Explanatory statement
Southern Bluefin Tuna Fishery Management Plan Amendment 2008 (No.1)
The Australian Fisheries Management Authority (AFMA) has determined the Southern Bluefin Tuna Fishery Management Plan Amendment 2008 (No. 1) (Plan Amendment) to amend the Southern Bluefin Tuna Fishery Management Plan 1995 (the SBT Plan).
Subsection 17(1) of the Fisheries Management Act 1991 (the Act) provides that, unless the AFMA is of the view that a plan of management is not warranted for a particular fishery, the AFMA must determine written plans of management for each fishery that it manages.
Subsection 20(1) of the Act provides that AFMA may at any time amend a plan of management.
The Southern Bluefin Tuna Fishery
The Southern Bluefin Tuna Fishery (SBTF) is part of the global fishery for Southern Bluefin Tuna (SBT) which is managed by the Commission for the Conservation of Southern Bluefin Tuna (CCSBT). CCSBT is the international body which administers the Convention for the Conservation of Southern Bluefin Tuna (the Convention). The Australian Government manages its component of global fishery through the SBT Plan. The Australian fishery includes all waters if of the Australian Fishing Zone and a high seas fishing zone that is inclusive of the species distribution.
The CCSBT make decisions relevant to the management of the SBTF. The CCSBT is responsible for setting the global total allowable catch of SBT and determines national catch allocations for its Members, for Cooperating Non Members, and also allocates a catch limit to other catching countries. Australia, Japan, New Zealand, Korea and Taiwan are members of the Extended Commission.
Content of the Plan Amendment
General
The Plan Amendment has been made to ensure that the management arrangements for the SBTF are consistent with Australia’s domestic and international obligations and reflect the changing nature of the fishery.
Minor amendments have also been included to update recent changes to AFMA’s address details and to reflect the recent modification of the objectives in the Fisheries Management Act 1991.
Allow AFMA to set multi-year national catch allocations for the SBTF
At the 13th meeting of CCSBT (October 2006) it was agreed that national catch allocations limiting catches from 2007-2009 be adopted by all countries, except Japan. In the case of Japan a lowered allocation of 3000 tonnes will apply until 2011. CCSBT agreed that in exceptional circumstances relating to the stock, allocations could be reviewed. In addition, Australia agreed at CCSBT to review its catch allocation in the future, if further deterioration of the SBT stock calls for such review, or if it finds such review is necessary as a result of its own review of SBT farming operations.
The current SBT Plan does not allow for the national catch allocation to be set for more than one year at a time. This is inconsistent with the decision of CCSBT. In reaching its decision on the 2006/07 national catch allocation AFMA considered that the SBT Plan should be amended to provide the ability to set the national catch allocations into the future in line with decisions of CCSBT with the provision that they can be varied should extenuating circumstances arise. Extenuating circumstances may, among other things, include evidence of further stock deterioration, new scientific advice, changes in CCSBT decisions, to account for an overcatch in the previous year or changes in government policy.
Broaden the basis that AFMA may use CCSBT decisions for setting the national catch allocation
The SBT Plan provides that AFMA can only use the CCSBT decisions for setting the national catch allocation if the decision is made under Article 8(3)(a) of the Convention. This means in years like 2005, where CCSBT made its decision under Article 8(3)(b) of the Convention AFMA must go through the extended process required by the SBT Plan of setting interim, provisional and final catch allocations. This adds considerable expense and creates a great deal of uncertainty for industry when this is not necessary. The provisions of the SBT Plan in relation to interim, provisional and final allocations were designed for years in which the CCSBT reaches no decision at all on national allocations and allows fishing to commence pending further meetings of CCSBT to establish national catch allocations.
The Plan Amendment allows AFMA to use any decision made under Article 8(3) of the Convention for the purposes of determining the national catch allocation
Provision to cover the excess take of fish
The SBTF purse seine sector employs a method of capturing fish and transferring them alive via a tow cage for further grow out in a farm situation where the fish are kept and fed prior to harvest at a later date. The SBT Plan has been developed to control the operation of this fishing method. Like all quota-managed fisheries, operators are required to estimate their catch at sea prior to verifying the weight of fish on return to port. This process is further complicated in the purse seine sector because the fish are held alive in a tow cage and are not landed on a boat, which makes it difficult for fishers to accurately estimate the at sea weight of fish in a tow cage. While the total verified weight process is accurate, towards the end of a fishing season when the national catch allocation is nearly caught, even small errors in estimation at sea can result in capturing fish in excess of Australia’s national catch allocation.
In response to these operational circumstances AFMA and the fishing industry have agreed to undertake a two-year trial to investigate a mechanism to allow a single release of excess fish in an alive and vigorous state to avoid exceeding Australia’s national allocation. The fishing industry, through the Australian Southern Bluefin Tuna Industry Association, have agreed to work together to ensure that there will be no more than one release industry-wide each fishing season following the return of the last tow cage to Port Lincoln. The cost of the tow and release of fish will be a significant cost to industry (in excess of $60,000) and the fishing industry is committed to working to avoid this situation if at all possible and to minimise any amount released. Recognising the financial costs to the industry of the tow and release arrangement, a small amount of no more than 25 tonnes (less than 0.5 percent of the national quota) may be retained and deducted from the quota for the following year if the industry believe it is not cost-effective or practical to release a small quantity of fish.
