Federal Register of Legislation - Australian Government

Primary content

Directions/Other as made
This instrument establishes closures in the Southern and Eastern Scalefish and Shark Fishery and the Small Pelagic Fishery.
Administered by: Agriculture
Registered 20 Apr 2016
Tabling HistoryDate
Tabled HR02-May-2016
Tabled Senate02-May-2016
To be repealed 01 May 2021
Repealed by Self Repealing

EXPLANATORY STATEMENT

 

Issued by the Authority of the

Australian Fisheries Management Authority

 

Fisheries Management Act 1991

 

Southern and Eastern Scalefish and Shark Fishery and Small Pelagic Fishery (Closures) Direction 2016

Subsection 41A(2) of the Fisheries Management Act 1991 (the Management Act) provides that the Australian Fisheries Management Authority (the Authority) may, after such consultation as set out in s41A(2), direct that fishing is not to be engaged in the fishery, or a particular part of the fishery, during a particular period or periods.

The Direction is a legislative instrument for the purposes of the Legislation Act 2003.

The Fisheries

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 Guidelines 2007 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, the amount of fishing gear that may be used and spatial closures.

The Small Pelagic Fishery (the SPF Fishery) extends from the Queensland/New South Wales border, typically outside 3 nautical miles, around southern Australia to a line at latitude 31° south (near Lancelin, north of Perth).  The SPF Fishery is currently divided into two sub areas East and West of latitude 146°30’00”.

Management in the SPF Fishery is achieved through output controls in the form of individually transferable quotas with a Total Allowable Catch determined for each quota species for each fishing year.  The target species in the SPF Fishery are Australian sardine, blue mackerel, jack mackerel and redbait. 

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.

 

Background to the Direction

In pursuing its objectives the Authority is required to ensure that the exploitation of fisheries resources and the carrying on of any related activities are conducted in a manner consistent with the principles of ecologically sustainable development (which include the exercise of the precautionary principle), in particular the need to have regard to the impact of fishing activities on non-target species and the long term sustainability of the marine environment.

Spatial closures are a fisheries management tool used to provide protection to a range of species and/or their habitat. A large number of spatial closures have been implemented to date in the fishery, and as time progresses, new closures are developed and redundant ones are removed.

In February 2013, under subsection 41A (2) of the Fisheries Management Act 1991 (Management Act), the Authority registered the Southern and Eastern Scalefish and Shark Fishery (Closures) Direction No. 1 2013. This direction implements spatial closures to provide protection to various species and their habitat including upper slope dogfish and orange roughy.

Harrisson’s dogfish (Centrophorus harrissoni) and southern dogfish (C. zeehaani) are considered to be significantly depleted in south east Australia and have been listed as conservation dependent under the Environment Protection and Biodiversity Conservation Act 1999. The Authority developed the revised Upper-Slope Dogfish Management Strategy in 2012 to promote the recovery of the harrisson’s and southern dogfish which relies primarily on a network of spatial closures complemented by a range of non-spatial operational measures. The revised closure network included the along-slope and across-slope depth range (200m to 1000m for harrisson’s dogfish, and 200m to 900m for southern dogfish) of the dogfish to account for their movement within their home range. These changes were implemented in the Southern and Eastern Scalefish and Shark Fishery (Closures) Direction No. 1. 2013.

In June 2010 the Authority put in place the Australian Sea Lion Management Strategy (the Strategy). The Strategy was developed to reduce and monitor the interactions between Australian sea lions and gillnets used by Commonwealth shark fishers in the area of the fishery off South Australia. Australian sea lions are classified as a threatened (vulnerable) species under the Environment Protection and Biodiversity Conservation Act 1999.

The Strategy followed a report by the South Australian Research and Development Institute that assessed that high levels of sea lion by-catch mortality were limiting the recovery of most colonies in South Australia. Accordingly, the purpose of the Strategy was to significantly reduce the impact of gillnet fishing on Australian sea lions so as to enable colonies to recovery.

The measures implemented under the Strategy included formal closures around more than 40 sea lions in South Australian waters; the setting of sea lion mortality limits that would trigger additional closures if unacceptable levels of ongoing Australian sea lion interaction occurred; and a review of gillnet fishing practices.

The Southern and Eastern Scalefish and Shark Fishery (Closures) Direction No. 7 2013 was registered in May 2013 and continued the spatial closures under the Strategy.

In 2014, the Authority undertook a review of historic closures within the Southern and Eastern Scalefish and Shark Fishery and made recommendations to retain, remove or amend closures based on their management objectives and whether these were still being met and not duplicated by other closures put in place by the Authority or other jurisdictions.

