Fisheries Management (Miscellaneous Fishery) Regulations 2015 (SA)

South Australia Fisheries Management (Miscellaneous Fishery) Regulations 2015 under the Fisheries Management Act 2007

Contents 1 Short title 3 Interpretation 4 Constitution of the fishery 5 Issue of licences 5A Transfer of licence 6 Power of Minister to limit fishing activities 7 Registration 8 Revocation of registration 9 Individual giant crab catch quota system—Northern Zone 9A Individual giant crab catch quota system—Southern Zone 10 Use of agents in fishing activities on shore 11 Periodic returns 12 Provision relating to keeping of records 13 Minister's determinations Schedule 1—Aquatic resources prescribed for Miscellaneous Fishery Schedule 2—Competitive tender procedure for issue of licences 1 Competitive tender procedure Legislative history

1—Short title These regulations may be cited as the Fisheries Management (Miscellaneous Fishery) Regulations 2015. 3—Interpretation (1) In these regulations, unless the contrary intention appears— Act means the Fisheries Management Act 2007; Corporations Act means the Corporations Act 2001 of the Commonwealth; current company extract means a document prepared by the Australian Securities and Investment Commission from its national database kept under the Corporations Act that contains current details of the following in relation to a company: (a) the company's name; (b) the address of the company's registered office; (c) the date of registration of the company; (d) the State or Territory in which the company is taken to be registered under the Corporations Act; (e) the company's Australian Company Number; (f) whether the company is a proprietary company or a public company; (g) the full name of each director of the company; (h) the full name of each secretary (if any) of the company; Department means the administrative unit of the Public Service that is responsible for assisting a Minister in the administration of the Act; fishery means the Miscellaneous Fishery constituted by these regulations; giant crab means Giant Crab Pseudocarcinus gigas; waters of the State means all the waters to which the Act applies. (2) In these regulations, unless the contrary intention appears, company, director, proprietary company and public company have the same respective meanings as in the Corporations Act. (3) In these regulations— (a) common and scientific fish names are given according to AS5300—2019 Australian Fish Names Standard published by the Fisheries Research & Development Corporation, as in force from time to time; (b) a reference to the taking of aquatic resources includes a reference to an act preparatory to, or involved in, the taking of the aquatic resources. 4—Constitution of the fishery (1) The Miscellaneous Fishery is constituted. (2) The Miscellaneous Fishery consists of the taking of aquatic resources specified in Schedule 1 in the waters of the State. 5—Issue of licences (1) If a licence in force in respect of the fishery ceases to be held by a person, the Minister may issue the licence to another person. (2) If the Minister considers that it would not be detrimental to the aquatic resources of the State to issue an additional licence in respect of the fishery, the Minister may issue a licence in respect of the fishery. (3) The Minister may, but is not required to, call for applications in respect of a licence to be issued under this regulation in accordance with the competitive tender procedure prescribed by Schedule 2. (4) Subject to subregulation (5), if the Minister conducts a tender in accordance with Schedule 2, the Minister must not grant a licence in respect of which the procedure was conducted except to the person who was the successful applicant for the licence at the tender. (5) If a person who is a successful applicant at a tender conducted in accordance with Schedule 2— (a) fails to make an application for the licence in respect of which the person was the successful applicant; or (b) having made an application for that licence, is for any reason not granted the licence, the Minister may call for additional applications in respect of that licence in accordance with the procedure prescribed by Schedule 2. (6) The Minister may not issue a licence to an applicant under this regulation unless satisfied— (a) in the case of a natural person—that the person is at least 15 years of age and is a fit and proper person to hold a licence in respect of the fishery; (b) in the case of a company—that each director of the company is a fit and proper person to be a director of a company that holds a licence in respect of the fishery. 