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 2017
The Direction is a legislative instrument for the purposes of the Legislation Act 2003.
Subsection 41A(2) of the Fisheries Management Act 1991 (the Management Act) provides 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 specified 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 under Part 5 of the Management Act.
The Fishery is managed under the Southern and Eastern Scalefish and Shark Fishery Management Plan 2003 (the Plan), in force under section 17 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 Harvest Strategy Framework for the Fishery. Some input controls are also used in the Fishery which include a limit on the number of boats that operate in each sector, as well as gear restrictions such as limits on fishing net mesh size.
The Direction
This Direction provides that gillnet fishing is not to be engaged in in adaptive management zone D (Zone D), as defined in Schedule 1 of the Direction, for a period of eighteen months.
Regulation Impact Statement
The Office of Best Practice Regulation provided a standing carve out to the Authority (OBPR No. 14421) recognising that a direction that fishing not be engaged in in sub-areas of a fishery is a decision under current regulatory settings.
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 recover.
After the Strategy was introduced, the Authority also consulted with the Commonwealth Marine Mammal 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 also sought from marine mammal experts. As a result of this consultation and advice it was recommended the by-catch trigger limits under the Strategy be reduced. The Strategy was revised on 1 May 2013 to incorporate such lower by-catch trigger limits. The current Strategy is publicly available on the Authority’s website.
As revised, the Strategy provides that if a by-catch trigger limit is reached in a zone in a fishing season, that zone will be closed to gillnetting for 18 months from the date the limit is reached. The period of 18 months reflects the length of the breeding cycle of the Australian sea lion. It follows that if one Australian sea lion interaction is recorded in Zone D (as defined in the Strategy and in Schedule 1 of the Southern and Eastern Scalefish and Shark Fishery (Closures) Direction No 1. 2017) in a single fishing season, that zone will be immediately closed to gillnetting for a period of 18 months from the last interaction.
The Authority received a report that an Australian sea lion mortality occurred by gillnet fishing gear on 9 September 2017 in Zone D. Therefore, this Direction is made on an emergency basis and in accordance with the revised Strategy.
The Direction closes Zone D of the Fishery to gillnet fishing to ensure the Australian sea lion population and sub-populations are protected. In doing so, the Direction ensures the Authority meets its legislative objectives under the Management Act and the Fisheries Administration Act 1991 (the Administration Act) and reduces risk of the fishery being closed because of loss of accreditation under the EPBC Act.
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, making this Direction on an emergency basis is consistent with its pursuit of the objective concerned with the sustainability of fisheries resources (paragraph 3(1)(b) of the Management Act) 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
The Direction is made in accordance with the Strategy. The Strategy was developed in consultation with AFMA’s Commonwealth Marine Mammal Working Group, industry, the Shark Resource Assessment Group and the South East Management Advisory Committee (established under section 56 of the Administration Act).
Subsection 41A(2B) of the Management Act provides that, in the case of an emergency, the Authority may give a Direction without any consultation. The Authority, in line with the Strategy (which is publicly available on the Authority’s website), considers that Zone D should be closed on such an emergency basis to reduce the risk of further Australian sea lion mortalities in that zone.
In line with its obligations under paragraph 41A(2B)(c) of the Management Act, the Authority will advise each holder of a fishing concession, scientific permit or foreign master fishing licence that relates to the part of the Fishery closed by the Direction is provided with a copy of the Direction as soon as possible.
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 2017.
Clause 2 provides that the Direction commences on the day it is registered on the Federal Register of Legislation.
Clause 3 provides that Direction is repealed on 9 March 2019, 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.