Small Pelagic Fishery (Closures Variation) Direction No. 1 2015

EXPLANATORY STATEMENT

Issued by the Authority of the

Australian Fisheries Management Authority

Fisheries Management Act 1991

Small Pelagic Fishery (Closures Variation) Direction No. 1 2015

Subsection 41A(2) of the Fisheries Management Act 1991 (the Management Act) provides that the Australian Fisheries Management Authority (AFMA) may, after such consultation as set out in s41A(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. Subsection 41A(3) of the Management Act provides that AFMA may, at any time, by a further direction in writing, vary or revoke a direction given under subsection (2).  A direction given under subsection 41A(3) of the Management Act is not subject to the notification requirements under section 41A(2) and 41A(2A).  Pursuant to subsection 41A(4) of the Management Act, if AFMA varies a direction given under subsection 41A(2) it must ensure a copy of the direction given under subsection (3) is sent to the holder of a fishing concession in respect of the fishery as soon as practicable.  

The Small Pelagic Fishery (Closures Variation) Direction No. 1 2015 (the Direction) is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

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. 

Background to Direction

AFMA is established under the Fisheries Administration Act 1991 (FA Act) and the objectives that it must pursue are contained in section 3 of the Management Act and section 6 of the FA Act.  Under section 3 of the Management Act, AFMA must ensure that the exploitation of fisheries resources and the carrying on of any related activities are conducted in a manner consistent with the principles of ecologically sustainable development (which includes the exercise of the precautionary principle), in particular the need to have regard to the impact of fishing activities on non-target species and the long term sustainability of the marine environment. In addition AFMA must ensure, as far as practical, that measures adopted in pursuit of its objectives must not be inconsistent with the preservation, conservation and protection of all species of cetaceans, which includes dolphins.

In two trips since 19 April 2015, eight common dolphin mortalities were reported by operators using the mid-water trawl fishing method at night in the Fishery. AFMA considered that this rate of dolphin mortality occurring in the Fishery was unacceptable and urgent action was required to prevent further deaths. As a result, the Small Pelagic Fishery (Closures) Direction No. 1 2015 (the Original Direction) was made on 8 May 2015.   

The Original Direction implemented temporal and spatial closure arrangements to prevent further dolphin mortalities. The temporal closure prevented fishing by the mid-water trawl fishing method during the hours of darkness, between nautical evening twilight and nautical morning twilight. These times are set out in the Nautical Almanac tables for the relevant latitude, local time and date. 

The Direction

Since making the Original Direction AFMA has reviewed the ban on night time fishing taking into account new information and expert advice. The Direction varies the Original Direction by repealing the clause containing the prohibition of mid-water trawl fishing during the hours of darkness. All other aspects of the Original Direction continue in their original terms including the trigger limit of one dolphin death leading to the closure of the relevant zone of the fishery for a period of six months remains in place.

Consultation

The Direction is made under subsection 41A(3) of the Management Act, therefore no consultation is required. However, AFMA has been working with experts for some time to develop strategies to reduce the risk of marine mammal interactions in the Fishery. AFMA also consulted with the South East Management Advisory Committee, representatives from the fishing industry and other government agencies in relation to the Direction. AFMA will continue to consult with the South East Management Advisory Committee, industry members and scientists regarding measures to further reduce the risk of marine mammal mortalities by the mid-water trawl fishing method.

Regulation Impact Statement

The Office of Best Practice Regulation (OBPR) advised that a Regulation Impact Statement was not required for the Direction as they deemed it to be of a minor nature (ID 19672).

Statement of compatibility prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

This legislative instrument does not infringe any of the applicable rights or freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Accordingly, in AFMA’s assessment, this legislative instrument is compatible with human rights and a declaration is attached.

Details of the Direction are set out below: