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 (Total Allowable Catch for Quota Species) Determination 2021
The Southern and Eastern Scalefish and Shark Fishery (Total Allowable Catch for Quota Species) 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 11(1) of the Southern and Eastern Scalefish and Shark Fishery Management Plan 2003 (the Management Plan) provides that AFMA must determine a Total Allowable Catch (TAC) for each quota species for a fishing year no later than 31 March immediately before the commencement of the fishing year.
Prior to making this Instrument, AFMA met the requirements of paragraphs 12(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 TAC for each quota species for the 2021 fishing year in the Southern and Eastern Scalefish and Shark Fishery (the Fishery).
In determining a TAC for a quota species under subsection 11(1) of the Management Plan, AFMA must have regard to reference points for the species that AFMA has determined as appropriate for maintaining ecologically viable stocks of these species under section 9 of the Management Plan (subsection 11(2)). AFMA may determine specific TACs for a quota species for particular parts of the area of the fishery (subsection 11(3)). Under subsection 11(4), the determination of a TAC under subsection 11(1) must specify the TAC expressed in whole weight or a specified other weight and must specify the particular parts of the fishery to which the TAC applies.
Background
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
Section 12 of the Management Plan provides that, in determining a TAC 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 12(a)); and take into account advice from the relevant resource assessment group (RAG) about the stock status of a quota species (paragraph 12(b)). AFMA must also take into account all fishing mortality from all sectors within the fishery and overlapping or adjacent fisheries, the ecological implications of harvesting the TAC, the distribution and population structure of the species and the precautionary principle (paragraph 12(c)). AFMA may also consider the views of any other interested person (paragraph 12(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.
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 at RAG meetings for the Fishery quota species listed in the Instrument. 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 for the 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, and applying decision rules contained in the HSF.
Advice from the RAGs and proposed TACs were then considered by the South East Management Advisory Committee (SEMAC) and the Great Australian Bight Management Advisory Committee (GABMAC). SEMAC and GABMAC discussed the TAC recommendations, as well as undercatch and overcatch percentages and determined amounts, which provide for ‘carry over’ or ‘carry under’ of quota between fishing seasons. SEMAC and GABMAC both supported determining the TACs for the Fishery quota species as prescribed in the Instrument, with the exception of silver trevally, for which the Commission have applied a discount factor to the RBC as a precautionary measure due to concerns about the status of the stock.
Recommendations from the relevant meetings of the RAGs and MACs, species summaries and stakeholder submissions 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 (Total Allowable Catch for Quota Species) 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 11(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.
Terms defined in the Act have the same meanings in this Instrument.
Section 6 Determines the TAC for quota species of fish, as listed in the Management Plan, where the TAC applies to fish taken across the whole area of the Fishery (as is described as the ‘area of the fishery’ in Part 1 of Schedule 1 to the Management Plan).
Subsection (1) provides that section 6 applies for the 2021 fishing year commencing on 1 May 2021 and ending on 30 April 2022. This is consistent with the definition of ‘fishing year’ provided in section 3 of the Management Plan.
Subsection (2) determines the TAC for 23 quota species of fish listed in the table. The TAC for 19 of these quota species is determined on the basis of whole weight of fish. The TAC for three species is determined on the basis of ‘trunked weight’ and the TAC for elephant fish is determined on the basis of the weight of those fish ‘trunked, belly flaps removed’.
Section 7 Determines the TAC for quota species of fish, as listed in the Management Plan, where the TAC applies to fish taken in a part of the area of the Fishery as is permitted under subsection 11(3) of the Management Plan.
Subsection (1) provides that section 7 applies for the 2021 fishing year commencing on 1 May 2021 and ending on 30 April 2022. This is consistent with the definition of ‘fishing year’ provided in section 3 of the Management Plan.
Subsection (2) determines the TAC for:
- deepwater shark, basket, on the basis of trunked weight within the gemfish and deepwater shark eastern zone (item 1) and within the gemfish and deepwater shark western zone (item 2);
- gemfish on the basis of whole weight within the gemfish and deepwater shark eastern zone (item 3) and the gemfish and deepwater shark western zone (item 4);
- orange roughy on the basis of whole weight within the GAB Albany zone and GAB Esperance zone (item 5), the Cascade Plateau zone (item 6), the orange roughy eastern zone (item 7), the orange roughy southern zone (item 8), and the orange roughy western zone (item 9); and
- smooth oreo dory on the basis of whole weight within the Cascade Plateau zone (item 10) and areas of the fishery other than the Cascade Plateau zone (item 11).
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 (Total Allowable Catch for Quota Species) 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.
Section 11 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 a Total Allowable Catch (TAC) for each quota species for the fishing year. In determining a TAC for a quota species or a quota species in a particular area of the fishery, AFMA must have regard to reference points for the species that AFMA has determined as appropriate for maintaining ecologically viable stocks of these species under section 9 of the Management Plan. The determination of a TAC must specify the TAC expressed in whole weight or a specified other weight and must specify the particular parts of the fishery to which the TAC applies.
Section 12 of the Management Plan provides that, in determining a TAC 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 12(a)); and take into account advice from the relevant resource assessment group about the stock status of a quota species (paragraph 12(b)). AFMA must also take into account all fishing mortality from all sectors within the fishery and overlapping or adjacent fisheries, the ecological implications of harvesting the TAC, the distribution and population structure of the species and the precautionary principle (paragraph 12(c)). AFMA may also consider the views of any other interested person (paragraph 12(d)).
The Instrument determines the TAC for each quota species for the 2021 fishing year.
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.