Fisheries Management Act 1994 Fisheries Management (General) Amendment (Abalone, Sea Urchin and Turban Shell) Regulation 1996 (1996-595) [GG No 143 of 6.12.1996] (NSW)
1996 No 595
New South Wales
Fisheries Management (General)
Amendment (Abalone, Sea Urchin
and Turban Shell) Regulation 1996
under the
Fisheries Management Act 1994
His Excellency the Governor, with the advice of the Executive Council, has made the following Regulation under the Fisheries Management Act 1994.
BOB MARTIN
Minister for Mineral Resources and Minister for Fisheries
Explanatory note
The object of this Regulation is to provide for the limited access stage of the abalone share management fishery and the continuation of sea urchin and turban shell as a restricted fishery under the Fisheries Management Act 1994.Previously, abalone, sea urchin and turban shell (sometimes called “turban snail”) were a restricted fishery. Abalone is a share management fishery under Schedule 1 to the Act. The Act provides that if a share management fishery is also a restricted fishery, it ceases to be a restricted fishery when limited access to the share management fishery commences. Limited access to the abalone fishery has commenced, so that fishery is no longer a restricted fishery.
This Regulation makes provision for the limited access stage of the abalone share management fishery. It sets out special licence conditions for shareholders or other persons who hold an endorsed licence (including by providing for quotas and quota transfers) and provides for the imposition of a fee for endorsements in the share management fishery and other miscellaneous matters relating to the fishery.
Published in Gazette No 143 of 6 December 1996, page 7873 Page 1
1996 No 595
Fisheries Management (General) Amendment (Abalone, Sea Urchin and Turban Shell) Regulation 1996
Explanatory note
The Regulation also provides for the continuation of sea urchin and turban shell as a restricted fishery (despite abalone ceasing to be a restricted fishery), including the continuation of endorsements in the restricted fishery. The provisions give the Minister power to invite commercial fishers to apply for new endorsements in the fishery and allow a fisher to nominate another person to take sea urchin and turban shell on his or her behalf in the fishery. This Regulation is made under the Fisheries Management Act 1994, including section 40 (relating to general management of fisheries), section 71 (5) (relating to transfers and other dealings in shares), section 116 (relating to restricted fisheries), section 289 (the general regulation making power) and the sections referred to in the Regulation.
1996 No 595
Fisheries Management (General) Amendment (Abalone, Sea Urchin and Turban Shell) Regulatron 1996 Clause 1 Fisheries Management (General) Amendment
(Abalone, Sea Urchin and Turban Shell)Regulation 1996
1 Name of Regulation
This Regulation is the Fisheries Management (General) Amendment (Abalone, Sea Urchin and Turban Shell) Regulation 1996.
2 Amendment of Fisheries Management (General) Regulation 1995
(1) The Fisheries Management (General) Regulation I995 is
amended as set out in Schedule 1.(2) The Fisheries Management (General) Regulation 1995 is further
amended as set out in Schedule 2.3 Notes
The explanatory note does not form part of this Regulation.
1996 No 595
Fisheries Management (General) Amendment (Abalone, Sea Urchin and Turban Shell) Regulation 1996
| Schedule 1 | Amendments relating to abalone |
| Schedule 1 | Amendments relating to abalone |
(Clause 2 (1))
[1] Clause 130A
Omit the clause.
[2] Clause 132 Transfers and other dealings in shares
Omit clause 132 (1A). Insert instead:
(1A) In addition:
(a) in the case of shares in the lobster share management fishery’ the transfer, assignment or transmittance must not result in the transferee’s shareholding in the lobster share management fishery exceeding 5% of the number of shares provisionally issued in the fishery, and (b) in the case of shares in the abalone share management fishery, the transferee must be a person who is not already a shareholder in the fishery.
[3] Part 6, Division 3
Insert after Division 2 of Part 6:
Division 3 Abalone share management fishery—limited
access stage134I Application of Division This Division applies to the abalone fishery but only while it is a limited access fishery (within the meaning of section 54 of the Act).
1996 No 595
Fisheries Management (General) Amendment (Abalone, Sea Urchin and Turban Shell) Regulation 1996
Amendments relating to abalone Schedule 1 134J Definitions
In this Division:
abalone fishery means the abalone share management
fishery specified in Schedule 1 to the Act.
shareholder means a holder of shares in the abalone
fishery.Note. This Division deals with the limited access stage of the abalone share management fishery. Formerly, abalone was a restricted fishery under Division 1 of Part 8. Section 55 of the Act provides that a share management fishery that is also a restricted fishery ceases to be a restricted fishery on the commencement of limited access to the share management fishery. Further, an endorsement of a commercial fishing licence to take abalone in the restricted fishery becomes, on the fishery ceasing to be a restricted fishery, an endorsement under Part 3 of the Act to take abalone in the share management fishery.
