Memorandum of Understanding

Between the Commonwealth of Australia, the Australian Fisheries Management Authority and the state of Victoria  with respect to the fisheries in waters relevant to Victoria.

Recitals:

1. The Parliament of the Commonwealth of Australia has enacted the Fisheries Management Act 1991(the Management Act) and the Fisheries Administration Act 1991 (the Administration Act) and under the Administrative Arrangements the Minister for Resources and Energy has ministerial responsibility for both those Acts.
2. The Australian Fisheries Management Authority (AFMA) is a Commonwealth statutory authority established under the Administration Act and is responsible for the management of fisheries on behalf of the Commonwealth.
3. The Parliament of the State of Victoria has enacted the Fisheries Act 1968 and the Fisheries Act 1995 and the Minister for Agriculture and Resources has ministerial responsibility for those Acts which are administered by the Department of Natural Resources and Environment (DNRE).
4. The Commonwealth, AFMA and the State of Victoria wish to describe the working relationship between themselves, with regard to:

   (a) cooperation in the management of fisheries resources III waters relevant to Victoria;

   (b) the control of bycatch of species that would otherwise be managed under Victorian jurisdiction taken by fishers operating under a fishing concession granted by AFMA; and

   (c) the control of bycatch of species that would otherwise be managed under Commonwealth jurisdiction taken by fishers operating under a fishing concession granted by DNRE.

5. The parties recognise the responsibilities, respect the integrity and acknowledge the professional capabilities of each of the parties and will afford such assistance and advice to each other as is necessary and is able to be provided to facilitate the effective accomplishment of the stated objectives.

6. The parties acknowledge that this Memorandum supplements the OCS Arrangements for fisheries resources in waters relevant to Victoria and that any departure by either party from the terms or spirit of this Memorandum may fundamentally alter the overall management arrangements for these fisheries and trigger consideration by the other party of initiating either a withdrawal or variation of the OCS Arrangements.
7. The parties acknowledge that this Memorandum shall in no way unlawfully restrict or otherwise unlawfully affect the unfettered discretion of the parties to exercise their functions under Commonwealth and Victorian law.

Now the parties hereby agree that they intend to apply the following arrangements to supplement the OCS Arrangements with respect to the management of fisheries in waters relevant to Victoria.

Commencement

1. This Memorandum commences at 0.00 hours on I November 1997.

Interpretation

1. (a) In this Memorandum:

"bycatch" means any fish or other aquatic life other than target species that is taken with the authorised fishing gear;

"ecologically sustainable development" means development carried out in a way that maintains biodiversity and the ecological processes on which fisheries resources depend and that maintains and improves the total quality of present and future life;

"fishing concession" means any State or Commonwealth statutory fishing right, permit, licence or authority allowing participation in a fishery;

"global TAC" means a total annual allowable catch set for the taking of a single stock by all fishing methods;

"OCS Arrangement" means an arrangement under section 72 of the Fisheries Management Act 1991 and under subsection 9H(l) of the Fisheries Act 1968 and the Fisheries Act 1995;

"possession limit" means the maximum number of, or weight of, bycatch fish which can be taken using the boat, or carried on board the boat, named on the fishing concession on any one trip;

"trip" means a voyage by a boat proceeding to and from, or through, the area of the fishery for the purposes of fishing;

"waters relevant to Victoria" has the same meaning as it has in the OCS
arrangements.

1. (b) The reference source for scientific names used in the OCS Arrangements and this Memorandum is "The Fishes of Australia's South Coast", edited by MF Gomon, JCM Glover and RH Kuiter. Any subsequent changes made to the scientific names for species will not invalidate the Arrangements.

Legislation

1. This Memorandum is to be read in conjunction with:
   
   (a)Commonwealth and Victorian legislation, all subordinate legislation and any successor legislation or instruments of legislation, relating to the definition, administration or management of the marine resources in waters relevant to Victoria, including
   
   Fisheries Management Act 1991 (Commonwealth)
   Fisheries Administration Act 1991 (Commonwealth)
   Fisheries Act 1968 (Victoria)
   Fisheries Act 1995 (Victoria)
   
   (b) the OCS Arrangement made in 1997 between the Commonwealth of Australia and the State of Victoria in relation to the trawl fishery to be managed under State law;
   
   (c) the OCS Arrangement made in 1997 between the Commonwealth of Australia and the State of Victoria in relation to the trawl fishery to be managed under Commonwealth law;
   
   (d) the OCS Arrangement made in 1997 between the Commonwealth of Australia and the State of Victoria in relation to the fishery for invertebrates to be managed under State law;
   
   (e) the OCS Arrangement made in 1997 between the Commonwealth of Australia and the State of Victoria in relation to the fishery for finfish to 'be managed under State law;
   
   (f) the OCS Arrangement made in 1997 between the Commonwealth of Australia and the State of Victoria in relation to the fishery for finfish to be managed under Commonwealth law;
   
   (g) the OCS Arrangement made in 1997 between the Commonwealth of Australia and the State of Victoria in relation to the fishery for royal red prawns and associated species to be managed under Commonwealth law.

