Explanatory Statement
Fisheries Management Act 1991
Southern and Eastern Scalefish and Shark Fishery Management Plan 2003 Temporary Order 2006 (No. 2)
Subsection 43 (1)(a)(ii) of the Fisheries Management Act 1991 (the Management Act) provides for the Australian Fisheries Management Authority (the Authority) to make a Temporary Order to enable quick action to deal with (inter alia), circumstances where urgent action is required for purposes related to the management of a fishery. Pursuant to section 92(1) of the Fisheries Administration Act 1991, the Authority has delegated it powers and functions under section 43 of the Management Act to the Managing Director of the Authority.
The Southern and Eastern Scalefish and Shark Fishery
The Southern and Eastern Scalefish and Shark Fishery (SESSF) is a multi-method multi-species fishery that lands fresh scalefish and shark for the Australian market and for export. The area of the Fishery stretches south from Fraser Island in southern Queensland, around Tasmania to Cape Leeuwin in southern Western Australia. It comprises a number of historically separate fisheries which had substantial overlap in their areas of operation and species targeted. These fisheries were:
- The South East Trawl Fishery:
- The Gillnet, Hook and Trap Fishery (formerly the South East Non-trawl Fishery and the Southern Shark Fishery); and
- The Great Australian Bight Trawl Fishery.
SESSF also encompasses the Commonwealth Victorian Inshore Trawl Fishery and the East Coast Deepwater Zone which adjoined the area of the South East Trawl Fishery. Together, all of these fisheries produce annual commercial catches with an estimated deemed value of $90 million.
Most of the commercially important species in the fishery are by Total Allowable Catches through Quota Statutory Fishing Rights (SFRs). Quota SFRs are fully tradable and can either be permanently transferred or leased. The exceptions to this are the main target species in the East Coast Deepwater Zone, alfonsino and the three main target species in the Great Australian Bight Trawl Fishery, bight redfish, deepwater flathead and orange roughy.
Background to the fishery
The SESSF Management Plan 2003 (the Plan) was determined by AFMA’s Managing Director on 5 September 2003. The associated Fisheries Management (Southern and Eastern Scalefish and Shark Fishery) Regulations 2004 (the Regulations) were made by His Excellency, the Governor General, on 1 December 2004.
The fishery is managed by a combination of output controls (that limit the amount of fish that can be taken from the fishery) in the form of quota statutory fishing rights and input controls (that limit the number of vessels and type of gear that can be used in the fishery. Operators are required to have a boat SFR to fish in the fishery and quota SFRs to cover their catch of all quota species.
Background to Temporary Order
The SESSF Temporary Order (No.2) is in line with AFMA’s objectives of ecologically sustainable development, the precautionary principle and to implement efficient and cost effective fisheries management on behalf of the commonwealth.
This Temporary Order anticipates the Southern and Eastern Scalefish and Shark Fishery Management Plan 2003 Amendment (No.2) being determined, although it unlikely that the prescribed processes for the determination of the plan amendment will have been completed in time for the 2007 fishing year. Therefore this Temporary Order has picked up one of the key amendments in relation to the extension of the 2007 fishing year to ensure that AFMA can formally determine TACs for all intended species by the 5th December in line with such extended fishing year.
Pursuant to section 43(9) of the FMA if an order is inconsistent with a provision of a plan of management the order overrides the provision and, to that extent, the provision has no effect.
In general terms, this Temporary Order gives effect to:
- the change of fishing year dates and the interim transitional arrangements for the 2007 fishing year;
- the ability for AFMA to set TACs for a 16 month period for the 2007 fishing year; and
- the ability for AFMA to determine TACs for those species currently managed under the 2006 Specified non quota species Temporary Order, which expires on the making of this Order.
Details of Temporary Order
1. Changing definition of ‘fishing year’
The SESSF fishing year is currently defined as a 12 month period which follows the calendar year. After consultation with the three SESSF MACs with no resolution for an agreed date for change the AFMA Board instructed AFMA management to consult in regard to the following fishing year dates:
- the 12 month period between 1 May – 30 April;
- the transitional year of 1 January – 30 April to commence in 2007.
After consultation with the MACs there was no opposition to the above mentioned dates and AFMA management proceeded to draft and consult using these as the default dates for the SESSF Amendments 2006.
As a result the new definition of a fishing year reflects the transitional year and all years in the future –
Fishing year means:
(a) before 1 January 2007 —a calendar year; and
(b) the period commencing on 1 January 2007 and ending at the end of 30 April 2008; and
(c) on or after 1 May 2008 — a period of 12 months commencing on 1 May.
2. Setting of Total Allowable Catch (TAC) in relation to changed ‘fishing year’
Part 3, section 11 of the Plan refers to the determination of a Total Allowable Catch (TAC) in the Southern and Eastern Scalefish and Shark Fishery for all quota species as listed in Schedule 2 of the Plan.
