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. 5 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 s41A(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.
Management in the fishery is 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.
Closures serve to place restrictions on effort to protect spawning grounds, minimise impact on deepwater species, facilitate the recovery of certain species and protect threatened and endangered species.
Background to the Direction
In response to increases in reports of dolphin mortalities in waters adjacent to South Australia from gillnet fishing, the Authority registered the Fisheries Management (Southern and Eastern Scalefish and Shark Fishery Management Plan 2003) Temporary Order No. 2 2011 (the Order) on 22 September 2011. The Order closed an area of the Gillnet Hook and Trap Sector of the fishery off South Australia to gillnetting, established a zone adjacent to the closed area with mandatory monitoring while fishing with gillnets, and allowed for the use of hooks by affected gillnet concession holders in both the closed area and monitoring zone.
In the 12 months leading up to the registration of the Order in September 2011, there was a significant increase in the reporting of dolphin mortalities caused by gillnet fishing in the Gillnet Hook and Trap Sector of the fishery.
Numbers of dolphin deaths recorded in the preceding years were minimal. In the 12 months prior to the registration of the Order, the number of reported dolphin deaths rose sharply to 47.
The increased reporting was coincidental with increased monitoring in this Sector of the fishery. In July 2011 the Authority increased monitoring and observer coverage in the Gillnet Hook and Trap Sector.
The Authority also wrote to Gillnet Hook and Trap Sector concession holders in March 2011 reminding them of their obligation to report interactions with Threatened, Endangered and Protected species (as listed under the Environment Protection and Biodiversity Conservation Act 1999), particularly dolphins.
In March 2012, under section 43 of the Management Act the Authority registered the Fisheries Management (Southern and Eastern Scalefish and Shark Fishery Management Plan 2003) Temporary Order No. 1 2012 (the secondary Order), which continued the measures contained in the Order to protect dolphins in areas of the Gillnet Hook and Trap Sector from gillnet fishing for a further six month period.
The Authority assesses that some gillnet boats have not been accurately reporting interactions with protected species in the past, and that the actual mortality of dolphins and protected species (such as birds and sea lions) is likely to be significantly greater than the mortality that is being reported.
The Authority considers the threat to dolphins from interactions with gillnets in the area of water closed under the Order and the secondary Order is enough to warrant the continuation of the closure under the Direction. The Authority further considers that given the current conditions, dolphin mortalities would continue in this area if it was reopened which is inconsistent with the Authority’s legislative objectives to have regard to the protection of cetaceans. Additional dolphin mortalities across the rest of the fishery, including in the Dolphin Observation Zone further suggest that dolphin interactions would re-occur in this area if reopened.
The Direction prohibits fishing by gillnets in the same area of waters closed to gillnet fishing under the secondary Order. The other measures contained within the secondary Order will be achieved through other regulatory mechanisms available to the Authority under the Management Act. Specifically, through concession conditions and the grant of permits allowing the use of hooks to affected gillnet concession holders based on eligibility criteria relating to past fishing effort in the Gillnet Hook and Trap Sector.
This Direction is consistent with the Authority’s legislative obligation to pursue its objectives. This includes the objective of ensuring that the exploitation of fisheries resources is conducted in a manner consistent with the principles of ecologically sustainable development (which include the exercise of the precautionary principle), and in particular the need to have regard to the impact of fishing activities on non-target species and the long term sustainability of the marine environment (Part 1 paragraph 3(1)(b) of the Management Act).
In pursuing its objectives the Authority is required to ensure that, as far as is practicable, the measures adopted are not inconsistent with the preservation, conservation and protection of all species of whales, which is defined to include dolphins (subsection 3(2) of the Management Act).
In allowing those gillnet fishers most affected by the new measures to continue to fish in areas now closed to gillnet fishing using an alternative fishing method that does not pose a threat to dolphins, the action is also consistent with the Authority’s further objective of maximising the net economic returns to the Australian community from the management of Australian fisheries (Part 1 Section 3(1)(c) of the Management Act).
The Direction will be registered for a period of 12 months which is considered a medium term measure to address continued interactions with dolphins in the Gillnet Hook and Trap Sector of the fishery. The 12 month period will allow the Authority time to consult with stakeholders, industry members and advisory groups in view of developing long term or permanent solutions.
Consultation
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.
Since the increase in the reporting of interactions with dolphins, and dolphin mortalities, during gillnet fishing, the Authority has consulted with industry, environment groups and scientists, including through the Shark Resource Assessment Group and South East Management Advisory Committee (the Committee). The Shark Resource Assessment Group comprises scientists, experts, industry and the Authority’s representatives and provides scientific advice to the Authority and the Authority’s Commission. The Committee is established under s56 of the Fisheries Administration Act 1991 to assist the Authority in the performance of its functions, in respect of the fishery. It is comprised of the Authority’s, industry, scientific, recreational fishery, conservation, and State members.
The Authority consulted with the Committee on a proposed Direction during 8-13 March 2012. The Committee was unable to provide consensus support for the prohibition of gillnet fishing in the area of high interactions, although the Committee noted the proposal was in accordance with the Authority’s legislative objectives. The Committee Chair, the Authority’s, scientific, conservation members and one industry member supported the continuation of the closure. Two other industry members supported the closure on the basis that dolphin mitigation research would take place. The recreational fishing member did not support the closure while remaining members did not supply comment. Due to timing constraints in March 2012, the Authority registered the secondary Order to continue the regulatory measures to protect dolphins rather than registering a closure Direction. The approach to continue regulatory measures to protect dolphins remains unchanged since the consultation in March 2012.
The Authority will continue to consult with the Committee, and the Shark Resource Assessment Group, 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 approved by the Office of Best Practice Regulation (OBPR ID 13634).
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 the Southern and Eastern Scalefish and Shark Fishery (Closures) Direction No. 5 2012.
Clause 2 Provides that the Direction commences on 1 October 2012.
Clause 3 Provides that the Direction ceases as if revoked on 23 September 2013, unless earlier revoked.
Clause 4 Provides that a term used in the Direction and in the Plan or the Management Act has the same meaning in the Direction as in the Plan or Management Act.
Clause 5 Specifies the persons to whom the Direction applies.
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.