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 Revocation 2017
The Southern and Eastern Scalefish and Shark Fishery (Closures) Direction Revocation 2017 (the Direction) is a legislative instrument for the purposes of the Legislation Act 2003.
Subsection 41A(2) of the Fisheries Management Act 1991 provides, that the Australian Fisheries Management Authority (AFMA) may, after such consultation as set out in s 41A(2), direct that fishing not be engaged in in the fishery, or a particular part of the fishery, during a particular period or periods specified in the direction.
Subsection 41A(3) provides that AFMA may, at any time, by a further direction in writing, vary or revoke a direction given under subsection 41A(2).
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.
The Direction
This Direction revokes temporal and spatial closure arrangements that were imposed to minimise dolphin mortalities in the Coorong area of the fishery adjacent to South Australia. This provides for the application of management arrangements to minimise dolphin mortalities to be implemented across the whole fishery by concession conditions.
Regulation Impact Statement
The Office of Best Practice Regulation advised that a Regulation Impact Statement was not required for this Direction consistent with the agreement in place to cover all regulatory changes deemed to be of a minor or machinery nature.
Statement of compatibility prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
AFMA assesses under section 9 of the Human Rights (Parliamentary Scrutiny) Act 2011 that this legislative instrument is compatible with human rights. AFMA’s Statement of Compatibility is attached to this explanatory statement.
Consultation
The Authority has undertaken consultation regarding marine mammal mortality with industry, environment groups, scientists, CMMWG and SEMAC. It has also undertaken public consultation on the proposed arrangements.
If an instrument is varied or revoked under subsection 41A(3) the requirements in subsections 41A(2) relating to consultation and 41A(2A) requiring a copy of the direction to be sent to each relevant holder of a fishing concession, scientific permit or foreign master fishing licence, do not apply. Therefore, the rule-maker considers the consultation to be appropriate.
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 Revocation 2017.
Clause 2 Provides that the Direction commences on the day after it is registered on the Federal Register of Legislation.
Clause 3 Provides that the Direction revokes the Southern and Eastern Scalefish and Shark Fishery (Closures) Direction (No. 1) 2014 with effect from the commencement of the Direction.
Overview
The Southern and Eastern Scalefish and Shark Fishery (Closures) Direction Revocation 2017 was enacted to address the need for a flexible management approach in mitigating dolphin mortalities within the Southern and Eastern Scalefish and Shark Fishery. This legislative instrument is an amendment to the Fisheries Management Act 1991, introduced by the Australian Fisheries Management Authority (AFMA) and authorised by the Parliament of Australia. The policy objective is to revoke certain closures that were previously implemented in the fishery to minimise dolphin mortalities, in favour of applying concession conditions across the entire fishery to manage such mortalities effectively. This change aims to provide a more comprehensive and adaptable strategy to protect marine life while allowing for continued fishing activities, subject to specific conditions.
Scope and Application
The Southern and Eastern Scalefish and Shark Fishery (Closures) Direction Revocation 2017 is a legislative instrument created under the Fisheries Management Act 1991 and applies to the Southern and Eastern Scalefish and Shark Fishery, covering a vast area of waters from Fraser Island in Queensland, around Tasmania, and to Cape Leeuwin in Western Australia. This fishery operates within both Commonwealth and state waters, necessitating a coordinated approach to management. The revocation of the Direction pertains to the previously imposed temporal and spatial closures designed to minimise dolphin mortalities in the Coorong area of the fishery, which will now be managed through concession conditions applied across the entire fishery. This legislative instrument is applicable to all relevant stakeholders including fishing entities, concession holders, and others operating within the fishery. The revocation of the previous closures aims to streamline the management of dolphin mortalities and ensure consistent application of protective measures throughout the fishery. The instrument does not require a Regulation Impact Statement as it has been deemed of a minor or machinery nature, and AFMA has confirmed its compatibility with human rights.
Key Provisions
The Southern and Eastern Scalefish and Shark Fishery (Closures) Direction Revocation 2017 (Clause 3) revokes the Southern and Eastern Scalefish and Shark Fishery (Closures) Direction (No. 1) 2014. This means that the previous closures that were imposed to minimize dolphin mortalities in the Coorong area are no longer in effect. The revocation is effective from the date the Direction commences, which is the day after it is registered on the Federal Register of Legislation (Clause 2). The Direction is a legislative instrument made under the Fisheries Management Act 1991 (subsection 41A(2)) and is subject to consultation as required by the Act.
Under the Fisheries Management Act 1991, the Australian Fisheries Management Authority (AFMA) has a responsibility to manage the Southern and Eastern Scalefish and Shark Fishery, which includes imposing closures to protect certain species and minimize the impact on the environment. The obligations imposed on AFMA include ensuring that management arrangements are in place to minimize dolphin mortalities across the entire fishery, as well as monitoring and enforcing compliance with the regulations. AFMA must also undertake consultation with relevant stakeholders, including industry, environment groups, scientists, and the South East Marine Advisory Committee (SEMAC), when making changes to the fishery management arrangements.
Failure to comply with the provisions of the Southern and Eastern Scalefish and Shark Fishery (Closures) Direction Revocation 2017 may result in civil or criminal penalties. The specific penalties depend on the nature and severity of the breach. For example, violating a closure provision may result in a fine of up to $22,200 for an individual or $111,000 for a corporation, as well as potential imprisonment for up to two years. In addition, AFMA may take enforcement action against individuals or companies that fail to comply with the regulations, including imposing fines, suspending or cancelling fishing licences, or prosecuting in court.
In summary, the Southern and Eastern Scalefish and Shark Fishery (Closures) Direction Revocation 2017 revokes the previous closures imposed to minimize dolphin mortalities in the Coorong area of the fishery. AFMA has obligations to manage the fishery and ensure compliance with the regulations, and failure to comply may result in civil or criminal penalties. The revocation is effective from the date the Direction commences, which is the day after it is registered on the Federal Register of Legislation.