5A—Transfer of licence (1) Licences in respect of the fishery are transferable. (2) An application for consent to the transfer of a licence must be accompanied by— (a) the licence to be transferred; and (b) a form of return as required by regulation 11 completed by the holder of the licence up to the date of application; and (c) if the transferee is a company—a current company extract relating to the transferee. (3) The Minister may only consent to the transfer of a licence if satisfied as to the following: (a) that any fees or other amounts payable in relation to the licence under the Act have been paid in full; (b) that the licence to be transferred has not been suspended; (c) that no proceedings alleging an offence against the Act are pending or likely to be commenced in the State against the holder of the licence; (d) if the transferee is a natural person, that the transferee is at least 15 years of age and is a fit and proper person to hold a licence in respect of the fishery; (e) if the transferee is a company, that each director of the company is a fit and proper person to be a director of a company that holds a licence in respect of the fishery; (f) if a boat registered for use under the licence is the subject of, or registered for use under, or is otherwise referred to in, a licence, permit, authority or other entitlement to take fish granted under a law of the Commonwealth or a corresponding law— (i) that the entitlement is either to be transferred together with the licence to the transferee or to be surrendered on or before the transfer of the licence; or (ii) that— (A) the transfer of the licence separately from the entitlement is not likely to result in fishing activities that over‑exploit or endanger the aquatic resources of the State; and (B) the person or body that granted the entitlement concurs with the separate transfer of the licence. 6—Power of Minister to limit fishing activities The Minister may impose conditions on a licence in respect of the fishery limiting the class of fishing activities that may be engaged in under the licence. 7—Registration An application by the holder of a licence in respect of the fishery— (a) to register a boat or device for use under the licence; or (b) to register a person as a master of a boat that may be used under the licence, must be accompanied by the documents specified in the application form. 8—Revocation of registration (1) The Minister may, on application by the holder of a licence in respect of the fishery, revoke the registration of— (a) a boat or device used under the licence; or (b) a person as a master of a boat that may be used under the licence. (2) An application for revocation of registration must— (a) be made in a manner and form approved by the Minister; and (b) be completed in accordance with the instructions contained in the form; and (c) be accompanied by the documents specified in the application form. 9—Individual giant crab catch quota system—Northern Zone (1) In this regulation— following quota period, in relation to a first quota period, the Northern Zone and the holder of a licence in respect of the fishery, means the next quota period during which giant crab may be taken by the holder of the licence in that Zone following the first quota period; giant crab quota entitlement or quota entitlement— (a) in relation to a licence in respect of the fishery and the Northern Zone, means the maximum number of kilograms of giant crab that may be lawfully taken by the holder of the licence in the Northern Zone during a quota period, being the product of— (i) the unit entitlement under that licence in respect of the Northern Zone; and (ii) the unit value for the Northern Zone and that quota period, subject to any variation applying during that quota period; (b) in relation to a licence in respect of the Northern Zone Rock Lobster Fishery—has the same meaning as in regulation 16A of the Fisheries Management (Rock Lobster Fisheries) Regulations 2017; quota period means a period of 12 months commencing on 1 November; unit entitlement— (a) in relation to a licence in respect of the fishery and the Northern Zone—means the number of giant crab units for the time being allocated to the licence in respect of the Northern Zone; (b) in relation to a licence in respect of the Northern Zone Rock Lobster Fishery—has the same meaning as in regulation 16A of the Fisheries Management (Rock Lobster Fisheries) Regulations 2017; unit value means the number of kilograms of giant crab determined by the Minister to be the value of a giant crab unit for the Northern Zone and a quota period. (2) In this regulation, Northern Zone and Northern Zone Rock Lobster Fishery have the same respective meanings as in the Fisheries Management (Rock Lobster Fisheries) Regulations 2017. (3) The Minister must, on or before the commencement of each quota period, determine the number of kilograms of giant crab that is to be the value of a giant crab unit for the Northern Zone and the quota period. (4) The Minister may impose or vary conditions on licences in respect of the fishery or the Northern Zone Rock Lobster Fishery varying giant crab quota entitlements as follows: (a) on joint application made to the Minister by the holders of licences in respect of the fishery subject to conditions fixing a giant crab quota entitlement, the conditions of the licences may be varied so as to increase the unit entitlement