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

Administered by Department of Agriculture

Legislation au F2015L01450 Not in force Legislative Instrument

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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:

Clause 1

Provides for the Direction to be cited as the Small Pelagic Fishery (Closures Variation) Direction No. 1 2015.

Clause 2

Provides that the Direction commences on the day it is registered on the Federal Register of Legislative Instruments.

Clause 3

Provides that the Direction is repealed on 8 May 2020 unless earlier revoked.

Clause 4

Provides that terms used in the Direction that are defined in the Small Pelagic Fishery Management Plan 2009 (the Plan) and the Management Act, have the same meanings they have in the Plan and Management Act.

Clause 5

Provides that the Direction applies to a holder of a fishing concession in the Fishery and to a person acting on behalf of the holder.

Clause 6

Varies the Small Pelagic Fishery (Closures) Direction No. 1 2015 by repealing Clause 6 of the instrument.   

 

 

 

 

 

 

 

 

Overview

The Fisheries Management Act 1991, enacted by the Australian Parliament, was introduced to provide a comprehensive framework for the management of fisheries within Australia's jurisdiction. The Act establishes the Australian Fisheries Management Authority (AFMA) to ensure the sustainable exploitation of fisheries resources, with a focus on ecologically sustainable development and the protection of marine biodiversity. In response to concerns about the impact of fishing activities on marine mammals, particularly dolphins, the Small Pelagic Fishery (Closures Variation) Direction No. 1 2015 was issued by AFMA under the authority of the Fisheries Management Act. This Direction aims to address the unacceptable rate of dolphin mortality by varying the initial closures imposed to mitigate the risk of such interactions. AFMA has been actively consulting with experts, industry stakeholders, and advisory committees to develop and refine measures aimed at reducing marine mammal fatalities while balancing the needs of the fishing industry.

Scope and Application

The Small Pelagic Fishery (Closures Variation) Direction No. 1 2015 applies to holders of fishing concessions within the Small Pelagic Fishery, which extends from the Queensland/New South Wales border around the southern coast of Australia to a line at latitude 31° south, and to individuals acting on behalf of these concession holders. The Direction modifies the Small Pelagic Fishery (Closures) Direction No. 1 2015 by removing the prohibition on mid-water trawl fishing during the hours of darkness, while retaining other provisions such as the closure of relevant zones for six months upon the occurrence of a dolphin death. This legislative instrument operates within the framework of the Fisheries Management Act 1991 and is intended to manage fishing activities in a manner consistent with ecologically sustainable development, particularly by mitigating the impact of fishing on non-target species like dolphins. The Direction does not require further consultation as it is made under subsection 41A(3) of the Management Act, although ongoing consultation with industry and experts continues to refine strategies for marine mammal protection. The Direction will remain in effect until 8 May 2020 unless earlier revoked, and it is subject to the definitions and provisions outlined in the Small Pelagic Fishery Management Plan 2009 and the Fisheries Management Act 1991.

Key Provisions

The Small Pelagic Fishery (Closures Variation) Direction No. 1 2015 (the Direction) modifies existing regulations regarding fishing activities in the Small Pelagic Fishery, which extends from the Queensland/New South Wales border to a line at latitude 31° south. This Direction specifically repeals the prohibition on mid-water trawl fishing during the hours of darkness, which was introduced in the Small Pelagic Fishery (Closures) Direction No. 1 2015 (the Original Direction) to prevent dolphin mortalities. The Direction retains the original closure provisions, including the requirement to close a specific zone of the fishery for six months if a single dolphin death is reported (Clause 6). This modification was made following consultation with industry stakeholders and experts, who provided updated information and advice on the risks of dolphin mortality. Under the Fisheries Management Act 1991 (the Management Act), the Australian Fisheries Management Authority (AFMA) has the authority to direct fishing closures or variations thereof, as outlined in sections 41A(2) and 41A(3). The Direction imposes obligations on fishing concession holders and their representatives to comply with the updated closure regulations. Specifically, fishing concession holders must adhere to the new provisions that allow mid-water trawl fishing during the hours of darkness, while still complying with other restrictions such as the closure of certain zones upon dolphin deaths. AFMA must ensure that fishing concession holders are promptly informed of any changes to the regulations, as stipulated in section 41A(4) of the Management Act. Failure to comply with the provisions of the Direction may result in civil or criminal penalties. While the Direction does not explicitly outline specific penalties, breaches of fishing regulations under the Management Act can lead to substantial fines and potential imprisonment. For example, the Management Act provides for penalties of up to $22,222 for individuals and significantly higher fines for corporations, alongside potential imprisonment terms. Furthermore, AFMA retains the authority to enforce these regulations, and non-compliance could result in further action, including the suspension or revocation of fishing concessions.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.