Objectives

1. The objective of this Memorandum is to support the OCS arrangements referred to in paragraph 3 by:
   
   (a) providing a mechanism for the Minister responsible for administering the Management Act and the Minister responsible for administering the State Act to agree in writing to the maximum quantity of fish that may be taken by way of bycatch from time to time in accordance with a licence or other authority in relation to a fishery;
   
   (b) providing a mechanism for cooperation in the management of the fisheries resources in waters relevant to Victoria having regard to the principles of ecologically sustainable development and the management of bycatch taken in conjunction with target fishing in those waters;
   
   (c) establishing mutually agreed arrangements for the management of certain fisheries;
   
   (d) recognising the importance of fisheries resources to the parties, including existing fisheries and developing fisheries and their management arrangements;
   
   (e) recognising the value of cooperation between the parties in ecologically sustainable development of fisheries resources; and
   
   (f) ensuring individual fishers in a fishery, who come under the other party's jurisdiction as a result of the OCS arrangements, are not treated differently from other fishers in that fishery who were not affected by the arrangements.

Obligations of the Parties

1. In pursuit of the objectives of this Memorandum, and in pursuit of the statutory objectives of each party, the parties undertake to:
   
   (a) make available information, in an appropriate form, related to fisheries of mutual interest including:
   • fishery catch and effort data including data pertaining to bycatch;
   • the results of scientific research including ecological studies, population dynamics, stock distribution, abundance and assessment of sustainable yield;
   • monitoring and surveillance systems for fishing activities in waters relevant to the State of Victoria;
   • economics, marketing, gear technology and other studies relating to fishing activities in waters relevant to the State of Victoria;
   • proposed management regimes for existing and developing fisheries;

   
   (b) cooperate on monitoring and re-assessment of bycatch levels;
   
   (c) cooperate and exchange information on technological developments in the fishing industry;
   
   (d) cooperate in the identification of research, monitoring and surveillance programs;
   
   (e) consult each other on any proposal which would have the effect of significantly expanding the effort in, or otherwise significantly impacting on the management of, a fishery of interest to the other party;
   
   (f) consult each other and gain agreement prior to extending the area of operation of a fisher into an area of water which, prior to the commencement of the OCS Arrangements referred to in paragraph 3 to this Memorandum, was under the jurisdiction of the other party;
   
   (g) adopt complementary management arrangements for shared stocks and consult on the development of management proposals which may impact on that part of the stock managed by the other party;
   
   (h) develop arrangements for the determination of global TACs for shared jurisdiction stocks and for the apportionment of those TACs between different jurisdictions and

(i) take all actions possible to give effect to Victorian Government decisions regarding the establishment of marine protected areas and associated management arrangements in Victorian coastal waters;

j) involve each other in consultation over proposals related to marine protected areas in waters relevant to Victoria seaward of coastal waters.

Commonwealth Possession Limits

1. In pursuit of the objectives of this Memorandum, AFMA undertakes to manage the following possession limits in waters relevant to Victoria and will require fishing concession holders to submit records of retained bycatch species as reasonably requested in writing by Victoria. AFMA also undertakes, where possible, to validate the records pertaining to retained bycatch.
2. CRUSTACEANS -Combined possession limits of 50 kg whole weight of all species of the Phylum Crustacea within which the following possession limits apply to the following species/species groupings:

1. MOLLUSCS - Combined possession limit of 50 kg whole weight of all species in the Phylum Mollusca within which the following possession limits apply to the following species/species groupings:

The Commonwealth has jurisdiction over Family Pectinidae (scallops) in the Bass Strait Central Zone and separate management arrangements apply to this fishery.

1. FINFISH - Combined possession limit of 200 kg whole weight of all species under State jurisdiction by virtue of the OCS arrangements made in 1997 between the Commonwealth of Australia and the State of Victoria in relation to the fishery for finfish to be managed under State law within which the following possession limits apply to the specified species/species groupings:

1. AFMA will place limits on each holder of a Commonwealth fishing concession specifying the possession limits such that it will be an offence under the legislation for the fisher to exceed those limits.
2. Notwithstanding the possession limits §pecified in paragraph 9 of this Memorandum, the holder of a Commonwealth fishing concession to take tuna may use the boat specified on that concession to take:
   