under 1 of the licences and decrease the unit entitlement under the other licence by a corresponding number of units; (b) on joint application made to the Minister by a holder of a licence in respect of the fishery subject to a condition fixing a giant crab quota entitlement (the first licence) and the holder of a licence in respect of the Northern Zone Rock Lobster Fishery subject to such a condition (the second licence)— (i) the conditions of the first licence may be varied so as to decrease the unit entitlement under that licence in respect of the Northern Zone and the conditions of the second licence may be varied so as to increase the unit entitlement under that licence by a corresponding number of units; or (ii) the conditions of the first licence may be varied so as to increase the unit entitlement under that licence in respect of the Northern Zone and the conditions of the second licence may be varied so as to decrease the unit entitlement under that licence by a corresponding number of units; (c) if the total catch of giant crab taken by the holder of a licence in respect of the fishery subject to a condition fixing a giant crab quota entitlement in respect of the Northern Zone during a quota period (the first quota period) (being a quota period that commenced on or after 1 November 2021) is less than the giant crab quota entitlement under the licence for that Zone and that quota period, the Minister may vary the conditions of the licence so as to increase the giant crab quota entitlement in respect of that Zone for the following quota period (the subsequent quota period) by 1 kilogram of giant crab for each kilogram by which the catch fell short of the giant crab quota entitlement for the first quota period up to— (i) — (A) 10% of the quota entitlement for the first quota period; or (B) such lower percentage of the quota entitlement for the first quota period, or such other lower kilogram amount of catch, as is determined by the Minister on or before the commencement of the subsequent quota period; or (ii) if the Minister is satisfied that exceptional circumstances apply— (A) a percentage that exceeds 10% of the quota entitlement for the first quota period; or (B) such other greater kilogram amount of catch, as is determined by the Minister on or before the commencement of the subsequent quota period; (d) if the total catch of giant crab taken by the holder of a licence in respect of the fishery subject to a condition fixing a giant crab quota entitlement in respect of the Northern Zone during a quota period (the first quota period) (being a quota period that commences on or after 1 November 2022) exceeded the giant crab quota entitlement under the licence for that Zone and that quota period, the conditions of the licence may be varied so as to decrease the quota entitlement in respect of that Zone for the following quota period (the subsequent quota period) as follows: (i) if the catch exceeded the quota entitlement by— (A) an amount not exceeding 10% of the quota entitlement for the first quota period; or (B) such lower percentage of the quota entitlement for the first quota period, or such other lower kilogram amount of catch, as is determined by the Minister on or before the commencement of the first quota period, by 1 kilogram of giant crab for each kilogram taken in excess of the quota entitlement; or (ii) if the catch exceeded the quota entitlement by— (A) an amount greater than 10% of the quota entitlement for the first quota period; or (B) such lower percentage of the quota entitlement for the first quota period, or such other lower kilogram amount of catch, as is determined by the Minister on or before the commencement of the first quota period, by 2 kilograms of giant crab for each kilogram taken in excess of the quota entitlement. (4a) For the purposes of— (a) subregulation (4)(c)(i) and (ii); and (b) subregulation (4)(d)(i) and (ii), any increase in the quota entitlement under a licence applying during a first quota period as a result of a variation of the quota entitlement under the licence previously made under subregulation (4)(c)(i) or (ii) must be disregarded. (4b) A variation of a quota entitlement under subregulation (4)(c) or (d) must be expressed to apply only for the quota period during which the variation is made. (4c) An application under subregulation (4)(a) or (b)(i) may not be made in respect of giant crab units allocated to the licence under subregulation (4)(c). (5) An application to vary quota entitlements must— (a) be made in a manner and form approved by the Minister; and (b) be completed in accordance with the instructions contained in the form; and (c) be accompanied by— (i) the documents specified in the application form; and (ii) the prescribed fee. 9A—Individual giant crab catch quota system—Southern Zone (1) In this regulation— following quota period, in relation to a first quota period, the Southern Zone and the holder of a licence in respect of the fishery, means the next quota period during which