Southern and Eastern Scalefish and Shark Fishery (Overcatch and Undercatch) Determination 2021

Administered by Department of Agriculture, Fisheries and Forestry

Legislation au F2021L00298 Not in force Legislative Instrument

Legislation content

EXPLANATORY STATEMENT

Issued by authority of the Australian Fisheries Management Authority

Fisheries Management Act 1991

Southern and Eastern Scalefish and Shark Fishery Management Plan 2003

Southern and Eastern Scalefish and Shark Fishery (Overcatch and Undercatch) Determination 2021

The Southern and Eastern Scalefish and Shark Fishery (Overcatch and Undercatch) Determination 2021 (the Instrument) is a legislative instrument for the purposes of the Legislation Act 2003.

Subsection 17(5) of the Fisheries Management Act 1991 (the Act) provides that a plan of management made under the Act is to set out, amongst other things, the objectives of the plan of management and measures by which the objectives are to be attained.

Paragraph 17(6)(aa) of the Act provides that a plan of management made under the Act may provide for the Australian Fisheries Management Authority (AFMA) to determine the fishing capacity permitted for the fishery or a part of the fishery in respect of a particular period or periods.

Subsection 24(1) of the Southern and Eastern Scalefish and Shark Fishery Management Plan 2003 (the Management Plan) provides that AFMA must determine amounts and percentages for sections 22, 22A and 23 for each quota species for the fishing year, no later than 31 March, immediately before the commencement of the fishing year. These provisions concern the calculation of undercatch and overcatch.

Prior to making this Instrument, AFMA met the requirements of paragraphs 24(3)(a) to (c) of the Management Plan. Further detail as to how these requirements were met is outlined in detail below.

Purpose

The Instrument determines the amounts and percentages for each quota species in relation to undercatch and overcatch for the 2021 fishing year. Undercatch and overcatch provides for ‘carry over’ or ‘carry under’ of quota between fishing seasons thereby allowing fishers the flexibility to catch a certain amount of fish over or under their quota, and debit or credit this to or from their next season’s fishing quota.

Background

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 made under Part 5 of the Act. Those arrangements vary the application of the Offshore Constitutional Settlement with respect to fisheries jurisdiction. 

Management in the Fishery is mainly through output controls in the form of TAC limits set under the Act, pursuant to the Management Plan, and in accordance with the Commonwealth Fisheries Harvest Strategy Policy and the specific Southern and Eastern Scalefish and Shark Fishery (SESSF) Harvest Strategy Framework (HSF). Input controls are also used, which include a limit on the number of boats that operate in each sector of the Fishery, as well as gear restrictions such as limits on mesh size and the amount of fishing gear that may be used.

Consultation

Subsection 24(3) of the Management Plan provides that, in determining an amount or percentage for a quota species for a fishing year, AFMA must consult with any relevant management advisory committee (MAC) and have regard to any view expressed in that consultation (paragraph 24(3)(a)); take into account advice from the relevant resource assessment group (RAG) about the stock status of a quota species (paragraph 24(3)(b)); and must take into account the precautionary principle (paragraph 24(3)(c)). AFMA may also consider the views (if any) of any interested person (paragraph 24(3)(d)).

AFMA has established RAGs and MACs to assist AFMA in the performance of its functions. Notably, the functions of MACs established by AFMA include the function of being a liaison body between AFMA and persons engaged in a fishery (pursuant to paragraph 57(2)(a) of the Fisheries Administration Act 1991 (Administration Act). 

Prior to making this Instrument, AFMA consulted with the Great Australian Bight Resource Assessment Group (GABRAG), the Shark Resource Assessment Group (SharkRAG), the South East Resource Assessment Group (SERAG), and the SESSF Resource Assessment Group (SESSFRAG).

First, a series of species stock assessments were considered and advised upon for the SESSF quota species listed in the Instrument at RAG meetings. The stock assessments are based on the HSF and provide for a recommended biological catch (RBC). The RBC provides the best scientific advice on what the total mortality should be for each species or stock, taking into account fishing and natural mortality and any ecological implications of harvesting the species.

