EXPLANATORY STATEMENT
Issued by the Authority of the Managing Director
of the Australian Fisheries Management Authority
Fisheries Management Act 1991
Southern and Eastern Scalefish and Shark Fishery Management Plan 2003
SESSF Direction No. 03
Subsection 17(5A) of the Fisheries Management Act 1991 (the Management Act) provides that a plan of management made under the Management Act may provide for the Australian Fisheries Management Authority (AFMA), after such consultation (if any) as are set out in the plan of management, to direct that fishing is not to be engaged in the fishery, or a particular part of the fishery, during a particular period or periods.
Subsection 17(5B) of the Management Act provides for a direction to be made under paragraph (5A)(a) in relation to a part of a 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 33(3) of the Acts Interpretation Act 1901 provides, among other things, that where an Act confers power to make an instrument the power shall, unless the contrary intention appears, be construed as including a power, exercisable in like manner, to revoke the instrument. No such contrary intention appears in the Management Act.
Subsection 56(1) of the Southern and Eastern Scalefish and Shark Management Plan 2003 (SESSF Plan) provides that AFMA may direct that fishing is not to be engaged in the fishery, or a part of the fishery, during a particular period or periods.
Subsection 56(2) of the SESSF Plan provides that, before AFMA issues a direction, it must consult and consider the views of, each relevant management advisory committee about the content of the direction unless the direction is issued in circumstances of an emergency.
Section 92 of the Fisheries Administration Act 1991 provides for AFMA to delegate its powers and functions to, among others, the Managing Director of AFMA. Subsection 17 (11) of the Management Act permits AFMA to delegate its powers to make directions (among other things) only to the Managing Director. AFMA has delegated its power to make directions under the SESSF Plan to the Managing Director.
Background
Historically, there have been two participants in the freezer/processing sector of the Commonwealth Trawl Fishery. These concession holders have, in consultation with AFMA and the Department of Environment and Heritage (DEH), developed stringent operational procedures to reduce fur seal interactions and to contribute to seal research. A third concession holder fished in 2003 and adopted similar operating procedures to those followed by the other two participants.
The Minister for Environment and Heritage accredited the SESSF Plan on 19 December 2003. Therefore any operator that interacts with a protected species as listed in Part 13 of the Environment Protection and Biodiversity Conservation Act 1999 (including Australian fur seals and New Zealand fur seals), and is acting in accordance with the SESSF Plan, will not commit an offence if their operations are consistent with the SESSF Plan.
In the past, trialling and adopting Seal Excluder Devices (SEDs) has been a focus of the larger factory vessels operating in the winter blue grenadier freezer/processing sector. The development and trial of mitigation measures on the smaller non-factory ‘wet boats’ operating in the sector is currently in a premature stage.
Purpose of the Direction
AFMA acknowledges that it is important that future operations in the freezer/processing sector are conducted in a responsible manner and that fishers contribute to investigation of ways to further reduce fur seal interactions.
The purpose of the Direction is to apply specific conditions to the freezer/processing vessels operating in the Commonwealth Trawl Sector of the Southern and Eastern Scalefish and Shark Fishery. This is an annual occurrence and prior to the introduction of the SESSF Plan, AFMA amended permit conditions to allow vessels to operate in the freezer/processing sector of the fishery.
However, now that the fishery operates under the SESSF Plan, it would require a blanket amendment to all Commonwealth Trawl Sector (CTS) Statutory Fishing Right conditions. As there are only a limited number of vessels (3) that will be operating and therefore require the additional conditions which include the use of gear technology modifications through SEDs, AFMA intends to make a direction as this is the most expedient mechanism to apply the conditions in the management of the fishery.
All SFR holders involved in the fishery are fully supportive of the requirements and the making of a direction to permit them to fish with the additional requirements.
Consultation
On the 23rd of May 2005 a letter was sent to all CTS concession holders seeking notification of those intending to participate in the processing freezer/processing sector of the fishery. The approved management policy for the freezer/processing sector in the South East Trawl Fishery which was developed in consultation with SETMAC was also sent to all CTS concession holders.
On the 8th of June 2005 AFMA wrote to the Office of Regulatory Review (ORR) seeking advice on whether a Regulation Impact Statement (RIS) was required for this direction. A RIS exception was advised (ID 7334) due to the proposal being of a minor or machinery nature and does not substantially alter existing arrangements.
Details of the Direction are set out below:
Clause 1 provides for the Direction to be cited as SESSF Direction Freezer/Processing Sector of the Commonwealth Trawl Sector
Clause 2 provides for the commencement of the Direction.
Clause 3 states to whom the Direction applies.
Clause 4 sets out the period of application of this Direction.
Clause 5 defines certain terms used in the Direction and provides that terms used in the Direction that are defined for the purposes of the SESSF Plan have the same meanings as they have in the SESSF Plan. The note indicates that terms defined in the Management Act have the same meaning in the Direction.
Clause 6 states the prohibited area of fishing using a vessel with mid-water trawl equipment that has the capacity to process and freeze catch (a factory vessel).
Clause 7 provides for an exemption for persons who fish in the prohibited area using a factory vessel if they adopt the specified Seal Excluder Device within their fishing operation and undertake the outlined reporting procedure if a seal is captured during fishing.
Clause 8 states that SESSF Direction No. 02 of 15 June 2005 is revoked, with effect from commencement of SESSF Direction No. 03.