 2003.
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 (the Plan), in force under section 17 of the Management Act, mainly through output controls in the form of Total Allowable Catch (TAC) 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
Pink Ling (Genypterus blacodes) is a quota species under the Plan and the closures are required to constrain catches of Pink Ling in the eastern zone. The Order temporarily closes three areas of the Fishery to all methods of fishing until 30 April 2015.
Pink Ling is assessed as two separate stocks; east and west of Longitude 147° East. Although they are assessed as separate stocks the species is currently managed under a global TAC.
An updated stock assessment was accepted by the Slope Resource Assessment Group (SlopeRAG) in November 2013 and indicated the current status of the eastern Pink Ling stock is 25% of unfished biomass (below the target reference point), while the western stock is at 58% of unfished biomass.
The AFMA Commission, at its meeting on 24 and 25 February 2014, agreed with the AFMA Management recommendation of a combined east and west TAC of 996 tonnes for 2014/15, with alternative controls to restrict catches in the east to below 349 tonnes to allow the eastern stock to rebuild to target levels.
AFMA Management manages eastern zone Pink Ling by applying a 250 kg daily allowance for the eastern zone of the fishery with a catch target of 349 tonnes. The aim of the daily limit is to constrain total fishing mortality of Pink Ling in the eastern zone to less than 400 tonnes. Total fishing mortality in this context includes discards and state catches.
Commission advice in April 2014 was that if catches approach the eastern limit of 349 tonnes, AFMA may need to implement spatial closures for Pink Ling. When setting the 349 tonnes target, AFMA foreshadowed the potential for closures and reduction of the daily limit should catches be trending above the target.
Recorded eastern Pink Ling catch has now reached this level and without further reductions in catch will “overshoot” the 350 tonnes target. The Temporary Order implements the following measures to further restrict eastern Pink Ling catches:
- the closure of eastern Pink Ling grounds at Maria Island, Seiner’s Horseshoe and Everard Horseshoe
- a reduction in the daily allowable catch of eastern Pink Ling from 250 kg per day to 50 kg per day.
The Temporary Order applies to all concession holders in the SESSF unless there is an existing Concession condition restricting total Pink Ling catches in the eastern zone of the fishery to no more than 25% of total quota holdings. The Temporary Order is not intended to apply to those concession holders because their current concessions make a larger commitment to restricting catches than the measures in the Temporary Order.
Maria Island, Seiner’s Horseshoe and Everard Horseshoe are located within the Commonwealth Southern and Eastern Scalefish and Shark Fishery (SESSF) and have been identified by industry as being major areas for Pink Ling. Since 2005 closure of these areas have been implemented by a mixture of voluntary and legislated measures to protect stocks of Pink Ling, reduce catches and prevent overfishing of the eastern Pink Ling population.
Implementation of closures will impact on the trawl and long line sectors in the short term. However, failure to reduce catches and improve recruitment may delay stock rebuilding which is essential to maximise long term economic returns. The Order is consistent with the Authority’s legislative objectives of ensuring exploitation of Pink Ling stocks are conducted in a manner consistent with the principles of ecologically sustainable development and long term sustainability.
The Authority is satisfied that, because of the urgent nature of the matter to be addressed by the Order (i.e. the need to quickly constrain eastern zone Pink Ling catches) there is no other appropriate action than the making of a Temporary Order.
The measures imposed by this Temporary Order commence on the day after registration on the Federal Register of Legislative Instruments and remain in force until 1 May 2015.
Consultation
Section 43 of the Management Act does not require the Authority to consult with the relevant Management Advisory Committee or provide any set period of notice prior to making a Temporary Order.
Section 17 of the Legislative Instruments Act 2003 requires the relevant rule-maker to be satisfied that appropriate and reasonably practicable consultation has taken place, where a legislative instrument will, relevantly, have a direct, or a substantial indirect, effect on business. Section 18 of the Legislative Instruments Act 2003 provides that consultation may be unnecessary or inappropriate where enactment of the instrument is required as a matter of urgency, or the instrument is of a minor or machinery nature and does not substantially alter existing arrangements.
The enactment of this Temporary Order is a matter of urgency. Indeed ‘urgency’ is a precondition for the making of a Temporary Order under section 43 of the Management Act. Consequently, broad consultation would have been inappropriate as per subsection 18(2)(b) of the Legislative Instruments Act 2003. However, despite this the trawl industry, through the South East Trawl Fishing Industry Association (SETFIA) and affected operators have been consulted in the development of these arrangements to constrain eastern Pink Ling catches.
When originally setting the 349 tonnes target, AFMA foreshadowed the potential for closures and reduction of the daily limit should catches be trending above the target. In addition, a letter was sent to all SESSF concession holders from the AFMA CEO notifying them that closures and further catch restrictions would be put into place if eastern catch triggers were exceeded.
SEMAC and SETFIA will be kept informed as the process progresses.
Regulation Impact Statement
The Office of Best Practice Regulation advised that a Regulation Impact Statement was not required for this Direction (OBPR ID 1844).
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
Details of the Order are set out below:
Clause 1 provides for the Order to be cited as the Fisheries Management (Southern and Eastern Scalefish and Shark Fishery, Pink Ling) Temporary Order 2015 No. 1.
Clause 2 provides that the Order commences on the day after registration on the Federal Register of Legislative Instruments and that it ceases on 1 May 2015, the day after the end of the fishing season in the relevant area.
Clause 3 defines the terms used in the Order including the area of the Eastern Pink Ling Zone.
Clause 4 provides that a concession holder must not take more than 50 kilograms of Pink Ling per day. This clause overrides any inconsistent provision in a plan of management or fishing concession.
Clause 5 exempts certain concession holders from the 50 kilogram daily catch allowance. Exempted concession holders have previously entered into an agreement with AFMA to not take more than 25% of their caught and uncaught Pink Ling quota from the Eastern Pink Ling Zone
Clause 6 provides that fishing not take place in certain areas of the fishery by any method. The proscribed areas are specified in Schedule 1 of the Order.
Schedule 1 defines the geographic coordinates of the areas proscribed for the purpose of Clause 6. Those areas are Maria Island, Seiner’s Horseshoe and Everard Horseshoe.