giant crab may be taken by the holder of the licence in that Zone following the first quota period; giant crab quota entitlement or quota entitlement— (a) in relation to a licence in respect of the fishery and the Southern Zone, means the maximum number of kilograms of giant crab that may be lawfully taken by the holder of the licence in the Southern Zone during a quota period, being the product of— (i) the unit entitlement under that licence in respect of the Southern Zone; and (ii) the unit value for the Southern Zone and that quota period, subject to any variation applying during that quota period; (b) in relation to a licence in respect of the Southern Zone Rock Lobster Fishery—has the same meaning as in regulation 17 of the Fisheries Management (Rock Lobster Fisheries) Regulations 2017; quota period means a period of 12 months commencing on 1 October; unit entitlement— (a) in relation to a licence in respect of the fishery and the Southern Zone—means the number of giant crab units for the time being allocated to the licence in respect of that zone; (b) in relation to a licence in respect of the Southern Zone Rock Lobster Fishery—has the same meaning as in regulation 17 of the Fisheries Management (Rock Lobster Fisheries) Regulations 2017; unit value means the number of kilograms of giant crab determined by the Minister to be the value of a giant crab unit for the Southern Zone and a quota period. (2) In this regulation, Southern Zone and Southern Zone Rock Lobster Fishery have the same respective meanings as in the Fisheries Management (Rock Lobster Fisheries) Regulations 2017. (3) The Minister must, on or before the commencement of each quota period, determine the number of kilograms of giant crab that is to be the value of a giant crab unit for the Southern Zone and the quota period. (4) The Minister may impose or vary conditions on licences in respect of the fishery or the Southern Zone Rock Lobster Fishery varying giant crab quota entitlements as follows: (a) on joint application made to the Minister by the holders of licences in respect of the fishery subject to conditions fixing a giant crab quota entitlement, the conditions of the licences may be varied so as to increase the unit entitlement under 1 of the licences and decrease the unit entitlement under the other licence by a corresponding number of units; (b) on joint application made to the Minister by a holder of a licence in respect of the fishery subject to a condition fixing a giant crab quota entitlement (the first licence) and the holder of a licence in respect of the Southern Zone Rock Lobster Fishery subject to such a condition (the second licence)— (i) the conditions of the first licence may be varied so as to decrease the unit entitlement under that licence in respect of the Southern Zone and the conditions of the second licence may be varied so as to increase the unit entitlement under that licence by a corresponding number of units; or (ii) the conditions of the first licence may be varied so as to increase the unit entitlement under that licence in respect of the Southern Zone and the conditions of the second licence may be varied so as to decrease the unit entitlement under that licence by a corresponding number of units; (c) if the total catch of giant crab taken by the holder of a licence in respect of the fishery subject to a condition fixing a giant crab quota entitlement in respect of the Southern Zone during a quota period (the first quota period) (being a quota period that commenced on or after 1 October 2021) is less than the giant crab quota entitlement under the licence for that Zone and that quota period, the Minister may vary the conditions of the licence so as to increase the giant crab quota entitlement in respect of that Zone for the following quota period (the subsequent quota period) by 1 kilogram of giant crab for each kilogram by which the catch fell short of the giant crab quota entitlement for the first quota period up to— (i) — (A) 10% of the quota entitlement for the first quota period; or (B) such lower percentage of the quota entitlement for the first quota period, or such other lower kilogram amount of catch, as is determined by the Minister on or before the commencement of the subsequent quota period; or (ii) if the Minister is satisfied that exceptional circumstances apply— (A) a percentage that exceeds 10% of the quota entitlement for the first quota period; or (B) such other greater kilogram amount of catch, as is determined by the Minister on or before the commencement of the subsequent quota period; (d) if the total catch of giant crab taken by the holder of a licence in respect of the fishery subject to a condition fixing a giant crab quota entitlement in respect of the Southern Zone during a quota period (the first quota period) (being a quota period that commences on or after 1 October 2022) exceeded the giant crab quota entitlement under the licence for that Zone and that quota period, the conditions of the licence may be varied