Once the RAGs provided advice on RBCs for the Fishery quota species, AFMA translated the RBCs into proposed TACs. The TAC represents the recommended Commonwealth commercial catch for each species or stock, taking into account the expected mortality from incidental catch, discards, and landings in other jurisdictions from the RBC, and applying decision rules contained in the HSF.

Advice from the RAGs was then considered by the South East Management Advisory Committee (SEMAC) and the Great Australian Bight Management Advisory Committee (GABMAC). SEMAC and GABMAC both supported determining the TACs for the Fishery quota species as well as undercatch and overcatch percentages and determined amounts, which provide for ‘carry over’ or ‘carry under’ of quota between fishing seasons.

Recommendations from the relevant meetings of the RAGs and MACs, and species summaries were provided to the AFMA Commission in making the Instrument.

Regulation Impact Statement

The Office of Best Practice Regulation advised on 30 June 2014 that a Regulation Impact Statement is not required for Instruments of a minor, recurrent or machinery nature, specifically including determinations of fishing capacity (OBPR ID No. 14421). 


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.

Details of the Instrument are set out below:

Section 1 Provides for the Instrument to be cited as the Southern and Eastern Scalefish and Shark Fishery (Overcatch and Undercatch) Determination 2021.

Section 2 Provides that the Instrument commences on 1 May 2021.

Section 3 Provides that the Instrument ceases on 1 May 2022.

Section 4  Provides that the authority to make the Instrument is paragraph 17(6)(aa) of the Act, pursuant to subsection 24(1) of the Management Plan.

Section 5 Defines relevant terms for the purpose of the Instrument.

Subsection (1) provides that the Act is the Fisheries Management Act 1991 and the Management Plan is the Southern and Eastern Scalefish and Shark Fishery Management Plan 2003.

Subsection (2) provides that terms that are defined in the Management Plan have the same meaning in the instrument as they do in the Management Plan.

Section 6 This section determines the percentage of overcatch for the purpose of sections 22 and 22A of the Management Plan, the percentage of undercatch for the purpose of section 23 of the Management Plan, and determines the determined amount for the purpose of section 22A of the Management Plan, for each quota species across the entire area of the fishery for the 2021 fishing year, commencing on 1 May 2021 and ending on 30 April 2022.


Attachment A

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Southern and Eastern Scalefish and Shark Fishery (Overcatch and Undercatch) Determination 2021

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

Subsection 17(5) of the Fisheries Management Act 1991 (the Act) provides that a plan of management made under the Act is to set out, amongst other things, the objectives of the plan of management and measures by which the objectives are to be attained.

Paragraph 17(6)(aa) of the Act provides that a plan of management made under the Act may provide for the Australian Fisheries Management Authority (AFMA) to determine the fishing capacity permitted for the fishery or a part of the fishery in respect of a particular period or periods.

Subsection 24(1) of the Southern and Eastern Scalefish and Shark Fishery Management Plan 2003 (the Management Plan) provides that AFMA must, no later than 31 March immediately before the commencement of a fishing year, determine amounts and percentages for sections 22, 22A and 23 for each quota species for the fishing year. These provisions concern the calculation of undercatch and overcatch.

Subsection 24(3) of the Management Plan provides that, in determining an amount or percentage for a quota species for a fishing year, AFMA must consult with any relevant management advisory committee and have regard to any view expressed in that consultation (paragraph 24(3)(a)); take into account advice from the relevant resource assessment group about the stock status of a quota species (paragraph 24(3)(b)); and must take into account the precautionary principle (paragraph 24(3)(c)). AFMA may also consider the views (if any) of any interested person (paragraph 24(3)(d)).

The Instrument determines the amounts and percentages for each quota species in relation to undercatch and overcatch for the 2021 fishing year. Undercatch and overcatch provides for ‘carry over’ or ‘carry under’ of quota between fishing seasons thereby allowing fishers the flexibility to catch a certain amount of fish over or under their quota, and debit or credit this to or from the next fishing year’s fishing quota.

