EXPLANATORY STATEMENT
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 2012
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 (the Authority) 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.
The fishery
The Southern and Eastern Scalefish and Shark Fishery (the fishery) covers the area of waters from approximately 80 nautical miles off the coast near Fraser Island in Queensland, south around Tasmania and west to Cape Leeuwin in Western Australia. The area of the fishery encompasses almost half of the waters within the Australian Fishing Zone. The fishery operates in both Commonwealth and state waters under complex jurisdictional arrangements, due to different Offshore Constitutional Settlement arrangements with each state.
The fishery is managed under the Southern and Eastern Scalefish and Shark Fishery Management Plan 2003, in force under s17 of the Management Act, mainly through output controls in the form of Total Allowable Catch limits set under the Commonwealth Fisheries Harvest Strategy Policy and the specific fishery Harvest Strategy Framework. Input controls used include a limit on the number of boats that operate in each sector, as well as gear restrictions such as limits on mesh size and the amount of fishing gear that may be used.
Background to the Direction
In June 2010 the Authority put in place the Australian Sea Lion Management Strategy (the Strategy). The Strategy was developed to reduce and monitor the interactions between Australian Sea Lions and gillnets used by Commonwealth shark fishers in the area of the fishery off South Australia. Australian Sea Lions are classified as a threatened (vulnerable) species under the Environment Protection and Biodiversity Conservation Act 1999.
The Strategy followed a report by the South Australian Research and Development Institute that assessed that high levels of Australian Sea Lion by-catch mortality were limiting the recovery of most colonies in South Australia. Accordingly, the purpose of the Strategy was to significantly reduce the impact of gillnet fishing on Australian Sea Lions so as to enable colonies to recovery.
The measures implemented under the Strategy included formal closures around more than 40 Australian Sea Lion colonies in South Australian waters; the setting of Australian Sea Lion mortality limits that would trigger additional closures if unacceptable levels of ongoing Australian Sea Lion interaction occurred; and a review of gillnet fishing practices. The Strategy included a commitment by South Australia industry representatives to develop a Gillnetting Code of Conduct, with assistance from the Authority and the Commonwealth Fisheries Association within three months of the Strategy being implemented. The Strategy also noted that observer coverage (being the proportion of boats carrying an AFMA observer) had been significantly increased in 2009, and was further increased under the Strategy. There were two quarterly reviews of the strategy, in which industry members and other stakeholders participated, and the South East Management Advisory Committee (the Committee) appointed under section 56 of the Administration Act was briefed on the results of the reviews.
Despite those measures, the Authority assessed on the basis of data it had received that some gillnet boats had not been accurately reporting interactions with protected species, including Australian Sea Lions, and that the actual mortality of Australian Sea Lions and other protected species (such as birds and dolphins) was likely to be significantly greater than the mortality that was being reported. In addition, external scientific reviews questioned the effectiveness of the Strategy in protecting Australian Sea Lions and monitoring the fishery’s interactions with them.
The Authority considered that urgent, short term, action was required to protect these species. It therefore made the Fisheries Management (Southern and Eastern Scalefish and Shark Fishery Management Plan 2003) Temporary Order 2011 (the ASL temporary order), which commenced on 1 May 2011. The ASL temporary order closed additional areas of the fishery to fishing by gillnets, allowed the use of hooks by affected eligible gillnet concession holders in the closed areas and the Australian Sea Lion Management Zone and required mandatory monitoring through onboard observers or electronic monitoring of all fishing operations using gillnets in the areas of waters adjacent to the closed areas.Two additional policy measures were also implemented: bycatch triggers under the Australian Sea Lion Management Strategy were reduced and 10 percent observer coverage was instituted across the gillnet hook and trap fishery in areas other than the Australian Sea Lion Management Zone.
The ASL temporary order expired on 31 October 2011 and the Authority’s Commission determined that the measures imposed by the temporary order be continued by a combination of measures. These were:
i) the Southern and Eastern Scalefish and Shark Fishery (Closures) Direction No. 2 2011;
ii) the Fisheries Management (Southern and Eastern Scalefish and Shark Fishery Management Plan 2003) Temporary Order 2011 No. 3;
iii) the specification of further conditions on certain classes of fishing concession, which continued the requirements of the ASL temporary order concerning observer coverage, removal of biological material from nets and discharge of offal.