The Authority made the Southern and Eastern Scalefish and Shark Fishery (Closures) Direction (No. 1) 2015 in April 2015 which replaced the Southern and Eastern Scalefish and Shark Fishery Closures Direction No. 1 2013 and the Southern and Eastern Scalefish and Shark Fishery (Closures) Direction No. 7 2013.  The Direction incorporated the closures of the previous Directions with minor amendments to the areas of waters in the Schedules.

 

The Direction

The Southern and Eastern Scalefish and Shark Fishery and Small Pelagic Fishery (Closures) Direction 2016  replaces the Southern and Eastern Scalefish and Shark Fishery Closures Direction No. 1 2015 and the Southern and Eastern Scalefish and Shark Fishery (Closures) Direction No. 5 2013.  The Direction applies to all Statutory Fishing Right holders in the Southern and Eastern Scalefish and Shark Fishery and the Small Pelagic Fishery and those operating on behalf of these concession holders. The Direction incorporates the closures of the previous Directions with the following amendments:

·           No. 1 2015 Schedule 3 – St Helen’s Hill closure,  originally implemented in 2006 to protect orange roughy, has been removed because it became redundant when targeted fishing  for orange roughy was resumed in the eastern orange roughy zone. Schedule 3 also applied a dogfish trigger for non-trawl fishing and if triggered the operator was excluded from fishing in the Schedule 3 closure for 12 months. In February 2016 the Authority received advice that the removal of Schedule 3 and the trigger would have no material impact on dogfish populations or the Upper-Slope Dogfish Management Strategy.

·           No. 1 2015 Schedule 10 – West Coast Tasmania Shark Boat Statutory Fishing Right and Gillnet Depth Closure has been removed. The closure was implemented because large school shark were historically targeted in this area, however, targeting of school shark is now prohibited and there are several measures to allow rebuilding to occur.

·           No. 1 2015 Schedule 15 – South East Trawl Deep Water Closure has been amended to remove an Orange Roughy Management Area that is open to trawling. In February 2016 the Authority received advice that opening that part of Schedule 15 would not impact on rebuilding of upper-slope dogfish populations, and that the area was not regarded as habitat in the gulper shark assessment.

·           No. 1 2015 Schedule 38 – Pedra Branca Orange Roughy Management Area has been amended to include all of the area used in the eastern zone stock assessment. Schedule 38 also extended into the Huon Marine Protected Area which is closed to trawl fishing and this protected area has been removed.

·           No. 5 2013 Schedule 1 – Shark Hook and Gillnet Deepwater Closure has been amended to only apply to gillnet fishing. The closure was implemented because large school shark were historically targeted in this area, however, targeting of school shark is now prohibited and there are several measures to allow rebuilding to occur.

·           No. 5 2013 Schedule 2 – Automatic Longline Shallow Water Closure has been amended to only apply to scalefish hook SFR holders. This change allows operators fishing under the authority of a gillnet or hook permit to fish for shark using automatic longlines.

·           Clauses have been inserted to exempt holders of Small Pelagic Fishery concessions from the prohibition on fishing relating to several areas. 

Schedule 34 is an exclusion to Schedule 15. This is to allow for targeted fishing for orange roughy in this area. In 2014, an updated Tier 1 assessment was conducted which identified that orange roughy stocks in the Eastern Zone had rebuilt to 26 per cent of female spawning biomass. After consultation with stakeholders, the Authority’s Commission set a commercial TAC for orange roughy in the Eastern Zone for the 2015-16 and 2016-17 fishing seasons.

This Direction is consistent with the Authority’s objectives. This includes the objective of ensuring that the exploitation of fisheries resources is conducted in a manner consistent with the principles of ecologically sustainable development (which include the exercise of the precautionary principle) as well as maximising the net economic returns to the Australian community from the management of Australian fisheries.

 

Regulation Impact Statement

 

The Office of Best Practice Regulation has previously advised that a Regulation Impact Statement is not required for this instrument, 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

This legislative instrument does not infringe any of the applicable rights or freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Accordingly, in the Authority’s assessment, this legislative instrument is compatible with human rights and a declaration is attached.

Consultation

Subsection 41A(2) of the Management Act provides that, before giving a direction, the Authority must consult the Management Advisory Committee and consider their views.

The Authority has consulted extensively with scientific experts, the fishing industry, CSIRO, the Department of Agriculture and Water Resources and the Department of the Environment in developing the closure network implemented under the closure direction. 

In accordance with subsection 41A(2) of the Management Act, the Authority has consulted with the South East Management Advisory Committee on the contents of the Direction.

 

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 and Small Pelagic Fishery (Closures) Direction 2016.