so as to decrease the quota entitlement in respect of that Zone for the following quota period (the subsequent quota period) as follows: (i) if the catch exceeded the quota entitlement by— (A) an amount not exceeding 10% of the quota entitlement for the first quota period; or (B) such lower percentage of the quota entitlement for the first quota period, or such other lower kilogram amount of catch, as is determined by the Minister on or before the commencement of the first quota period, by 1 kilogram of giant crab for each kilogram taken in excess of the quota entitlement; or (ii) if the catch exceeded the quota entitlement by— (A) an amount greater than 10% of the quota entitlement for the first quota period; or (B) such lower percentage of the quota entitlement for the first quota period, or such other lower kilogram amount of catch, as is determined by the Minister on or before the commencement of the first quota period, by 2 kilograms of giant crab for each kilogram taken in excess of the quota entitlement. (4a) For the purposes of— (a) subregulation (4)(c)(i) and (ii); and (b) subregulation (4)(d)(i) and (ii), any increase in the quota entitlement under a licence applying during a first quota period as a result of a variation of the quota entitlement under the licence previously made under subregulation (4)(c)(i) or (ii) must be disregarded. (4b) A variation of a quota entitlement under subregulation (4)(c) or (d) must be expressed to apply only for the quota period during which the variation is made. (4c) An application under subregulation (4)(a) or (b)(i) may not be made in respect of giant crab units allocated to the licence under subregulation (4)(c). (5) An application to vary quota entitlements must— (a) be made in a manner and form approved by the Minister; and (b) be completed in accordance with the instructions contained in the form; and (c) be accompanied by— (i) the documents specified in the application form; and (ii) the prescribed fee. 10—Use of agents in fishing activities on shore (1) The holder of a licence in respect of the fishery or the registered master of a registered boat used under such a licence must not cause or permit a person to be engaged on the shore as an agent of the holder of the licence in a fishing activity of a class that constitutes the fishery unless— (a) the holder of the licence or the registered master is at the same time also engaged on the shore in a fishing activity of a class that constitutes the fishery; and (b) the holder of the licence or the registered master (as the case may be) and the other person remain, while so engaged, within 700 metres of each other. Maximum penalty: $5 000. Expiation fee: $315. (2) The holder of a licence in respect of the fishery or the registered master of a registered boat used under such a licence must not cause or permit more than 2 persons to be engaged at the same time on the shore as agents of the holder of the licence in a fishing activity of a class that constitutes the fishery. Maximum penalty: $5 000. Expiation fee: $315. 11—Periodic returns (1) The holder of a licence in respect of the fishery must provide the Department with such returns in the manner and form, at such times and containing such information, as determined by the Minister. Maximum penalty: $5 000. Expiation fee: $500. (2) The holder of a licence must keep a record of each return that the licence holder provides to the Department under this regulation in such manner, and for such period, as determined by the Minister. Maximum penalty: $5 000. Expiation fee: $500. 12—Provision relating to keeping of records A person required under these regulations to keep a record for a period of time must ensure that the record— (a) is maintained in a good condition and is legible; and (b) is kept so that it is readily accessible; and (c) is produced for inspection by a fisheries officer on request. Maximum penalty: $2 500. Expiation fee: $210. 13—Minister's determinations (1) The Minister may make a determination for the purposes of a regulation. (2) A determination may— (a) be of general or limited application; and (b) make different provision according to the persons, things or circumstances to which it is expressed to apply. (3) If the Minister makes a determination, notice of the determination— (a) must be published on the Department's website; and (b) may also be published in the Gazette. (4) As soon as practicable after a determination of the Minister is made, a notice in writing setting out the date on which notice of the determination is published and the terms of the determination must be given to the persons bound by the determination in a manner and form that, in the opinion of the Minister, will bring the determination to the attention of those persons. (5) The Minister may, by further determination, vary or revoke a determination made for the purposes of a regulation. (6) This regulation does not apply in relation to a determination made for the purposes of regulations 9 or 9A or Schedule 2.