This approach has been developed to ensure that Australia meets its commitments under the Convention while not preventing Australia from maximising the net economic returns to the Australian community from exploiting the resource. Any release of fish will be conducted under strict monitoring conditions including full observer coverage with any mortality during the tow accounted for under Australia’s national catch allocation.
In recognition of the potential overcatch issue in the longline sector, the Plan Amendment allows for a small amount of overcatch. Key components of the Plan Amendment are:
i) operators must hold quota in the following season to access the overcatch provisions;
ii) those operators (SFR holders or associated entities) in an overcatch provision are unable to nominate a boat for the following season until they repay the overcatch. Any boat proposed to be used by a SFR holder or associated entity which is in an overcatch position cannot be nominated to any SFRs until the overcatch is repaid;
iii) the small overcatch allowance is to cover estimation error or small accidental over-catches. The overcatch would take the form of:
- for the long line sector 500kg of overcatch repaid at 1:1 with anything over 500 kg repaid at 3:1 with provision for prosecution where warranted.
- for the purse seine sector 500kg of overcatch repaid at 1:1; and
- unless participating in the trial release of fish, any overcatch in excess of 500kg is subject to prosecution.
Broaden the basis for the release of live fish
In combination with the revised section to cover any excess take of fish, the Plan Amendment revises section 22C of the SBT Plan is to be amended to broaden the basis upon which fish may be released in an alive and vigorous state. Currently the Plan only allows fish that are alive and vigorous to be released from the purse seine net immediately after capture. The Plan Amendment will allow an operator, responsible for the last tow of the fishing season year, to apply for the release of fish documented under the previous section.
Change the frequency of reviewing the monitoring arrangements from annually to no more than every five years
Section 4A.2(f) of the Plan requires that AFMA review the monitoring mechanisms for the fishery each year.
This provision is more frequent than is required. Reviews are costly (up to $100,000) and CCSBT already scrutinizes monitoring arrangements each year. Recent reviews have had similar outcomes. The Plan Amendment allows for a more appropriate review period, requiring a formal review every five years, with reviews occurring earlier than 5 years if any of the following criteria are triggered:
- AFMA finds evidence of quota misreporting;
- AFMA agrees with the recommendations of the Southern Bluefin Tuna Fishery Management Advisory Committee (SBTMAC) that there is a need for an evaluation; or
- The Minister recommends that there is a need for an evaluation.
Update AFMA’s address, phone numbers and the economic efficiency objective.
The Plan Amendment omits references to erroneous contact details for AFMA.
The economic objective in the Fisheries Management Act 1991 (FMA) has recently been amended. The Plan Amendment takes into account this change.
Consultation
Section 20 of the Act prescribes that section 17 of the Act applies in relation to amendments to a plan of management in the same way as it applies to the preparation of a new plan of management. Section 17 requires that AFMA must consult with such persons engaged in fishing as appear to be appropriate, and must give due consideration to any representations made to AFMA in connection with the draft plan. AFMA has met all consultation requirements required of it in the preparation of this instrument.
AFMA provided a draft of the Plan Amendment for public comment as prescribed in the Act. The period for public comment opened on 19 October 2007, via advertisements in the Commonwealth of Australia Gazette (No. S211), the Australian newspaper (under Public Notices) and the mailing of letters to all persons on AFMA’s register of interested parties for the SBTF on that date. The register includes all Statutory Fishing Right holders in the SBTF. The period for public comment closed on 19 November 2007.
Five submissions were received during the period for public comment. AFMA gave due consideration to the submissions that were received in respect of the draft Plan Amendment. In response to the public comments AFMA modified the draft Plan Amendment to:
- increase the overcatch amount for the longline and purse seine sector from 100kg to 500kg; and
- fully replicate the wording of new economic objective from the FMA in Clause 4B.2 (the draft amendment had unintentionally excluded several words).
The Southern Bluefin Tuna Fishery Management Advisory Committee (SBTMAC) has been consulted throughout the development of the Plan Amendment. After they were consulted about the representations received, the SBTMAC endorsed AFMA’s proposed responses to the representations and recommended that AFMA proceed with determining the draft Plan Amendment.
Assessment by the Office of Best Practice Regulation
On the basis of a preliminary assessment the Office of Best Practice Regulation advised AFMA that no further analysis (in the form of a Business Cost Calculator Report or Regulation Impact Statement) is required for the Plan Amendment. This is because the proposal will have no/low impact on business, and appears to impose no or low compliance costs (OBPR ID: 2007/9345).
Determination and acceptance
AFMA has determined the Plan Amendment to amend the SBT Plan following consultation with such persons engaged in fishing as appear appropriate and following due consideration of the representations received. AFMA is satisfied that the Plan Amendment pursues its objectives and is consistent with its corporate plan and current annual operational plan.
