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.2 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 (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 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 Sea Lion colonies in South Australian waters; the setting of 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 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 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 concession holders in the closed areas and the Australian Sea Lion Management Zone and required mandatory monitoring through onboard observers or electronic monitoring if fishing was undertaken by 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 expires on 31 October 2011.
The Authority’s Commission determined that a continuation of measures to minimise interactions with Australian Sea Lions is required. Therefore, this Direction is part of a combination of measures to come into force on 1 November 2011, to replace the measures implemented by the ASL temporary order. These measures comprise: (1) this direction under s41A of the Management Act, which closes to gillnet fishing the same areas in which the ASL temporary order prohibited fishing using gillnet methods; (2) a further temporary order, which continues the entitlement of certain holders of gillnet boat statutory fishing rights and South Australian Coastal Waters permits to fish using hook methods; and (3) the specification of further conditions on certain classes of fishing concession, which continue the requirements of the ASL temporary order concerning observer coverage, removal of biological material from nets and discharge of offal. The by catch triggers will be continued and reviewed to reduce them further and the 10% per cent observer coverage in the rest of the fishery remains in place.
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.
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. This culminated initially in the development of the Australian Sea Lion Management Strategy in June 2010, followed by the ASL temporary order which commenced on 1 May 2011.
Since then the Authority has consulted on the management measures to replace the ASL temporary order with industry, environment groups and scientists, including through the Shark Resource Assessment Group (Shark RAG) and the Committee. Shark RAG 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.
In consultation with Shark RAG, the Authority noted that no additional information was available that would cause the Authority to change the management approach contained in the ASL temporary order. The Committee supported continuing, in substance, the management measures contained in the ASL temporary order to protect Australian Sea Lions.
The Authority will continue to consult with the Committee, Shark RAG, industry members and other stakeholders, in developing long term strategies to achieve the objectives of these measures.
Regulation Impact Statement
A Regulation Impact Statement (RIS) has been prepared and has been approved by the Office of Best Practice Regulation (OBPR ID 13138).
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. 2 2011.
Clause 2 provides that the Direction commences on 1 November 2011.
Clause 3 provides that the ends at the end of 13 April 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 in the areas of the Southern and Eastern Scalefish and Shark Fishery by gillnet methods described in Schedule 1.
Sub-clause 7(1) makes clear that the Direction does not authorise a person to fish in an area using gillnet methods if this would be inconsistent with the specified temporary order that commenced on 23 September 2001 to protect dolphins, and that temporary order does not authorise a person to fish in an area using gillnet methods if this would be inconsistent with this Direction.
Sub-clause 7(2) 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.