The Minister may give an endorsement to a shareholder or to a person duly nominated in the Share Register by the shareholder to take fish in the abalone fishery on behalf of the shareholder. Section 68 of the Act provides that an application for endorsement is to be made in a form and manner approved by the Minister. An endorsement remains in force, unless sooner suspended or cancelled, for a specified fishing period. Until the commencement of the management plan for the fishery, this period is to be determined by the Minister. Until the plan commences, the Minister may also determine the reasons for which an endorsement may be suspended or cancelled.
A shareholder may transfer his or her shares to another person (who is not already a shareholder), provided the shareholder transfers all of his or her shares in the fishery to that person. (See section 71 of the Act and clause 132 of this Regulation.) The person acquiring the shares can then apply for an endorsement. (See section 54 of the Act and clause 130 of this Regulation).
134K Endorsement fee
(1)
For the purposes of section 68 (5) of the Act, the prescribed fee in respect of an endorsement that authorises a commercial fisher to take abalone in the abalone share management fishery is $19,500 in respect of each period, or further period, of 12 months in respect of which the endorsement is given.
1996 No 595
Fsheries Management (General) Amendment (Abalone, Sea Urchin and Turban Shell) Regulation 1996
| Schedule 1 | Amendments relating to abalone |
(2)
If the endorsement is given for a period of less than 12 months, the prescribed fee is an appropriate proportion of $19,500 (that is, the proportion that the period for which the endorsement is given bears to the period of 12 months).
134L Director may approve payment of fee in instalments
(1)
The Director may approve the payment of the fee referred to in clause 134K in instalments payable at such times as the Director determines.
(2)
if a person fails to pay an instalment on or before the date on which it is due, the total amount of all instalments unpaid on that date becomes due and payable.
134M Quotas for abalone
The Director may from time to time determine the maximum quantity of abalone that may be taken in the abalone fishery by or on behalf of a shareholder during a particular period.
The Director is to give written notice of such a quota determination to the shareholder concerned and to any person who holds a licence that is endorsed under Part 3 of the Act for the taking of abalone in the fishery on behalf of the shareholder.
Quotas are to be determined for shareholders in proportion to their shareholdings in the abalone fishery.
However, subclause (3) does not prevent the Director from adjusting the quota of a person in an appropriate
manner to take account of the person exceeding his or her quota in a previous period or to take account of any mistake in the calculation of quota in a previous period. A quota (or any unused part of it) may not be carried over from one period to another.
1996 No 595
Fisheries Management (General) Amendment (Abalone, Sea Urchin and Turban Shell) Regulation l996
Amendments relating to abalone Schedule 1 For the purposes of section 104 (4) (a) of the Act, it is a condition of a commercial fishing licence that is endorsed under Part 3 of the Act for the taking of abalone in the abalone fishery that the licensee (whether or not a shareholder) does not cause the quota of a shareholder to be exceeded.
is served on the shareholder or, if the shareholder has in writing of the quota determination for the shareholder Such a condition has effect on and from the date notice duly nominated a commercial fisher to take abalone in the abalone fishery on the shareholder’s behalf, on the person so nominated.
134N Transfer of quota
A quota for a period (or any part of it) is, to such extent as may be advised from time to time by the Director, transferable within that period in accordance with this clause.
An application for transfer of quota is to be made in writing to the Director jointly by the shareholder seeking to transfer quota and the shareholder seeking to acquire quota. The application must specify the amount of quota to be transferred.
The application is to be accompanied by a fee of $100. The Director may transfer the quota or refuse to transfer the quota.
Without limiting subclause (4), the Director may refuse to transfer the quota (or any part of the quota) of a shareholder whose endorsement for the taking of abalone in the abalone fishery is suspended or cancelled.
The Director transfers quota by giving notice in writing of the transfer to the shareholders who applied for the transfer. The Director must also give notice in writing of the transfer to any person who has been duly nominated to take abalone in the abalone fishery on behalf of either of the shareholders who applied for the transfer.
1996 No 595
Fisheries Management (General) Amendment (Abalone, Sea Urchin and Turban Shell) Regulation 1996
| Schedule 1 | Amendments relating to abalone |
(8)
The conditions of a commercial fishing licence that is endorsed under Part 3 of the Act for the taking of abalone in the abalone fishery are taken to be amended in accordance with a transfer of quota, with effect on and from the date notice of the transfer is served on the licensee.
