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 2016
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 direct that fishing is not to be engaged in 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 (the Plan), 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 EPBC Act).
The Strategy followed a report by the South Australian Research and Development Institute that suggested high levels of Australian sea lion bycatch 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 maximum Australian sea lion mortality limits that would trigger additional closures if unacceptable levels of ongoing Australian sea lion interactions occurred; and a review of gillnet fishing practices and gear. The Strategy included a commitment by South Australian 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 observer) had been significantly increased in 2009, and was further increased under the Strategy. During 2010 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 Fisheries Administration Act 1991 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 boat operators had not been accurately reporting interactions with protected species, including Australian sea lions, and 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 rate which 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 Strategy were reduced and 10 percent observer coverage was instituted across the gillnet hook and trap sector 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 were to 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; and
iii) the specification of further conditions on certain classes of fishing concessions, 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 the by-catch trigger limits under the Strategy be further reduced. It was recommended the reduction be applied to trigger limits in individual Australian Sea Lion Management Zones as well as to the overall by-catch trigger limit in the whole of the Australian Sea Lion Management 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 in a fishing season, that zone will be closed to gillnetting with an expiry date of 18 months from the last interaction, being the length of the breeding cycle of the Australian sea lion; and, if the overall trigger limit is reached in a fishing season, the overall Australian Sea Lion Management Zone will be closed to gillnetting with an expiry date of 18 months from the last interaction, being the length of the breeding cycle of the Australian sea lion. The decision also means that if two Australian sea lion interactions are recorded in Zone C (as defined in the Schedule 1 of the Southern and Eastern Scalefish and Shark Fishery (Closures) Direction No 1. 2016) in a single fishing season, that zone will be closed to gillnetting with an expiry date of 18 months from the last interaction.
The Authority received a report that an Australian sea lion mortality had occurred by gillnet fishing gear on 14 December 2015 in Zone C. On 13 January 2016, the Authority became aware of another Australian sea lion mortality in Zone C from a different operator on 18 December 2015. Therefore, this Direction is made in accordance with the revised Strategy endorsed by the Authority’s Commission.
This Direction closes Zone C of the fishery to gillnet fishing to ensure the Australian sea lion population and sub-populations are protected. It further ensures the Authority meets its legislative objectives and reduces the risk of the fishery being closed should the fishery lose its accreditation under the EPBC Act.
The Authority is satisfied 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 Authority is satisfied that the Direction is consistent with its pursuit of the objective concerned with the sustainability of fisheries resources (paragraph 3(1)(b)) which includes that the Authority must ‘have regard to the impact of fishing activities on non-target species and the long term sustainability of the marine environment.’
Consultation
This Direction is being introduced in accordance with the Australian Sea Lion Management Strategy. The Strategy was developed in consultation with AFMA’s Australian Sea Lion Working Group, industry, the Shark Resource Assessment Group and the South East Management Advisory Committee.
Subsection 41A(2) of the Management Act provides that, in the case of an emergency, the Authority may give a Direction without any consultation. It is considered that this zone should be closed immediately to reduce the risk of further Australian sea lion mortalities in that zone.
The Authority will continue to consult with the Committee, SharkRAG, industry members and other stakeholders, in developing long term strategies to achieve the objectives of these measures.
Statement of compatibility prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
The Authority assesses under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 that this legislative instrument is compatible with human rights. The Authority’s Statement of Compatibility is attached as a supporting document.
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 2016.
Clause 2 provides that the Direction commences on the day after it is registered on the Federal Register of Legislative Instruments.
Clause 3 provides that Direction is repealed on 18 June 2017, 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 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 fishing by gillnet methods.