Listing of migratory shark species

The Department of the Environment, Water, Heritage and the Arts (DEWHA) has advised that on 29 January 2010, Porbeagle, Longfin Mako and Shortfin Mako sharks will be listed as migratory species under the Environment Protection and Biodiversity Protection Act 1999 (EPBC Act). This is a mandatory legal requirement following their listing under the Convention on Migratory Species - an international conservation agreement to which Australia is a party.

Commercial fishing operations will not be permitted to take these species unless they are acting in accordance with management arrangements accredited under the EPBC Act.  All AFMA-managed fisheries are accredited. DEWHA is currently reviewing the accreditation of AFMA-managed fisheries to ensure that they provide adequate protection for these shark species.

More details on the listing is available on the DEWHA website.

2009 Federal Court decisions

During 2009 AFMA was involved in two significant cases in the Federal Court which challenged the validity of delegated legislation under the Fisheries Management Act 1991.

In March, the Federal Court refused a challenge by a permit holder in the Eastern Tuna and Billfish Fishery that part of the Management Plan relating to SFR allocation was irrational, unreasonable or capricious and therefore invalid. The Court decided that the test of validity for delegated legislation was whether there was a real connection between the Management Plan and the purpose for which parliament conferred the authority on AFMA to determine the plan.

The second case was an appeal by AFMA against a decision of the SFR Allocation Review Panel, who wrongly departed from the formula in the Southern and Eastern Scalefish and Shark Fishery Management Plan to vary a fisher’s fishing permit value, thus altering AFMA’s provisional allocation of SFRs based on the formula. The Court held that the Panel was bound to follow the fisheries management plan and give effect to the allocation formula in the plan and could not enquire into the formula itself. 

In both cases, the Court upheld the validity of the management plan as a legislative instrument, made under and in accordance with the Act.

Both cases indicate the difficulty in seeking to challenge the terms and specific requirements of delegated legislation, as opposed to challenging an administrative decision, on the basis of unreasonableness or irrationality. To succeed, an applicant must demonstrate the absence of a “real connection” between the delegated legislative instrument being challenged and the purpose parliament had in authorising the making of that instrument. 

For more information, see Lamason v Australian Fisheries Management Authority [2009] FCA 245 (20 March 2009) and Australian Fisheries Management Authority v Gilmore [2009] FCA 1369 (24 November 2009).

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Calling all future seafood industry leaders

Nominations are open for the annual National Seafood Industry Leadership Program 2010.

The program, now in its ninth year, is designed for people wishing to take up leadership roles within the seafood industry. It is delivered through funding from the Fisheries Research and Development Corporation (FRDC), and run by Rural Training Initiatives Pty Ltd.

The National Seafood Industry Leadership Program is the only national industry-specific leadership program, and was initially designed in consultation with seafood industry people. There are now in excess of ninety graduates of all ages and from all sectors of the industry including processing, fishing, extension, exporters, importers, marketing, deckhands and employees.

This year's program will be delivered through three residential sessions:

First Residential: 30 March - 1 April 2010 – Hobart
Second Residential: 29 June - 1July 2010 – Sydney
Third Residential: 21 -23 September 2010 – Canberra

To download the program outline and application forms, visit the Rural Training Initiatives website. For more information, please contact Jill Briggs, Rural Training Initiatives, on (02) 6035 7284 or 0409 455 710.

The closing date for nominations is 8 February 2010.

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Other fishery updates

ANTARCTIC FISHERIES

Heard Island and McDonald Island (HIMI) trawl survey
Fishing operations for the 2009/10 season commenced mid-December in the Heard Island and McDonald Island (HIMI) fishery targeting Patagonian Toothfish and Mackerel Icefish. The trawler Southern Champion is successfully targeting toothfish and will undertake a short survey to assess the abundance of Mackerel Icefish on the Heard Island plateau between fishing operations.

For further information on the trawl survey please contact Peter Neave, Manager, Antarctic Fisheries on
(02) 6225 5302 or email Peter.Neave@afma.gov.au.

EASTERN TUNA AND BILLFISH FISHERY (ETBF)

ETBF Independent Allocation Advisory Panel (IAAP) final report available
The final report of the Eastern Tuna and Billfish Fishery (ETBF) Independent Allocation Advisory Panel (IAAP) was approved by the AFMA Commission in October 2009 and is available on AFMA's website.

The report recommends the approach AFMA should take when converting the current effort Statutory Fishing Rights (SFRs) to quota SFRs. The Commission has considered the final report and made the following decisions:

• Boat SFRs will be retained in the fishery;

• Each longline SFR holder will receive one individual transferable quota (ITQ) SFR for each of the 5 quota species for each longline SFR held;

• Each minor line SFR holder will receive ITQ SFRs as if they hold 455 longline SFRs;

• Eastern skipjack tuna purse seine operators will be included in the allocation of ITQ SFRs and that this replace their current bycatch limits;

• Each skipjack tuna purse seine operator will receive ITQ SFRs as if they hold 455 longline SFRs

For more information on the introduction of quota in the ETBF, please contact Trent Timmiss, ETBF Manager, on (02) 6225 5313 or Trent.Timmiss@afma.gov.au.

SOUTHERN BLUEFIN TUNA FISHERY (SBTF)

Catch Documentation Scheme implemented in the SBT Fishery
Purse-seine fishing for Southern Bluefin Tuna off Port Lincoln is now in full swing, with 14 vessels currently on the grounds.

Reports from a number of vessels have indicated good numbers of fish in the 15-20kg range, however due to the variable nature of the weather, only approximately 250 tonnes have been caught to date. It is anticipated that the majority of the Total Allowable Catch (TAC) will be taken in the next 4-6 weeks.

SFR owners and holders are reminded that the Catch Documentation Scheme (CDS) has commenced and all Southern Bluefin Tuna exported or sold domestically need to be tagged, weighed and measured and must be accompanied by the appropriate paperwork.

For more information on the CDS or the SBT Fishery, please contact Matt Daniel, A/g Manager, SBT on
(02) 6225 5338 or Matt.Daniel@afma.gov.au.

WESTERN TUNA AND BILLFISH FISHERY (WTBF)

Grant of Statutory Fishing Rights (SFRs) to commence in the WTBF
The Federal Court has handed down a decision in the Kennedy v AFMA case, finding in favour of AFMA.
Following this decision, AFMA can now proceed with the final SFR grant for the WTBF.

During the court proceedings, a Stay Order was issued preventing AFMA from proceeding with the SFR grant while the case was heard. AFMA will commence the WTBF SFR grant once the Stay Order is removed, which is expected to occur no later than the first week of February 2010. AFMA hopes to complete the grant process and cease the transitional provisions of the Management Plan before the current fishing permits expire on 30 June 2010.

For additional information on the SFR grant process, please contact Trent Timmiss, WTBF Manager, on
(02) 6225 5313 or Trent.Timmiss@afma.gov.au.

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