EXPLANATORY STATEMENT
Issued by the Authority of the
Australian Fisheries Management Authority
Fisheries Management Act 1991
Southern and Eastern Scalefish and Shark Fishery (Closures) Direction (No.1) 2014
Subsection 41A(2) of the Fisheries Management Act 1991 (the Management Act) provides, inter alia, that Australian Fisheries Management Authority (the Authority) 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.
The Direction is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
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.
Management in the fishery is 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.
Closures serve to place restrictions on effort to protect spawning grounds, minimise impact on deepwater species, facilitate the recovery of certain species and protect threatened and endangered species.
Background to the Direction
In pursuing its objectives the Authority is required to ensure that, as far as is practicable, the measures adopted are not inconsistent with the preservation, conservation and protection of all species of whales, which is defined to include dolphins (subsection 3(2) of the Management Act). Additionally, under the Environment Protection and Biodiversity Conservation Act 1999 all cetaceans (whales, dolphins and porpoises) are protected in Australian waters.
In response to increases in reports of dolphin mortalities in waters adjacent to South Australia from gillnet fishing, the Authority registered the Fisheries Management (Southern and Eastern Scalefish and Shark Fishery Management Plan 2003) Temporary Order No. 2 2011 (the Order) on 22 September 2011. The Order closed an area of the Gillnet Hook and Trap Sector of the fishery off South Australia to gillnetting, established a zone adjacent to the closed area with mandatory monitoring while fishing with gillnets, and allowed for the use of hooks by affected gillnet concession holders in both the closed area and monitoring zone.
In March 2012, under section 43 of the Management Act the Authority registered the Fisheries Management (Southern and Eastern Scalefish and Shark Fishery Management Plan 2003) Temporary Order No. 1 2012 (the secondary Order), which continued the measures contained in the Order to protect dolphins in areas of the Gillnet Hook and Trap Sector from gillnet fishing for a further six month period.
In September 2012, upon expiry of the secondary Order the Authority registered the Southern and Eastern Scalefish and Shark Fishery (Closures) Direction No. 5 2012 (the first Direction) which continued to close the area off South Australia to gillnet fishing. The first Direction was registered for a period of 12 months. The compulsory monitoring while fishing with gillnets in the zone adjacent to the closure was maintained through a direction given under the Fisheries Management Regulations 1992 and concession conditions. The measures of this Direction were again renewed in September 2013 through the registration of a second Direction - Southern and Eastern Scalefish and Shark Fishery (Closures) Direction No. 10 2013 for an additional 12 month period.
The Direction
The Southern and Eastern Scalefish and Shark Fishery (Closures) Direction (No. 1) 2014 supersedes Southern and Eastern Scalefish and Shark Fishery Closures Direction No. 10 2013. The direction applies to all Gillnet Boat Statutory Fishing Right holders, South Australian Coastal Waters Gillnet and South Australian Coastal Waters Gillnet/Hook permits and those operating on behalf of these concession holders.
Under the Direction, all concession holders are excluded from fishing with gillnets in the Coorong Dolphin Zone (area of waters defined in Schedule 1 of the Direction) unless meet criteria designed to protect dolphins.
To fish in the Coorong Dolphin Zone concession holders must have submitted a gear survey and individual vessel Dolphin Mitigation Plan to AFMA. They must also have an AFMA approved electronic monitoring system and electronic logbooks.
To continue fishing in the Coorong Dolphin Zone, concession holders are required to meet ongoing performance criteria to reduce the risk of dolphin bycatch. If a concession holder exceeds the set bycatch rate, to ensure dolphins are protected while gear and fishing practice adjustments are made, the concession holder is not permitted to fish in the Coorong Dolphin Zone for a six month period. During this period, the Authority’s officers will conduct a port visit with the concession holder and review the Dolphin Bycatch Evaluation Reports and the Dolphin Mitigation Plan for that boat. The operator will be required to review and resubmit the nominated boat’s Dolphin Mitigation Plan before recommencing fishing in the Coorong Dolphin Zone after six months. The operator is able to trial the revised mitigation measures outside the Coorong Dolphin Zone during this six month period.
This Direction is consistent with the Authority’s legislative obligation to pursue its objectives. This includes the objective of ensuring that the exploitation of fisheries resources is conducted in a manner consistent with the principles of ecologically sustainable development (which include the exercise of the precautionary principle), and 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 (Part 1 paragraph 3(1)(b) of the Management Act). The measures adopted are consistent with the preservation, conservation and protection of dolphins (subsection 3(2) of the Management Act).
The Direction will be registered for a period of five years to address interactions with dolphins in the Gillnet Hook and Trap Sector of the fishery. During the five year period the Authority will consult with relevant stakeholders to review the efficacy of the Dolphin Strategy and the Direction.
Regulation Impact Statement
The Office of Best Practice Regulation advised that as the proposed instrument had minor regulatory impacts, no Regulation Impact Statement was required (ODPR ID 17313).
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 the Authority’s assessment, this legislative instrument is compatible with human rights and a declaration is attached.
Consultation
Subsection 41A(2) of the Management Act provides that, before giving a direction, the Authority must consult the Management Advisory Committee and consider their views.
The Authority has 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.
Since the increase in the reporting of interactions with dolphins, and dolphin mortalities, during gillnet fishing, the Authority has consulted with industry, environment groups and scientists, including through AFMA’s Marine Mammal Working Group, the Shark Resource Assessment Group and South East Management Advisory Committee (the Committee). The Shark Resource Assessment Group comprises scientists, experts, industry and the Authority’s representatives and provides scientific advice to the Authority and the Authority’s Commission. The Committee is established under s56 of the Fisheries Administration Act 1991 to assist the Authority in the performance of its functions, in respect of the fishery. It is comprised of the Authority’s, industry, scientific, recreational fishery, conservation, and State members.
Over the past two years AFMA has developed the Dolphin Strategy: Minimising Bycatch (AFMA 2014) with considerable levels of consultation with many stakeholders including AFMA’s Marine Mammal Working Group. The working group consists of industry, marine mammal experts, conservation groups, state fishery agencies and other government department representatives.
In 2012 the Authority formed the Future Directions Working Group to consult with industry on alternative management arrangements to prevent interactions with threatened species and provide fishers with more economic certainty. The working group, which consists of six industry representatives, has met three times between November 2012 and April 2013. Fishers involved in the working group are those directly affected by the Direction.
Details of the Direction are set out below:
Clause 1 Provides for the Direction to be cited as the Southern and Eastern Scalefish and Shark Fishery (Closures) Direction (No. 1) 2014.
Clause 2 Provides that the Direction commences on the day after registration on the Federal Register of Legislative Instruments.
Clause 3 Provides that the Direction ceases as if revoked on 8 September 2019, unless earlier revoked.
Clause 4 Specifies the persons to whom the Direction applies.
Clause 5 Directs that fishing is not to be engaged in in the areas of the Southern and Eastern Scalefish and Shark Fishery by gillnet methods described in Schedule 1 (The Coorong Dolphin Zone).
Clause 6 Provides that limited fishing may be engaged in the areas of the Coorong Dolphin Zone provided criteria are met by concession holders.
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.
Clause 8 Revokes the previous Direction closing the area under the Southern and Eastern Scalefish and Shark Fishery (Closures) Direction No. 10 2013 (F2014L01701).
Schedule 1 Describes the area of the fishery closed to fishing by gillnet methods.
Schedule 2 Describes the specified periods of the Direction.
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