The Plan currently states that AFMA must determine TACs for the following fishing year by 5 December of the previous fishing year. Therefore, this Temporary Order is required to give AFMA the ability to determine TACs for all quota species for the 16 month transitional year while the final preparation and registration of the Southern and Eastern Scalefish and Shark Fishery Management Plan 2003 Amendments (No.1) are occurring. These amendments are due to be registered by the 15th December 2006.
3. Changing various ‘specified non- quota species’ to ‘quota species’
In September 2004 AFMA allocated Individual transferable Quota (ITQ) permits for the below listed species based on the best year of verified catch history from 2002, 2003 and 2004 (until 28 May), based on catch and effort from logbooks. Since this time AFMA has been managing these species under a series of Temporary Orders until such time as these species could be added to Schedule 2 of the Plan and managed as Quota Statutory Fishing Rights.
In December 2005 AFMA commenced managing these species under a Specified Non-Quota Species Temporary Order, with the intention of adding them to schedule 2 of the Plan in 2006. A second Temporary Order of the same substance was determined on 7 June 2006 to commence on 21 June 2006 for a period of 6 months to further allow for this management to continue.
The proposed Plan amendment place these species on the quota list in schedule 2 of the Plan, in order for AFMA to continue managing them under the current permit arrangements.
Accordingly the entire schedule 2 to the proposed Plan amendment in relation to ‘quota species’ are listed in this Temporary Order to ensure consistency with the Plan. It is expected that these Plan amendments will be in place by the 15th December 2006; however this Temporary Order gives immediate effect to the proposed amendment.
Species to be added to schedule 2 –
Deepwater shark Centroscymnus coelolepis
Centroscymnus crepidater
Centroscyllium kamoharai
Centroscymnus owstoni
Centroscymnus plunketi
Dalatias licha
Deania calcea
Deania quadrispinosa
Etmopterus bigelowi
Etmopterus brachyurus
Etmopterus dianthus
Etmopterus dislineatus
Etmopterus evansi
Etmopterus fusus
Etmopterus granulosus
Etmopterus Lucifer
Etmopterus molleri
Etmopterus pusillus
Oreo Allocyttus niger
Allocyttus verrucosus
Neocyttus rhomboidalis
Neocyttus species
Ribaldo cod Mora moro
Smooth oreo dory Pseudocyttus maculatus
Consultation
The provisions in this Temporary Order in relation to the above 3 points mirror identical provisions detailed in the Plan Amendment which is currently being finalised. This is to ensure consistency between the two instruments and the smooth transition between the two management regimes in the 2007 fishing year.
AFMA has previously completed full consultation as required for the draft of the Plan Amendment as prescribed in section 17 of the Act, which include the provisions this Temporary Order.
The period for public comment opened on 20 September 2006, with an advertisement in the Commonwealth of Australia Gazette (No.37 of 20/9/2006), the Australian newspaper (under Public Notices on 20/9/2006), and the mailing of letters to all persons on AFMA’s register of interested parties for the SESSF. The register includes all permit holders in the Fishery. The period for public comment closed on 20 October 2006.
There was only one representation received during the period for public comment in relation to the proposed Plan amendment as a whole and that related to point number 1 above. AFMA gave due consideration to this one representation received.
In addition the Authority has undertaken extensive consultation with the 3 SESSF Management
Advisory Committees (MACs) in regard to the need to apply these management measures listed in this Temporary Order.
Regulation Impact Statement
The Office of Regulation Review (ORR) advised AFMA that a Regulation Impact Statement (RIS) was not required for this Temporary Order and has further advised that AFMA can utilise the same RIS exemption ID as given for the Plan amendments which are to follow (Reference RIS IDs 8470 and 8471).
This Temporary Order ceases to have effect on the earlier of the following:
(a) the commencement of the Southern and Eastern Scalefish and Shark Fishery Management Plan 2003 Amendment 2006 (No.1); or
(b) the day 6 months after the commencement of this order.
In this instance, the Managing Director of the Authority has exercised his power to make this Temporary Order to give affect to the key Plan amendments to allow for the determining of TACs for the extended 2007 fishing year.
This Temporary Order will commence on the day after is registered.
Details of the Temporary Order, which commenced on gazettal, are set out below:
Clause 1 - Clause 1 moves the commencement of the fishing year to 1 May and cease on 30 April (12 month period). The transitional year for this amendment will commence on 1 January 2007 and end on 30 April 2008, resulting in a 16 month fishing year.
Clause 2 – Clause 2 changes the date in which AFMA must set the TAC for each quota species to better reflect the change in fishing year dates in the fishery.
Clause 3 – Clause 3 adds the above mentioned species to Schedule 2 of the Plan. These species will be managed under the current permit conditions as transitional arrangements until such time as the spatial arrangement relating to deepwater species are developed and established across the fishery.