Clause 2    Provides that the Direction commences on 1 May 2016.

Clause 3    Provides that the Direction is repealed on 1 May 2021, unless earlier revoked.

Clause 4    Provides definitions for certain terms mentioned in the Direction and that terms used in the Direction that are defined in the Plan and the Management Act, have the same meanings they have in the Plan and Management Act.

Clause 5    Specifies the persons to whom the Direction applies.

Clause 6    Directs that fishing is not to be engaged in using specific methods in specified areas as detailed in Schedules 1 through 37.

Clause 7    Specifies the schedules to which exemptions apply in relation to holders of Small Pelagic Fishery concessions.

Clause 8    Specifies the schedules to which exemptions apply in relation to Orange Roughy.

Clause 9    Specifies the schedules to which exemptions apply in relation to the hydraulic hand reel droplining method.

Clause 10  Provides for the revocation of the Southern and Eastern Scalefish and Shark Fishery (Closures) Direction No. 1 2015 and the Southern and Eastern Scalefish and Shark Fishery (Closures) Direction No. 5 2013.

Schedule 1 prescribes the area of the Murat Bay closure.

Schedule 2 prescribes the area of the Bass Strait - Trawl Closure.

Schedule 3 prescribes the area of the Head of the Great Australian Bight Closure.

Schedule 4 prescribes the area of the East Coast Deepwater Trawl Sector Exclusion Zone closure.

Schedule 5 prescribes the area of the South Australian Gillnet Closure - Backstairs Passage.

Schedule 6 prescribes the area of the South Australian Shark Closure - Kangaroo Island.

Schedule 7 prescribes the area of the South Australian Shark Closure - Victor Harbor to the Victorian Border.

Schedule 8 prescribes the area of the Freycinet Commonwealth Marine Reserve Closure.

Schedule 9 prescribes the area of the Murray Commonwealth Marine Reserve Closures.

Schedule 10 prescribes the area of the Commonwealth Gulper Shark Closure - Southern Dogfish.

Schedule 11 prescribes the area of the Gulper Shark Closure – Endeavour Dogfish.

Schedule 12 prescribes the area of the Gulper Shark Closure – Harrison’s Dogfish.

Schedule 13 prescribes the area of the South East Trawl Deep Water Closure.

Schedule 14 prescribes the area of the Eastern South Australia Trawl Closure.

Schedule 15 prescribes the area of the Portland Area Trawl Closure.

Schedule 16 prescribes the area of the GAB Deepwater Closure - Central East Zone.

Schedule 17 prescribes the area of the GAB Deepwater Closure - Salisbury Canyon.

Schedule 18 prescribes the area of the GAB Deepwater Closure - Far West.

Schedule 19 prescribes the area of the GAB Orange Roughy Zone - Albany.

Schedule 20 prescribes the area of the GAB Orange Roughy Zone - Bremmer.

Schedule 21 prescribes the area of the GAB Orange Roughy Zone - Humdinger West.

Schedule 22 prescribes the area of the GAB Orange Roughy Zone - Humdinger/Magic.

Schedule 23 prescribes the area of the GAB Orange Roughy Zone - Lomvar Gully.

Schedule 24 prescribes the area of the GAB Orange Roughy Zone - United Nations.

Schedule 25 prescribes the area of the GAB Orange Roughy Zone - The Knob.

Schedule 26 prescribes the area of the GAB Orange Roughy Zone -Racetrack/Hamburger.

Schedule 27 prescribes the area of the GAB Orange Roughy Zone - Kangaroo Island Hill.

Schedule 28 prescribes the area of the GAB Far West Gulper Shark Closure.

Schedule 29 prescribes the area of the Barcoo and Taupo Seamount’s Closure.

Schedule 30 prescribes the area of the Queensland and Brittania Seamount’s Closure.

Schedule 31 prescribes the area of the Derwent Hunter Seamount Closure.

Schedule 32 prescribes the area of the Port MacDonnell Closure.

Schedule 33 prescribes the area of the Murray Dogfish Closure.

Schedule 34 prescribes the area of the Pedra Branca Orange Roughy Management Area.

Schedule 35 prescribes the area of the Australian Sea Lion Closures.

Schedule 36 prescribes the area of the Gillnet Deepwater Closure.

Schedule 37 prescribes the area of the Automatic Longline Shallow Water Closure.

 

 

 

 


 

 

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 and Small Pelagic Fishery (Closures) Direction 2016

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
The instrument closes nominated areas to various methods of fishing for holders of fishing concessions in the Southern and Eastern Scalefish and Shark Fishery and the Small Pelagic Fishery. The instrument revokes two prior Directions but continues many closures in place under the previous Directions. 

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.