Human rights implications

This Legislative Instrument does not engage any of the applicable rights or freedoms.

Conclusion

This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.

 

Overview

The Southern and Eastern Scalefish and Shark Fishery (Overcatch and Undercatch) Determination 2021 was enacted to address the need for setting specific quotas and permissible catch variations for quota species in the Southern and Eastern Scalefish and Shark Fishery for the 2021 fishing year. This legislation was enacted by the Australian Fisheries Management Authority (AFMA) under the authority granted by subsection 17(6)(aa) of the Fisheries Management Act 1991. The policy objective of this determination is to ensure sustainable management of fish stocks while providing flexibility to fishers through the mechanisms of undercatch and overcatch, allowing for the carryover or carryunder of quota between fishing seasons. The determination is essential for maintaining the balance between conservation and commercial fishing interests within the fishery.

Scope and Application

The Southern and Eastern Scalefish and Shark Fishery (Overcatch and Undercatch) Determination 2021 applies to the Southern and Eastern Scalefish and Shark Fishery, which encompasses 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. This fishery operates in both Commonwealth and State waters and is managed under the Fisheries Management Act 1991, with specific management directives set out in the Southern and Eastern Scalefish and Shark Fishery Management Plan 2003. The determination applies to entities involved in the fishery, including fishing vessels and operators, as well as the Australian Fisheries Management Authority (AFMA), which is responsible for determining the fishing capacity permitted for the fishery and setting the amounts and percentages for undercatch and overcatch for each quota species. The determination is effective for the 2021 fishing year, running from 1 May 2021 to 1 May 2022. AFMA must consult with relevant management advisory committees and resource assessment groups when determining these amounts and percentages, and may also consider views from interested parties. The Instrument provides flexibility to fishers by allowing them to carry over or under a certain amount of fish from one fishing season to the next, thereby managing quota within the fishery more effectively.

Key Provisions

The Southern and Eastern Scalefish and Shark Fishery (Overcatch and Undercatch) Determination 2021 (the Instrument) outlines the key provisions for managing overcatch and undercatch in the Southern and Eastern Scalefish and Shark Fishery for the 2021 fishing year. The Instrument, which is a legislative instrument made under the Fisheries Management Act 1991 (the Act), sets the percentage of overcatch and undercatch and the determined amount for each quota species for the fishing year, which runs from 1 May 2021 to 30 April 2022 (Section 6). This determination is crucial for managing the fishery, as it allows for the flexibility of carrying over or under quota between fishing seasons, thereby providing fishers with some leeway in their catch limits. The Instrument is based on the best scientific advice from resource assessment groups and consultations with management advisory committees and interested parties. The Instrument imposes several obligations on the Australian Fisheries Management Authority (AFMA). Firstly, AFMA must determine the amounts and percentages for undercatch and overcatch for each quota species by 31 March each year (subsection 24(1) of the Southern and Eastern Scalefish and Shark Fishery Management Plan 2003). In making these determinations, AFMA must consult with relevant management advisory committees and consider their views, as well as advice from resource assessment groups regarding the stock status of quota species (subsection 24(3)(a)-(c) of the Management Plan). Additionally, AFMA may consider the views of any interested parties (subsection 24(3)(d) of the Management Plan). These requirements ensure that the determinations are based on the best available scientific and stakeholder advice. Failure to comply with the provisions of the Instrument could have legal consequences. While the Instrument itself does not specify offences or penalties for non-compliance, breaches of the overarching Fisheries Management Act 1991 may result in civil or criminal penalties. For example, under the Act, individuals or entities that exceed their allocated quota could be subject to fines or other penalties as determined by the courts. Additionally, AFMA has the authority to take enforcement actions, such as issuing infringement notices or pursuing prosecutions for serious breaches. The specific penalties for such offences would be determined in accordance with the relevant provisions of the Fisheries Management Act 1991 and any applicable regulations or guidelines.

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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.