EXPLANATORY STATEMENT

LEGISLATIVE INSTRUMENT

Issued by the Authority of the Managing Director

of the Australian Fisheries Management Authority

Fisheries Management Act 1991

Northern Prawn Fishery Management Plan 1995

Direction No. NPFD 106

Byproduct Limits

The Direction is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

Subsection 17(5A) of the Fisheries Management Act 1991 (the Management Act) provides, inter alia, that a plan of management made under the Management Act may provide for the Australian Fisheries Management Authority (AFMA), after such consultation as set out in the plan of management, to direct that fishing is not to be engaged in in the fishery, or a particular part of the fishery, during a particular period or periods.

Subsection 17(5B) of the Management Act provides that a direction under Subsection 17(5A) in relation to a particular part of the fishery may identify the part concerned in any way or ways, including by reference to a particular area, a particular species or type of fish, a particular kind or quantity of fishing equipment, a particular method of fishing, or any combination of the above.

Subsection 25(3) of the Plan provides that, before AFMA issues a direction, it must consult with the Northern Prawn Fishery Management Advisory Committee (NORMAC) about the content of the direction unless the direction is issued in circumstances of an emergency.

The Fishery

The fishery extends from the northern coast of Western Australia, the coast of the Northern Territory and the coast of Queensland in the Gulf of Carpentaria, to the outer limit of the Australian fishing zone.  The fishery is for prawns and 4 major ecologically related species (namely squid, scampi, bugs and scallops).  There are 2 fishing seasons in the fishery, bounded by closures.   The area of the fishery overlaps the areas of a number of fisheries for other species that are managed by the States and the Territory.

The fishery is managed by limiting the amount of fishing effort that is employed by the persons permitted by the Plan to fish in the fishery (operators).  These limitations are known generically as input controls and are used in the fishery to address both biological and economic objectives for the fishery.   The specific types of inputs that are controlled in the fishery are the amount of fishing time (limited by closures of all or parts of the fishery), the amounts and types of fishing equipment, the number of boats in the fishery and the specifications of those boats.

Direction No. NPFD 106 makes provision for operators to retain quantities of certain fish and crustacean species that are caught incidentally (byproduct) while prawn trawling. A Memoranda of Understanding (MOU) between the Commonwealth and Queensland, and the Commonwealth and the Northern Territory, oblige AFMA to enforce trip limits for these species within the NPF. A conversion factor is stipulated in the Direction to 1) give operators maximum flexibility for processing fish by allowing fishers to retain any combination of fillets, whole fish, gilled and gutted fish and headed and gutted fish, and 2) enable operators and compliance personnel to observe and enforce the trip limit, irrespective of how the fish have been processed.

This Direction has been in place since 2004 under the title ‘Bycatch Limits’. With current emphasis on reducing bycatch in Commonwealth fisheries it was felt that the title of bycatch limits was misleading. The Commonwealth Policy on Fisheries Bycatch describes bycatch as the part of the catch which is returned to the sea either because it has no commercial value or because regulations preclude it being retained, and the part of the catch that does not reach the deck of the fishing vessel but is affected by interactions with the fishing gear. However, byproduct can be defined as that part of the catch that is caught incidentally (a non-target species) and is retained for commercial value or consumption on board the vessel.

Direction No. NPFD 106 replaces Direction No. NPFD 82 and has the effect of changing the dates in which gear trials can take place to align them with the revised dates for the fishing season.

Regulation Impact Statement

The Office of Best Practice Regulation has advised that a Regulation Impact Statement is not mandatory on the basis that the Direction is of a minor or machinery nature and does not substantially alter existing arrangements (ID 9044).

Consultation

AFMA consulted with the Northern Prawn Fisheries Management Advisory Committee (NORMAC) prior to making the Direction and NORMAC supports the making of the Direction.

The Act does not specify any condition as needing to be met before the power to make the Direction may be exercised.

Details of the Direction are set out below:

Clause 1 Clause 1 provides for the determination to be cited as Direction No. NPFD 106.

Clause 2 Clause 2 provides for the commencement of the Direction.

Clause 3 Clause 3 states to whom the Direction applies.

Clause 4 Clause 4 sets out the period of application of this Direction.

Clause 5 Clause 5 provides for the interpretation of the Direction.  In particular, the section defines the items to which the prohibitions apply and the measurement of time for the purposes of the Direction and also adopts defined terms used in the Plan and the Act.  The note indicates that terms defined in the Management Act and the Plan have the same meaning in the Direction.

Clause 6 Clause 6 prohibits a person from retaining more than one kilogram per trip of the species described in Part 1 of the Schedule.

Clause 7 Clause 7 provides for an exemption to clause 6 if a cumulative total of 550 kilograms (whole weight) of the described species are taken per trip between 1 March and 30 June or 55 kilograms during any other period of that year, and if   processed the whole weight is determined by the described conversion factor.

Clause 8 Clause 8 prohibits retaining more than 10 individual fish per trip of the species described in Part 2 of the Schedule.

Clause 9 Clause 9 prohibits retaining more than 10 mudcrabs (Scyalla sp) per trip.

Clause 10 Clause 10 prohibits retaining more than 6 rock lobsters (Panulirus ornatus) per trip.

Clause 11 Clause 11 provides for presumptions of when any fish on board were taken.

Clause 12 Clause 12 provides for an exemption to clauses 6, 8, 9 and 10  for persons who fish in accordance with another plan of management in force under the Management Act or State or Territory law applying in the area of the fishery,

Clause 13 Clause 13 revokes Direction No. NPFD 82.

The Schedule describes the fish species that may be retained under this Direction.

NPFD 106