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. 07
The purpose of the SESSF Direction No. 07 is to apply scientific conditions to freezer/processing vessels operating in the Commonwealth South East Trawl Sector (CSETS) of the Southern and Eastern Scalefish and Shark Fishery (the SESSF).
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 consultations (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 that a direction made under paragraph 17(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 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 given in 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 provides that AFMA may delegate any powers conferred on it under a Plan of Management in accordance with paragraph 17(5A)(a) (and other provisions) only to the Managing Director. AFMA has delegated its powers to make directions under sections 9, 11, 15, 19, 21, 22, 23 and 56 of the SESSF Plan to the Managing Director.
Background
Historically, there have been a maximum of three participants in the freezer/processing sector of the Commonwealth South East Trawl Fishery. These concession holders have, in consultation with AFMA and the Department of Environment and Water Resources, developed stringent operational procedures to reduce fur seal interactions and to contribute to seal research.
The Minister for Environment and Heritage accredited the SESSF Plan on 19 December 2003. Thereafter 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), will not commit an offence if their operations comply with the SESSF Plan.
In the past, trialling and adopting Seal Excluder Devices (SEDs) has been the focus of the larger factory vessels operating in the winter blue grenadier freezer/processing sector. Development and trialling of mitigation measures on the smaller non-factory ‘wet boats’ operating in the sector is ongoing.
Objectives
The Direction is in pursuit of AFMA’s objectives and in particular ensuring that the exploitation of fisheries resources is conducted in accordance with the principles of ecologically sustainable development and has regard to the impact of fishing activities on non-target species. Further, the Direction implements measures required by the Ministerial Direction (S234, 20 December 2005) to the extend that it requires AFMA to implement measures to manage the broader environmental impacts of fishing, including minimising the levels of interactions with threatened or protected species under the Environmental Protection and Biodiversity Conservation Act 1999.
AFMA acknowledges the importance of future operations in the freezer/processing sector being conducted in a responsible manner and for fishers to contribute to the investigation of methods to further reduce fur seal interactions.
Prior to the introduction of the SESSF Plan, fishers operated within the Commonwealth South East Trawl Sector (CSETS) of the Southern and Eastern Scalefish and Shark Fishery (SESSF) under fishing permits in accordance with section 32 of the Management Act. AFMA would amend the permit conditions to allow freezer/processing vessels to operate within the CSETS of the SESSF during the winter blue grenadier fishing season.
The SESSF Plan now allocates Statutory Fishing Rights (SFR’s) which authorise fishers to operate within the CSETS of the SESSF.
A direction is required as the freezer/processing vessels fishing under SFR’s within the CSETS of the SESSF are affected by the mandatory gear technology modifications which incorporate the use of SEDs. This is the most expedient mechanism to apply the conditions in the management of the fishery.
All Statutory Fishing Right holders involved in the fishery are fully supportive of the new requirements and with the making of a direction to permit them to fish with the additional requirements.
Consultation
AFMA consulted with SETMAC at its meeting on 29 March 2007. SETMAC agreed to a change in permit conditions in the blue grenadier winter fishery for processor vessels to include a requirement for SEDs to be used with either pelagic or demersal trawling.
AFMA has also received support for the amendments from the participants in the freezing/processing sector of the CSETS.
Regulation Impact Statement
Office of Best Practice Regulation issued a RIS exception (OBPR ID 7334) due to the proposal being of a minor or machinery nature that does not substantially alter existing arrangements.
Determination
Details of the Direction are set out below:
Paragraph 1
Paragraph 1 provides for the Direction to be cited as SESSF Direction No. 07.
Paragraph 2
Paragraph 2 provides that the Direction commences on the day after it is registered on the Federal Register of Legislative Instruments.
Paragraph 3
Paragraph 3 states the persons to whom the Direction applies.
Paragraph 4
Paragraph 4 sets out the period of application of this Direction.
Paragraph 5
Paragraph 5 defines particular terms used in the Direction. It also states that terms used in the Direction that are defined in the SESSF Plan have the same meaning as they have in the SESSF Plan. (The notes refer to the fact that terms defined in the Management Act have the same meaning in the Direction).
Paragraph 6
Paragraph 6 specifies the prohibited area within the Commonwealth South East Trawl Sector for fishing that uses a vessel that has the capacity to process and freeze catch (a factory vessel).
Paragraph 7
Paragraph 7 provides an exemption for persons who fish in the prohibited area within the Commonwealth South East Trawl Sector using a factory vessel, provided they adopt the specified SED within their fishing operation and undertake the outlined reporting procedure if a seal is captured during fishing.
Paragraph 8
Paragraph 8 provides that SESSF Direction No 3 is revoked from commencement of this Direction.