After these measures were introduced, the Authority consulted with the Australian Sea Lion Working Group on the Strategy, which provided advice on the effectiveness of the adaptive management component of the Strategy. Further advice on the Strategy was sought from marine mammal experts. As a result it was recommended that the by-catch trigger limits under the Strategy be further reduced. It was recommended that the reduction applies to trigger limits in particular zones in the ASL Zone fishery as well as to the overall by-catch trigger limit in the whole of the ASL Zone.
On 21 December 2011 the Authority’s Commission approved the recommendations to reduce the trigger limits, subject to the acceptance of the Regulatory Impact Statement (RIS). Accordingly, the Strategy was further amended to take into account the latest recommendations.
The Authority’s decision means that if a trigger limit is reached in a zone, that zone will be closed to gillnetting for a period of 18 months from the date of the mortality, or if the overall trigger limit is reached, the overall ASL Management Zone will be closed to gillnetting for a period of 18 months from the date of the last mortality. The decision also means that if a single mortality is recorded in Zone A of the fishery (as defined in the Schedule 1 of the Southern and Eastern Scalefish and Shark Fishery (Closures) Direction No.1 2012), that zone will be closed to gillnetting. In making this decision the Authority agreed that any mortalities since the beginning of the fishing season would be included.
The Authority received a report that an Australian Seal Lion mortality had occurred by gillnet fishing gear on 15 November 2011 in Zone A. Therefore this direction is made in accordance with the revised Strategy endorsed by the Authority’s Commission.
This Direction closes Zone A of the fishery to ensure that the Australian Sea Lion population and sub-populations are protected to ensure that the Authority meets its legislative objectives and to reduce the risk that the fishery will be closed by losing its accreditation under the Environment Protection and Biodiversity Conservation Act 1999.
The Authority is satisfied that the Direction is consistent with the objectives of the Plan; as well as with its 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)).
Consultation
Subsection 41A(2) of the Management Act provides that, before giving a Direction, the Authority must consult the relevant management advisory committee and consider their views. The Authority may also consider the views of other interested persons.
In accordance with Subsection 41A(2) of the Management Act, AFMA has consulted with the South East Management Advisory Committee (SEMAC) on the contents of the Direction.
The Authority has also been working with stakeholders for some time to develop strategies to reduce the level of interactions in the Gillnet Hook and Trap Sector of the fishery with threatened, endangered and protected species.
The proposal to reduce the trigger limits in the ASL Zone (based on the advice of the Australian Sea Lion Working Group and marine mammal experts) was discussed with SEMAC in September 2011. SEMAC provides a broad stakeholder consultation and advice body for the Authority’s Commission on fisheries management decisions. The Authority also consulted on the management measures with environment groups and scientists, including through the Shark Resource Assessment Group (SharkRAG) and the Committee. SharkRAG comprises scientists, experts, industry and the Authority’s representatives and provides scientific advice to the Authority and the Authority’s Commission. The Committee is comprised of the Authority, industry, scientific, recreational fishery, conservation, and State members.
On 18 November 2011 the Authority consulted with stakeholders through industry associations and the ASL Working Group and sought submissions on the revised Strategy. Only five responses were received and these were taken into account by the Authority’s Commission in making their decision to revise the Strategy and to implement the closure of Zone A based on a single mortality.
The Authority will continue to consult with the Committee, SEMAC, Shark RAG, industry members and other stakeholders, in developing long term strategies to achieve the objectives of these measures.
Regulation Impact Statement
A RIS has been prepared and has been approved by the Office of Best Practice Regulation (OBPR ID 13344).
Statement of Compatibility
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Terms of the Direction
Details of the Direction are set out below:
Clause 1 provides for the Direction to be cited as Southern and Eastern Scalefish and Shark Fishery (Closures) Direction No. 1 2012.
Clause 2 provides that the Direction commences seven days after it is registered on the Federal Register of Legislative Instruments.
Clause 3 provides that Direction ceases on 15 May 2013, unless earlier revoked.
Clause 4 specifies the persons to whom the Direction applies.
Clause 5 provides that terms used in the Direction that are defined in the Management Plan, have the same meanings they have in the Management Plan.
Clause 6 directs that fishing is not to be engaged in the areas of the Southern and Eastern Scalefish and Shark Fishery by gillnet methods described in Schedule 1.
Clause 7 provides that this Direction does not affect any other Direction in force that closes a part of the fishery to fishing, which Directions continue in force according to their terms.
Schedule 1 describes the area of the fishery closed to gillnet fishing.