EXPLANATORY STATEMENT
Issued by the Authority of the
Australian Fisheries Management Authority
Fisheries Management Act 1991
Small Pelagic Fishery (Closures) Direction Revocation 2017
The Small Pelagic Fishery (Closures) Direction Revocation 2017 (the Direction) is a legislative instrument for the purposes of the Legislation Act 2003.
Subsection 41A(2) of the Fisheries Management Act 1991 provides, that the Australian Fisheries Management Authority (AFMA) may, after such consultation as set out in s 41A(2), direct that fishing not be engaged in in the fishery, or a particular part of the fishery, during a particular period or periods specified in the direction.
Subsection 41A(3) provides that AFMA may, at any time, by a further direction in writing, vary or revoke a direction given under subsection 41A(2).
The Fishery
The Small Pelagic Fishery (the Fishery) extends from the Queensland/New South Wales border, typically outside 3 nautical miles, around southern Australia to a line at latitude 31° south (near Lancelin, north of Perth). The fishery is currently divided into two sub areas East and West of latitude 146°30’00”.
Management in the Fishery is achieved through output controls in the form of individually transferable quotas with a Total Allowable Catch determined for each quota species for each fishing year. The target species in the Fishery are Australian Sardine, Blue Mackerel, Jack Mackerel and Redbait.
The Direction
This Direction revokes temporal and spatial closure arrangements that were imposed to minimise dolphin mortalities to allow for the implementation of the Small Pelagic Fishery Dolphin Mitigation Strategy (the Strategy).
The Strategy applies to all trawling methods in the Fishery, setting out performance criteria that each individual operator must comply with, through both a maximum interaction rate (number of shots per dolphin interaction) over a six month period, and a maximum interaction cap during a six month review period. If the rate or interaction cap is exceeded, the operator is then subject to escalating management responses.
Regulation Impact Statement
The Office of Best Practice Regulation advised that a Regulation Impact Statement was not required for this Direction consistent with the agreement in place to cover all regulatory changes deemed to be of a minor or machinery nature, (OBPR ID 21976).
Statement of compatibility prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
AFMA assesses under section 9 of the Human Rights (Parliamentary Scrutiny) Act 2011 that this legislative instrument is compatible with human rights. AFMA’s Statement of Compatibility is attached to this explanatory statement.
Consultation
The Authority has undertaken consultation regarding revising arrangements for marine mammals with industry environmental groups, scientists, the Commonwealth Marine Mammal Working Group and the South East Management Advisory Committee. It has also undertaken public consultation on the proposed new arrangements.
If an instrument is varied or revoked under subsection 41A(3) the requirements in subsections 41A(2) relating to consultation and 41A(2A) sending a copy of the direction to each relevant holder of a fishing concession, scientific permit or foreign master fishing licence do not apply. Therefore, the rule-maker considers the consultation undertaken to be appropriate.
Details of the Direction are set out below:
Clause 1 Provides for the Direction to be cited as the Small Pelagic Fishery (Closures) Direction Revocation 2017.
Clause 2 Provides that the Direction commences on the day after it is registered on the Federal Register of Legislation.
Clause 3 Provides that the Direction revokes the Small Pelagic Fishery (Closures) Direction No 1 2015 with effect from the commencement of the Direction.
Overview
The Fisheries Management Act 1991 was enacted to provide for the management of fisheries within Australian waters. The Act was introduced to address the need for comprehensive and sustainable management of marine resources, ensuring that fishing practices are carried out in an environmentally responsible manner. The Australian Fisheries Management Authority (AFMA) is the enacting body responsible for the administration and enforcement of the Act. The policy objective of the Act is to ensure the conservation and sustainable use of fishery resources through effective management practices. The Small Pelagic Fishery (Closures) Direction Revocation 2017, issued by AFMA, revokes the Small Pelagic Fishery (Closures) Direction No 1 2015 to facilitate the implementation of the Small Pelagic Fishery Dolphin Mitigation Strategy. This strategy aims to minimise dolphin mortalities in the fishery by setting performance criteria for operators, including a maximum interaction rate and cap for dolphin interactions over a six-month period. The revocation of the closures allows for the new strategy to be enacted while maintaining consultation with relevant stakeholders.
Scope and Application
The Small Pelagic Fishery (Closures) Direction Revocation 2017 is a legislative instrument under the Fisheries Management Act 1991, which allows the Australian Fisheries Management Authority (AFMA) to revoke specific temporal and spatial closure arrangements within the Small Pelagic Fishery. This Direction applies to the Small Pelagic Fishery, which encompasses waters extending from the Queensland/New South Wales border around southern Australia to a line at latitude 31° south. The fishery is divided into eastern and western sub areas, and it targets species such as Australian Sardine, Blue Mackerel, Jack Mackerel, and Redbait. Management within this fishery is conducted through output controls in the form of individually transferable quotas. The Direction revokes previously imposed closures aimed at minimising dolphin mortalities to facilitate the implementation of the Small Pelagic Fishery Dolphin Mitigation Strategy, which requires all trawling operators to adhere to specific performance criteria. The Direction applies to all relevant fishing activities within the specified fishery area and does not require further consultation as per subsection 41A(3) of the Fisheries Management Act 1991.
Key Provisions
The Small Pelagic Fishery (Closures) Direction Revocation 2017 revokes the Small Pelagic Fishery (Closures) Direction No 1 2015, effective from the date of the Direction's commencement (Clause 3). This legislative instrument is designed to allow the implementation of the Small Pelagic Fishery Dolphin Mitigation Strategy (the Strategy) by lifting temporal and spatial closures that were initially imposed to minimise dolphin mortalities (Explanatory Statement). The Small Pelagic Fishery (Closures) Direction Revocation 2017 operates under the authority granted by subsection 41A(3) of the Fisheries Management Act 1991, which empowers the Australian Fisheries Management Authority (AFMA) to vary or revoke directions that restrict fishing activities in specific fisheries or parts of fisheries (subsection 41A(2)). The revocation of the 2015 Direction allows for the new Dolphin Mitigation Strategy to be implemented without the restrictions that were previously in place.
The obligations imposed by this Direction on the parties or entities it governs include adherence to the Dolphin Mitigation Strategy, which sets out performance criteria that each individual operator must comply with to ensure dolphin safety. Operators must adhere to a maximum interaction rate (number of shots per dolphin interaction) over a six-month period, and a maximum interaction cap during a six-month review period. Failure to comply with these criteria may result in escalating management responses, which could include further restrictions or penalties (Explanatory Statement). Additionally, the operators must ensure that their activities do not exceed the specified interaction rates and caps as outlined in the Strategy to avoid triggering these escalating management responses.
The Direction does not explicitly outline specific offences, penalties, or civil/criminal consequences for breaches of the Dolphin Mitigation Strategy. However, under the Fisheries Management Act 1991, non-compliance with the provisions of the Dolphin Mitigation Strategy or any other regulatory requirements could lead to enforcement actions. These actions may include fines, revocation of fishing permits, or other penalties as determined by AFMA. The exact penalties would be governed by the broader provisions of the Fisheries Management Act 1991 and any other relevant legislation, which may include significant financial penalties and potential criminal sanctions for serious breaches. The Direction's focus on revoking the previous closures to facilitate the implementation of the new Strategy suggests a shift towards a more stringent regulatory approach to dolphin protection within the fishery.