EXPLANATORY STATEMENT
LEGISLATIVE INSTRUMENT
Issued by the Authority of the
Australian Fisheries Management Authority
Fisheries Management Act 1991
Macquarie Island Toothfish Fishery
Macquarie Island Toothfish Fishery Direction No.1 of 2011
The Direction is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Subsection 41A(2) of the Fisheries Management Act 1991 (the Management Act) provides, inter alia, that the Australian Fisheries Management Authority (AFMA) may, after such consultation as set out in subsection 41A(2), direct that fishing is not to be engaged in the fishery, or a particular part of the fishery, during a particular period or periods.
Section 22(5) of the Management Act provides that AFMA may specify a condition to which a fishing right is subject.
This Direction closes the Macquarie Island Toothfish Fishery (MITF) to fishing unless operators use the trawl or longline methods of fishing.
The Fishery
Macquarie Island falls under Tasmanian jurisdiction and is located outside the Antarctic convergence approximately 1500 kilometres south east of Hobart.
The waters surrounding Macquarie Island out to 3 nautical miles are Tasmanian State waters and the Tasmanian Department of Primary Industries, Parks, Water and Environment controls fishing in these waters. State waters were closed to fishing and classified as a Nature Reserve under Tasmanian law in July 2000. Waters from the 3 nautical mile boundary out to the 200 nautical mile outer boundary of the Australian fishing zone (AFZ) are under Commonwealth jurisdiction and fishing in these waters is managed by AFMA under the Management Act .
Patagonian Toothfish (Dissostichus eleginoides) is the only target species in the MITF. Patagonian toothfish is also known as mero, Chilean sea bass and black hake and is found in sub-Antarctic waters on shelves around islands and submarine banks. They are primarily bottom living, in depths of 300 to 2000 metres, although move off the bottom on occasion to feed.
The Direction
Previously, trawling was the only approved fishing method in the MITF. Following a successful trial over four seasons from 2007 to 2010, it was shown that Patagonian Toothfish could be effectively targeted by the longlining method and mitigation methods could be adopted to avoid any interaction with seabirds.
This Direction will allow the use of both trawling and longline fishing methods in the MITF.
Consultation
Subsection 41A(2) of the Management Act provides that, before giving a direction, AFMA must consult the Sub-Antarctic Fisheries Management Advisory Committee (SouthMAC) and consider their views. AFMA may also consider the views of other interested persons.
AFMA consulted with the Sub-Antarctic Resource Assessment Group, SouthMAC and both concession holders in the MITF. All were supportive of the proposal to allow longlining in the MITF. The Department of Sustainability, Environment, Water, Population and Communities (SEWPaC) released a report on the longline trial for public comment and submissions closed on 28 January 2011. Three submissions were received which were then considered by officers from SEWPaC and AFMA.
AFMA is satisfied that the Direction is consistent with the objectives of the Plan; as well as with its obligation to pursue the objectives set out in Section 3 of the Management Act.
Regulation Impact Statement
The Office of Best Practice Regulation (OBPR) advised that a Regulation Impact Statement was not required for this Direction (OBPR ID 12474).
Details of the Direction are set out below:
Clause 1 | Provides for the Direction to be cited as Macquarie Island Toothfish Fishery Direction No.1 of 2011 |
Clause 2 | Provides for the commencement of the Direction. |
Clause 3 | Specifies the period of application of the Direction. |
Clause 4 | Specifies to whom the Direction applies. |
Clause 5 | Provides for the definition of terms used in the Direction. |
Clause 6 | Directs that fishing is not to be engaged in. |
Clause 7 | Provides an exemption to Clause 6 for persons fishing using the longlining and trawling methods. |
Clause 8 | Provides that it is a condition of all fishing concessions to which this Direction applies, that the holder, or a person acting on behalf of the holder, complies with this Direction. |
Clause 9 | Revokes Macquarie Island Toothfish Fishery Direction No.1 of 2006. |
Overview
The Macquarie Island Toothfish Fishery Direction No.1 of 2011 is a legislative instrument issued by the Australian Fisheries Management Authority (AFMA) under the Fisheries Management Act 1991. This Direction addresses the need to regulate the fishing methods used in the Macquarie Island Toothfish Fishery (MITF) to ensure sustainable management and conservation of the Patagonian Toothfish, also known as the Chilean sea bass. The Direction aims to provide flexibility in fishing practices by allowing both trawling and longlining methods, which were previously restricted to trawling only. This change follows a successful trial period that demonstrated the effectiveness of longlining with appropriate mitigation measures to protect seabird populations.
