Southern and Eastern Scalefish and Shark Fishery (Closures) Direction No. 2 2011

Administered by Department of Agriculture

Legislation au F2011L02154 Not in force Legislative Instrument

Legislation content

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.   

 

Overview

The Fisheries Management Act 1991, enacted by the Commonwealth Parliament, establishes a framework for the management of fisheries within Australia's fishing zone, addressing the need for sustainable management of fisheries resources and ensuring that fishing activities do not adversely affect the marine environment or the sustainability of fish stocks. The Southern and Eastern Scalefish and Shark Fishery (Closures) Direction No. 2 2011 was introduced by the Australian Fisheries Management Authority (AFMA) to address the problem of high levels of by-catch, particularly of the vulnerable Australian Sea Lion, in the Southern and Eastern Scalefish and Shark Fishery. The Direction aims to reduce these interactions by closing certain areas to gillnet fishing and implementing other protective measures, thereby aligning with the policy objective of ensuring the sustainability of fisheries resources as outlined in the Management Act. This legislative instrument was developed after consultations with relevant stakeholders and scientific bodies, ensuring that the measures are both effective and balanced with the needs of the fishing industry.

Scope and Application

The Southern and Eastern Scalefish and Shark Fishery (Closures) Direction No. 2 2011 is a legislative instrument made under the Fisheries Management Act 1991 by the Australian Fisheries Management Authority. The Direction applies to individuals and entities engaged in fishing activities within the Southern and Eastern Scalefish and Shark Fishery, particularly targeting gillnet methods in specific areas as outlined in the Schedule to the Direction. It operates across Commonwealth and state waters, covering a significant portion of the Australian Fishing Zone 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 Direction does not affect any other Directions in force that close parts of the fishery to fishing, which continue according to their terms. The Direction came into effect on 1 November 2011 and will remain in force until the end of 13 April 2013, unless earlier revoked. It is intended to provide continued protection for Australian Sea Lions and other protected species by closing certain areas to gillnet fishing, following the expiry of the Australian Sea Lion Management (Temporary Order) 2011, which had been in place to address the high levels of Sea Lion by-catch mortality. The Direction extends the measures implemented under the temporary order, including mandatory monitoring through onboard observers or electronic monitoring if fishing is undertaken by gillnets in areas adjacent to the closed areas.

Key Provisions

The Southern and Eastern Scalefish and Shark Fishery (Closures) Direction No. 2 2011 primarily comprises provisions that direct closures in certain areas of the fishery to gillnet fishing methods, effective from 1 November 2011 until 13 April 2013 (Clauses 1, 2, and 3). This direction applies to all persons who are engaged in fishing activities within the specified areas of the fishery (Clause 4). Terms used in the Direction that are also defined in the Southern and Eastern Scalefish and Shark Fishery Management Plan 2003 have the same meanings as set out in that plan (Clause 5). The Direction explicitly prohibits the use of gillnet fishing methods in the areas detailed in Schedule 1 (Clause 6). Furthermore, this Direction does not allow gillnet fishing if it conflicts with the temporary order that protects dolphins, nor does it affect any other existing directions that close parts of the fishery to fishing (Clause 7). Under this Act, all persons involved in fishing within the specified areas are required to comply with the Direction by refraining from engaging in gillnet fishing in the closed areas. They must adhere to the stipulated conditions, such as the prohibition on using gillnet methods, and ensure that their activities do not contravene any other relevant temporary orders or directions that may be in force. This includes ensuring that their fishing activities do not conflict with the measures designed to protect dolphins or any other ongoing fishery closures. Entities must also ensure that any biological material removed from nets and discharge of offal are managed in accordance with the specified conditions. Breaches of the Direction may result in legal consequences. Specifically, any person who contravenes the provisions of this Direction is liable to penalties as outlined under the Fisheries Management Act 1991. The penalties for such offences can include substantial fines and, in some cases, imprisonment. The exact penalties depend on the nature and severity of the breach but can include fines of up to $162,000 for individuals and $810,000 for corporations, alongside potential imprisonment terms. Additionally, failure to comply with the specified conditions may result in the suspension or revocation of fishing permits and licences, further exacerbating the consequences for non-compliance.

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Environmental Law
Instrument
Direction
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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.