EXPLANATORY STATEMENT
LEGISLATIVE INSTRUMENT
Issued by the Authority of the
Australian Fisheries Management Authority
Fisheries Management Act 1991
Southern and Eastern Scalefish and Shark Fishery
Southern and Eastern Scalefish and Shark Fishery (Closures) Direction No.1 2011
The Direction is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Subsection 41A(2) of the Fisheries Management Act 1991 (the Management Act) provides, inter alia, that the Australian Fisheries Management Authority (AFMA) may, after such consultation as set out in subsection 41A(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.
Purpose
The Southern and Eastern Scalefish and Shark Fishery Closures Direction
No. 1 2011 (the Direction) prescribes the circumstances in which operators in the Southern and Eastern Scalefish and Shark Fishery (the Fishery) may take the species School Shark.
School Shark is currently listed as a conservation dependent species under the Environment Protection and Biodiversity Conservation Act 1999 and is subject to a Commonwealth rebuilding strategy. Under the strategy the stock must be rebuilt to 20 per cent of un-fished levels by 2042.
Accordingly, the purpose of the Direction is to prevent targeting of School Shark and to ensure that the exploitation of the stock is done at a sustainable level. It requires either that a specified ratio between a person’s School Shark catch and Gummy Shark quota holdings be maintained; or that the person’s School Shark catch not exceed, in each period of the fishing season, a specified weight. Therefore, a person may only take an amount of School Shark that exceeds the specified weights if, when the quota and catch are balanced by AFMA at the end of each period, the person holds five times more Gummy Shark quota (both caught and uncaught) than the amount of School Shark the person has caught.
The Direction is consistent with AFMA’s objectives of ecologically sustainable development with regard to the long term sustainability of the marine environment, and maximising net economic returns to the Australian community.
Consultation
Subsection 41A(2) of the Management Act provides that, before giving a direction, AFMA must consult the South East Management Advisory Committee (SEMAC) and consider the views of the Committee. AFMA may also consider the views of other interested persons.
AFMA convened two workshops during 2010 to work with industry to develop ways of reducing School Shark catch. The catch ratio implemented by this Direction is an outcome of those workshops and was supported by SEMAC at meetings on 14-15 September 2010. SEMAC agreed to the amounts specified in this Direction at its meeting on 13 April 2011.
The Direction (the original Direction) was executed prior to the start of the current fishing season on 1 May 2011 but due to an oversight it was not registered on the Federal Register of Legislative Instruments. The Direction therefore did not come into force. However, the fishing concession holders to whom the original Direction was to apply were informed of the Direction and the requirements therein prior to the start of the fishing season, and both AFMA and industry understood that the Direction had been in force since the start of the season. Further, no concession holder has caught sufficient school shark to trigger the prohibition on fishing for school shark that would have applied, had the original Direction been in force. Therefore, the fishing concession holders to whom the condition applies are not prejudiced by the delay in the Direction coming into force.
AFMA is satisfied that the Direction is consistent with the re-building strategy and therefore with the objectives of the Plan. It is also consistent with AFMA’s obligation to pursue the objectives set out in section 3 of the Management Act, in particular the objective concerned with the sustainability of fisheries resources (paragraph 3(1)(b)).
The only changes to the original Direction are to reduce the number of catch periods specified in clauses 6 and 7 from 4 to 3, with a corresponding amendment to clause 8. The ‘first period’ is therefore now 28 October 2011, not 29 July 2011. The same catch rates apply. This means that as under the original Direction, a holder may be prohibited by the Direction from fishing for school shark if, at the end of the ‘first period’ (28 October 2011) the holder has taken 500kgs or more of school shark in the season.
Regulation Impact Statement
The Office of Best Practice Regulation (OBPR) advised that a Regulation Impact Statement was not required for the Direction (OBPR ID 12515).
Details of the Direction are set out below:
Clause 1 provides for the Direction to be citied as Southern and Eastern Scalefish and Shark Fishery (Closures) Direction No. 1 2011.
Clause 2 specifies the period in which the direction is in force, being the day after it is registered on the Federal Register of Legislative Instruments to 30 June 2012 (inclusive).
Clause 3 states that the Direction applies to fishing concessions in three sectors of the Fishery when using the gillnet method.
Clause 4 provides that terms used in the Direction that are defined in the Management Plan, have the same meanings as they have in the Management Plan.
Clause 5 directs a person not to engage in fishing for School Shark in the 2011-2012 Fishing Year.
Clause 6 provides an exception to the prohibition in Clause 5 for persons who hold five times more Gummy Shark quota (caught and uncaught) than the amount of School Shark that the person has taken, or who catch less than the amounts specified at the end of each period, which are cumulative over the course of the fishing year.
Clause 7 defines the terms first, second and third period, as used in clause 6. These periods are consistent with the quota and catch balancing dates prescribed in the conditions on fishing concessions in force in the Fishery.
Clause 8 specifies, for each period, the date on which the holding of caught and uncaught quota of Gummy Shark and of School Shark taken must be calculated for the purpose of determining compliance with clause 6.