The enactment of this Direction is in line with AFMA's obligation to consult with relevant advisory committees, including the Sub-Antarctic Fisheries Management Advisory Committee (SouthMAC), and to consider their views, as mandated by the Management Act. The decision to allow longlining was supported by all consulted parties, and the Direction seeks to implement a sustainable fishing practice while maintaining the integrity of the fishery. The Direction also revokes the previous Macquarie Island Toothfish Fishery Direction No.1 of 2006, ensuring that only the current regulations are in effect.
Scope and Application
The Macquarie Island Toothfish Fishery Direction No. 1 of 2011 applies to all entities engaged in fishing activities within the Macquarie Island Toothfish Fishery (MITF), specifically targeting Patagonian toothfish, also known as mero, Chilean sea bass, and black hake. This legislation, issued by the Australian Fisheries Management Authority (AFMA) under the Fisheries Management Act 1991, governs fishing operations within the Commonwealth fishing zone surrounding Macquarie Island, extending from three nautical miles beyond the island's territorial waters to the 200 nautical mile outer boundary of the Australian fishing zone. The Direction mandates that fishing activities are only permissible if conducted using either trawling or longlining methods. AFMA consulted with relevant stakeholders, including the Sub-Antarctic Fisheries Management Advisory Committee and the Sub-Antarctic Resource Assessment Group, who supported the introduction of longlining in the fishery following successful trials. The Direction also incorporates provisions to ensure compliance by all fishing concession holders and revokes the previous 2006 Direction concerning the fishery.
Key Provisions
The Macquarie Island Toothfish Fishery Direction No.1 of 2011 (hereafter referred to as the Direction) primarily addresses the methods by which fishing may be conducted in the Macquarie Island Toothfish Fishery (MITF). Under Clause 6 of the Direction, fishing activities are generally prohibited unless conducted using specific methods as outlined in Clause 7. This means that unless a fisher is using either trawling or longlining methods, they are not permitted to fish within the MITF. These methods were chosen based on successful trials and the implementation of mitigation measures to prevent interactions with seabirds. The Direction also specifies the duration and applicability of these restrictions (Clauses 3 and 4) and provides definitions for key terms used throughout (Clause 5). Additionally, Clause 8 mandates that all fishing concession holders must comply with this Direction as a condition of their concession.
The obligations imposed on the parties governed by this Direction are significant. Fishing concession holders within the MITF must adhere to the specified methods of fishing, which are trawling and longlining, to remain compliant with the Direction. They must ensure that any fishing activities are conducted in strict accordance with these methods and avoid any practices that fall outside these approved techniques. This obligation extends to all persons acting on behalf of the concession holders, ensuring a comprehensive scope of compliance. Additionally, the Direction requires concession holders to be aware of and comply with all conditions attached to their fishing rights, as specified in Clause 8.
Failure to comply with the Macquarie Island Toothfish Fishery Direction No.1 of 2011 can result in serious consequences. Although the Direction itself does not explicitly outline specific offences, penalties, or civil/criminal consequences, violations of fishing regulations under the Fisheries Management Act 1991 (the Management Act) can lead to enforcement actions. The Management Act provides for substantial penalties, including fines and potential imprisonment, for breaches of fishing regulations. For instance, under Section 41 of the Management Act, AFMA may impose fines for non-compliance, and more severe penalties can be applied if the offence is repeated or if it involves significant harm to the fishery. Therefore, fishers must take the Direction seriously to avoid facing such penalties.