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.3 2012
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 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 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 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, that zone will be closed to gillnetting for a period of 18 months, or if the overall trigger limit is reached, the overall Australian Sea Lion Management Zone will be closed to gillnetting for a period of 18 months. The decision also means that if a single Australian Sea Lion mortality is recorded in Zone D of the fishery (as defined in the Schedule 1 of the Southern and Eastern Scalefish and Shark Fishery (Closures) Direction No 3. 2012), that zone will be closed to gillnetting. In making this decision the Authority agreed that any mortalities since the beginning of the fishing season would be included.
The Authority received a report that an Australian Sea Lion mortality had occurred by gillnet fishing gear on 23 February 2012 in Zone D. Therefore, this Direction is made in accordance with the revised Strategy endorsed by the Authority’s Commission.
This Direction closes Zone D 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
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.
In accordance with Subsection 41A(2) of the Management Act, the Authority has consulted with the South East Management Advisory Committee (the Committee) on the contents of the Direction.
The Authority has also 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.
The proposal to reduce the trigger limits in the Australian Sea Lion Management Zone (based on the advice of the Australian Sea Lion Working Group and marine mammal experts) was discussed with the Committee in September 2011. The Committee is comprised of the Authority, industry, scientific, recreational fishery, conservation, and State members. The Committee provides a broad stakeholder consultation and advice body for the Authority’s Commission on fisheries management decisions. The Authority also consulted on the management measures with environment groups and scientists, including through the Shark Resource Assessment Group (SharkRAG). SharkRAG comprises scientists, experts, industry and the Authority’s representatives and provides scientific advice to the Authority and the Authority’s Commission.
On 18 November 2011 the Authority consulted with stakeholders through industry associations and the ASL Working Group and sought submissions on the revised Strategy. Only five responses were received and these were taken into account by the Authority’s Commission in making their decision to revise the Strategy and to implement the bycatch trigger zones.
The Authority consulted with the Committee regarding the Zone D closure on 20-23 March 2012. The Committee was unable to provide consensus support for the closure although the Committee Chair noted the proposal was in accordance with the ASL Management Strategy.
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.
Regulation Impact Statement
A RIS has been prepared and has been approved by the Office of Best Practice Regulation (OBPR ID 13344).
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. 3 2012.
Clause 2 provides that the Direction commences seven days after it is registered on the Federal Register of Legislative Instruments.
Clause 3 provides that Direction ceases on 23 August 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.
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.