134O Special licence conditions for shareholders who
nominate persons to take abalone on their behalf
For the purposes of section 104 (4) (a) of the Act, it is a condition of a commercial fishing licence that the licensee, if he or she is a shareholder who has duly nominated another commercial fisher to take abalone in the abalone fishery on the shareholder’s behalf:
(a) must not assist, encourage or permit that other commercial fisher to contravene the Act, the regulations under the Act or the conditions of that other fisher’s commercial fishing licence in connection with the taking of abalone in the abalone fishery; and (b) must take all reasonable steps to ensure that that other commercial fisher does not contravene the Act, the regulations under the Act or the conditions of that other fisher’s commercial fishing licence in connection with the taking of abalone in the abalone fishery.
[4 ] Clause 138, note
Omit the note from clause 138. Insert instead:
Note. Additional licence conditions apply to endorsement holders in share management fisheries and in restricted fisheries (see Part 6 and Part 8).
1996 No 595
Fisheries Management (General) Amendment (Abalone, Sea Urchin and Turban Shell) Regulation 1996
Amendments relating to sea urchin and turban shell Schedule 2 Schedule 2 Amendments relating to sea urchin
and turban shell
(Clause 2 (2))
[1] Part 8, Division 1, heading
Omit “Abalone”. Insert instead “Sea urchin and turban shell”.
[2] Clause 160 Definitions
Omit the definitions of abalone and original endorsement.
[3] Clause 160
Omit the definition of endorsement. Insert instead:
endorsement means an endorsement on a commercial fishing licence authorising the holder of the licence to take sea urchin and turban shell for sale in the restricted fishery, and includes an endorsement in force under this Division immediately before abalone ceased to be a restricted fishery.
[4] Clause 160
Omit “abalone” wherever occurring from the definitions of quota
and total allowable catch.
Insert instead “sea urchin or turban shell”.[5] Clause 160, note
Omit the note at the end of clause 160. Insert instead:
Note. When this Regulation commenced, abalone, sea urchin and turban shell were a restricted fishery under this Division. Afterwards, abalone became a share management fishery by amendment to Schedule 1 to the Act. The Act provides that a share management fishery that is also a restricted fishery ceases to be a restricted fishery on the commencement of limited access to the share management fishery (see section 55). Accordingly, abalone ceased to be a restricted fishery under this Division when limited
1996 No 595
Fisheries Management (General) Amendment Abolone, Sea Urchin and Turban shell) Regulation 1996
| Schedule 2 | Amendments relating to sea urchin and turban shell |
access to the abalone share management fishery commenced. (For provisions relating to the limited access stage of the abalone fishery see Division 2 of Part 6 of this Regulation.) Sea urchin and turban shell continue to be a restricted fishery under this Division and an endorsement that was in force immediately before abalone ceased to be a restricted fishery continues as an endorsement under this Division.
[6 ] Clause 161 Sea urchin and turban shell are a restricted fishery
Omit “abalone is”. Insert instead “sea urchin and turban shell are”.
[7] Clause 162 Maximum number of commercial fishing licences that may be endorsed
Insert at the end of clause 162:
(2) This clause does not prevent the Minister from giving a temporary endorsement to a commercial fisher who is nominated (under clause 171 A) by the holder of an endorsed licence to take sea urchin and turban shell for sale on his or her behalf.
[8 ] Clauses 163, 170
Omit “abalone” wherever occurring.
Insert instead “sea urchin or turban shell”.[9 ] Clause 663 (2)
Omit the subclause. Insert instead:
(2)
This clause does not prevent the Minister from requiring the TAC Committee to determine the total allowable catch under section 28 (3) of the Act.
1996 No 595
Fisheries Management (General) Amendment (Abalone, Sea Urchin and Turban Shell) Regulation 1996
Amendments relating to sea urchin and turban shell Schedule 2 [10] Clauses 164, 165
Omit the clauses. Insert instead:
164 Invitation to apply for new endorsements
(1) The Minister may, by public notice, invite commercial fishers to apply for an endorsement in the restricted fishery, having regard to the maximum number of commercial fishing licences that may be endorsed in respect of the fishery under clause 162. (2) The Minister may take action under this clause in anticipation of an increase in the maximum number of commercial fishing licences that may be endorsed in respect of the fishery. (3) The notice is to specify:
(a) how an application for endorsement is to be made, and (b) the period in which the Minister will receive applications for endorsement (being a period that commences after the day the notice is published), and (c) the basis on which priority for the issue of endorsements will be determined. (4) Without limiting subclause (3) (c), the notice may provide for the issue of endorsements by public tender, subject to such conditions as are specified in the notice. (5) The Minister may, subject to clause 162, endorse the
commercial fishing licence of a successful applicant.(6) The Minister may refuse to endorse the commercial fishing licence of a successful applicant unless the applicant has paid an endorsement fee of $300. [11] Clause 166 Application for endorsement of licence for further period
Insert after clause 166 (1):
(1A) The application is to be accompanied by a fee of $300.