AFMA has informed the Minister of the consultations that were conducted and of representations that were received. The Minister is satisfied that AFMA gave due consideration to the representations received, conducted adequate consultations and that the Plan Amendment is consistent with AFMA’s corporate plan and current annual operational plan. The Minister has accepted the Plan Amendment.
The Plan Amendment is a legislative instrument under the Legislative Instruments Act 2003 and has been registered on the Federal Register of Legislative Instruments.
The Amendments
Details of the Plan Amendment are set out below.
SCHEDULE 1
Item 1. This item inserts a definition for “national catch allocation”. The term “national catch allocation” is used throughout the SBT Plan but is not defined in the Plan. This new definition clarifies the term to remove any doubt for fishers and fisheries managers.
Item 2. This item inserts a definition for “overcatch”. As improved provisions to manage the excess take of fish are inserted by this Plan Amendment, a definition of the term overcatch has been provided to identify overcatch as any tuna taken in excess of the holder’s quota in a season.
Items 3 and 4. This item removes subclause 4A.2(f) and inserts a revised clause to require that the monitoring measures be reviewed once every five years or more frequently subject to a range of exceptional circumstances. The SBT Plan currently requires an annual review of monitoring measures. This is more frequent than is required. A five year review together with pre-agreed criteria which would trigger an earlier review has been agreed through consultation.
Item 5. This item substitutes the objective relating to maximising net economic returns with the new wording for the corresponding objective contained in the amended Fisheries Management Act 1991 and facilitates improved consistency with the primary legislation.
Item 6. This item is corrects the grammar used in clause 8.1(b) by replacing the word “a” with the word “the”.
Item 7. This item extends the provisions of section 9.1(e) of the SBT Plan which lists who is entitled to fish in the fishery to provide for persons utilising the new provisions in Items 8, 9 and 14 in relation to the excess take of fish.
Item 8. This item broadens existing arrangements to cover the excess take of quota. The item will
i) extend the provisions in clause 9A of the Plan to take in excess of quota to include the longline sector of the fishery, which up until now did not have any access to these arrangements;
ii) provide for a small overcatch allowance in recognition of small estimation errors or small accidental overcatches; and
iii) reduce the period for which quota must be obtained to cover any overcatches from 28 days to 14 days from the time the verified count has been taken as part of the measures to trial the release of live fish. This shortened reconciliation period will assist in ensuring that fishers are aware of current catch levels and available quota.
Item 9: This item allows AFMA to refuse an application to nominate a boat on the Register under a holder’s Statutory Fishing Right if the holder or boat was involved in an overcatch in the previous season and has not repaid that overcatch.
Item 10 In line with recent decisions of CCSBT, this amends subclause 17.2 to allow AFMA to set multi-year national catch allocations for the SBT fishery. The item also provides that AFMA can, prior to the commencement of a SBT fishing season, vary the National Catch Allocation for that season subject to a range of extenuating circumstances. Extenuating circumstances may include evidence of further stock deterioration, new scientific advice, changes in CCSBT decisions, to account for an over-catch in the previous year or changes in government policy. Should AFMA vary the National Catch Allocation the same processes of consultation for the making of the National catch Allocation will apply.
Item 11. This item inserts a footnote advising that that a determination mentioned in clause 17 is a disallowable instrument. Clause 17 deals with determining Australia’s national catch allocation and provisional national catch allocation.
Item 12. This item inserts a footnote defining what a “verified count” is in the context of subclause 22B.2.
Item 13. This item substitutes the existing heading for Clause 22C, “Release of fish”, with a new heading, “Release of fish – immediately after capture”. The clause deals with the release of fish immediately after capture and while still on the fishing grounds, as distinct from a release made after fish have been towed near-shore (see Item 14).
Item 14. This item enables the release of live fish as part of a trial of a method to avoid Australia exceeding its national allocation from CCSBT. Under this provision a holder of a Statutory Fishing Right (SFR) may, subject to approval by AFMA, release alive and vigorous SBT after the fish have been towed away from the fishing grounds but prior to their transfer to feeding pens. The cost of tow-back and release would be substantial so this amendment also allows for a restricted overcatch to be retained of up to 25 tonnes in total across all SFR holders in any one year.
Item 15. For drafting purposes this amendment inserts a definition of a weight measurement referenced in the SBT Plan. The term defined is ‘relevant weight’ which is, in relation to a tow operation, means the total of the following:
(a) the weight of Southern Bluefin Tuna determined by a verified count conducted for the tow operation;
(b) the weight of any Southern Bluefin Tuna likely to have died during the take and tow operation; and
(c) the weight of any Southern Bluefin Tuna likely to have died during any subsequent release operation.
Item 16. This item inserts the term, ‘relevant weight’ in subclause 22D.1 following the reference introduced by Amendment 15.
Item 17. This item inserts the term, ‘relevant weight’ in subclause 22D.2 following the reference introduced by Amendment 15.
Item 18. This item Amends subclause 35.3 to remove outdated contact details for AFMA.
Item 19. This item is a technical amendment and removes subclause 36.3 to remove outdated contact details for AFMA, consistent with Item 18.