   (i) unlimited amounts of the following genera/species Emmelichthyes, Trachurus, Sardinops, Clupea,Scomber australasicus and Engraulis for use as live bait for their tuna fishing operations on the boat used for taking the bait; and
   (ii) up to three tonnes per trip in total of the following genera/species Emmelichthyes, Trachurus, Sardinops, Clupea, Scomber australasicus and Engraulis for use as dead bait for their tuna fishing operations on the boat used for taking the bait.
3. Catches of bait described above must be for the operator's own use as bait and not for sale or for tuna farm feed and can only be taken using one or more of the following fishing gears:
   (i) Lampara net;
   (ii) lift net; and
   (iii) small scale purse seine.
4. It is intended that the gear to be used under Clause 12 is of a size consistent with the capture of the quantity of bait provided for in this Memorandum. Bait fishing gear may therefore be reviewed and become subject to restrictions on size by agreed amendment to this Memorandum
5. Possession limits other than those specified in this Memorandum, if any, will be determined by agreement in writing between the Victorian Minister for Agriculture and Resources, responsible for theFisheries Act 1995 and the Fisheries Act 1968, and the Commonwealth Minister responsible for the Management Act and specified on either the relevant State or Commonwealth fishing concession.
6. The Commonwealth possession limits set out in this Memorandum may be varied from time to time as agreed between parties.

State Possession Limits

1. In pursuit of the objectives of this Memorandum, Victoria undertakes to manage the following possession limits in waters relevant to Victoria and will require fishing concession holders to submit records of retained bycatch species as reasonably requested in writing by AFMA. Victoria also undertakes, where possible, to validate the records pertaining to retained bycatch.
2. FINFISH - Combined possession limit of 400 kg whole weight of all species under Commonwealth jurisdiction by virtue of the OCS arrangements made in 1997 between the Commonwealth of Australia and the State of Victoria in relation to the fishery for finfish and the trawl fishery to be managed under Commonwealth law within which the following possession limits apply to the specified species/species groupings:

Note: the above species marked with an asterisk* only apply to a holder of a State fishing concession allowing the use of a trawl method.

1. DNRE will place limits on each holder of a State fishing concession specifying the possession limits such that It will be an offence under the legislation for the fisher to exceed those limits, noting that the intent of these limits is to allow incidental catch of these Commonwealth species by State licensed crustacean operators to be landed at historical levels.
2. The state possession limits set out in this Memorandum may be varied from time to time as agreed between parties.
3. In regard to that part of the flathead, silver trevally and school whiting fishery remaining under State jurisdiction by virtue of the OCS arrangements made in 1997 between the Commonwealth of Australia and the State of Victoria, DNRE will implement management arrangements to limit the combined catch of these species to the specified level.

Licensing Arrangements

1. Operators who hold entitlements in two jurisdictions to take the one species, and where a quota management system is in place in one of those jurisdictions, will not be entitled to bycatch provisions under the other jurisdiction for that species. The parties will take necessary action to remove bycatch entitlements in such situations.

Marine Protected Areas

1. For Victorian coastal waters the parties agree to take all actions possible to give effect to Victorian Government decisions regarding the establishment of marine protected areas and associated management arrangements.
2. All parties agree to involve each other in consultation over proposals related to marine protected areas in waters relevant to Victoria seaward of coastal waters.

Recreational Fishing

1. For fish other than tuna and tuna like species, the Commonwealth does not intend to exercise its powers under Commonwealth fisheries legislation to manage the recreational sector without prior consultation and agreement with Victoria on any proposed arrangements. In the absence of formal management arrangements for the recreational sector, Victoria may choose to manage this sector in waters adjacent to its coast in accordance with the State Act and any State constitutional limitations.
2. For tuna and tuna like species, the parties recognise that the Commonwealth is seeking to ensure effective management of recreational fishing in this fishery. However, prior to introducing management controls for the recreational sector of the fishery, the Commonwealth intends to consult with Victoria. The parties recognise that the recreational sector has legitimate interests in maintaining access to tuna and billfish. The parties will seek to agree on any proposed management arrangements for this sector.

Funding Arrangements

1. Each party will bear its own costs in giving effect to this Memorandum, unless otherwise agreed.

Amendment

1. This Memorandum may be varied by written instrument signed by the relevant Ministers and the Chairperson of AFMA.

Revocation

1. This Memorandum may be revoked by mutual agreement with effect from such time as agreed by parties or either party may revoke this Memorandum by giving written notice to the other party that the party giving the notice desires the Memorandum to terminate upon a date specified in the notice, not being earlier than 6 months after the day on which the notice is given.

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Dated this 25 day of October 1997

Signed for and on behalf of the Commonwealth of Australia by the Senator the Hon. WARWICK PARER, Minister for Resources and Energy in the presence of:

Signed for and on behalf of the Australian Fisheries Management Authority by JAMES CARVEL MCCOLL, Chairperson in the presence of:

Signed for and on behalf of Victoria Australia by the Honourable PATRICK JOHN McNAMARA, Minister for Agriculture and Resources, in the presence of