1996 No 595
Fisheries Management (General) Amendment (Abalone, Sea Urchin and Turban Shell) Regulation 1996
| Schedule 2 | Amendments relating to sea urchin and turban shell |
Clause 166 (2)
Omit “clauses l62 and 167”. Insert instead “clause 162”.
Clause 166 (3) (c)
Insert at the end of clause 166 (3) (b):
, or
(c)
the applicant has not paid any fee due and payable in connection with the endorsement.
Clauses 167, 168
Omit the clauses.
Clause 170 Quota for sea urchin and turban shell
Insert after clause 170 (2):
(3) A quota (or any unused part of it) may not be carried
over from one period to another.
Clause 171 Transfer of quota
Insert after clause 171 (6):
(7)
For the purposes of this clause, a reference to the holder of an endorsed licence is taken to include any person whose endorsement is suspended temporarily under clause 171 A because he or she has nominated another person to take sea urchin and turban shell on his or her
behalf. The other person may not apply to transfer quota
under this clause.Clauses 171A, 171B
Insert after clause 171 :
171A Holder of endorsed licence may nominate another
person to take sea urchin and turban shell on his or
her behalf
(1)
The holder of an endorsed licence may apply in writing to the Minister for approval for another commercial fisher to take sea urchin and turban shell on behalf of the holder of the endorsed licence for a specified period.
1996 No 595
Fisheries Management (General) Amendment (Abalone, Sea Urchin and Turban Shell) Regulation 1996
Amendments relating to sea urchin and turban shell Schedule 2
one time by the holder of the endorsed licence.
Only one commercial fisher may be nominated at any person nominated: has been convicted of an offence against the Act, this Regulation or any other regulation made under the Act, or
has been convicted of an offence relating to commercial fishing operations under the laws of the Commonwealth or of another State or of a Territory, or
has been convicted of an offence relating to the theft of fish, fishing gear or a boat or intentional damage of fishing gear or a boat, or
has, in the opinion of the Minister, contravened a condition of his or her commercial fishing licence or of an endorsement on that licence, or
already holds an endorsed licence.
If the Minister approves the application, the Minister may give the commercial fisher nominated a temporary endorsement, with effect during the period specified in the endorsement, and suspend temporarily the endorsement of the person who nominated the commercial fisher to take sea urchin and turban shell on his or her behalf. The Minister may, on the written request of the person
endorsement given to that other person and reinstate the turban shell on his or her behalf, cancel the temporary who nominated the other person to take sea urchin and endorsement of the person who nominated the other person. This subclause does not prevent the Minister from cancelling or suspending an endorsement under clause 172. For the purposes of section 112 (2) of the Act, it is a condition of an endorsement that is given to a person temporarily under this clause that the person does not cause the quota of the person who nominated him or her under this clause to be exceeded.
1996 No 595
Fisheries Management (General) Amendment (Abalone Sea Urchin and Turban Shell) Regulation 1996
| Schedule 2 | Amendments relating to sea urchin and turban shell |
(7) Any takings of sea urchin and turban shell for sale by a person who holds a temporary endorsement under this clause are, for the purposes of section 51 of the Act (Catch history) and subclause (6), considered to be the takings of the person who nominated him or her.
171B Special licence conditions for endorsement holders who
nominate persons to take sea urchin and turban shell
on their behalfFor the purposes of section 104 (4) (a) of the Act, it is a condition of a commercial fishing licence that the licensee, if he or she has duly nominated another commercial fisher to take sea urchin and turban shell on his or her behalf:
(a)
must not assist, encourage or permit that commercial fisher to contravene the Act, the regulations under the Act or the conditions of that other fisher’s commercial fishing licence or of an endorsement on that licence in connection with the taking of such sea urchin and turban shell, and
(b)
must take all reasonable steps to ensure that that other commercial fisher does not contravene the Act, the regulations under the Act or the conditions of that other fisher’s commercial fishing licence or of an endorsement on that licence in connection with the taking of sea urchin and turban shell.
| Clause 172 Cancellation or suspension of endorsements |
| Omit clause 172 (c). Insert instead: |
(c) has not paid any fee due and payable in
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