Fisheries Management Act 1994 Regulation relating to ocean hauling and law revision (1995-78) [GG No 21 of 1.3.1995] (NSW)
1995—No. 78
FISHERIES MANAGEMENT ACT 1994—REGULATION
(Relating to ocean hauling and law revision)
NEW SOUTH WALES
[Published in Gazette No. 21 of 1 March 1995]
HIS Excellency the Governor, with the advice of the Executive Council, and in pursuance of the Fisheries Management Act 1994, has been
pleased to make the Regulation set forth hereunder.
I. R. CAUSLEY
Minister for Agriculture and Fisheries.
Commencement
1. This Regulation commences on 1 March 1995.
Amendments relating to ocean hauling
2. The Fisheries Management (General). Regulation 1995 is amended:
(a) by inserting after clause 17 (2) the following subclauses:
(3) This subclause applies if a restricted fishery or share management fishery is defined by reference to the use of a particular net or trap. If it is unlawful for a commercial fisher to use such a net or trap to take fish for sale in the fishery, it is unlawful for the fisher to use the net or trap to take fish for bait in the fishery.
(4) Subclause (3) does not apply to the use of a pilchard, anchovy and bait net (hauling) to take fish for bait in the Ocean hauling restricted fishery (within the meaning of Division 4A of Part 8).
| (b) | by inserting after clause 83 the following clause: |
Minimum crew number for hauling to sea beaches
83A. ( l ) The rights of priority in the hauling of nets to or from
a sea beach between commercial fishers working the same
recognised fishing ground is to be determined in accordance with
clause 83, subject to the modifications in this clause.
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(2) A crew that has the minimum crew number (or more) has priority over any crew consisting of less than the minimum crew number (regardless of which crew arrived first at the recognised fishing ground).
(3) A crew that has less than the minimum crew number is not entitled to a turn while another crew that has the minimum crew number (or more) is ready and waiting to haul (whether or not that other crew has already had a turn).
(4) The minimum crew number is:
(a) 4 Ocean haul fishers (at least one of whom is a skipper); or
(b) in respect of particular waters, such greater number of Ocean haul fishers as is determined by the local fisheries officer as being required to effectively operate the net in use or intended to be used.
(5) If all crews ready and waiting to haul have less than the minimum crew number, the rights of priority between them is to be determined in accordance with clause 83.
(6) In this clause:
“skipper” means an ocean haul fisher who holds a commercial fishing licence with a class A endorsement in respect of the Ocean hauling restricted fishery (as referred to in clause
212D);
“ocean haul fisher” means a commercial fisher who is authorised (by endorsement on his or her commercial fishing licence) to take fish for sale in the ocean hauling restricted fishery;
“ocean hauling restricted fishery” means the restricted fishery declared under Division 4A of Part 8.
(c) by inserting after Division 4 in Part 8 the following Division:
Division 4A—Ocean hauling fishery
Definitions
212A. In this Division:
“endorsed licence” means an endorsed commercial fishing
licence;
“endorsement” means an endorsement on a commercial
fishing licence authorising the holder of the licence to take
fish for sale in the restricted fishery;
“hauling net” means any one or more of the following types of nets:
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(a) hauling net (general purpose);
(b) garfish net (hauling);(c) garfish net (bullringing);
(d) pilchard, anchovy and bait net (hauling);
(e) pound net;
“ocean hauling fishery” means the fishery described in clause
212C;
“restricted fishery” means the restricted fishery declared
under this Division.
Ocean hauling fishery is a restricted fishery
212B. For the purposes of section 111 of the Act, the ocean hauling fishery is declared to be a restricted fishery.
Description of ocean hauling fishery
212C. (1) The Ocean hauling fishery consists of the use of a
hauling net to take fish for sale from any of the following waters: (a) Ocean waters within 3 nautical miles of coastal baselines; (b) the waters of Jervis Bay;
(c)
the waters of Botany Bay east of a line ‘drawn from Bear Island generally southeast to the northernmost extremity of Sutherland Point;
(d) the waters of Coffs Harbour.
(2) The ocean hauling fishery extends to the use of any net by the method of hauling to take fish for sale from any of the waters referred to in subclause (1).
Types of endorsement in restricted fishery
212D. The following classes of endorsement are available in the restricted fishery:
• Class A endorsement. This endorsement authorises the holder to take fish for sale using one or more types of hauling net specified in the endorsement in a particular region of the restricted fishery. The holder may also use a hauling net while assisting another person who holds a licence with a class A endorsement that authorises the other person to use the net concerned in that region of the fishery.
• Class B endorsement. This endorsement authorises the holder to take fish for sale using a hauling net in a particular region of the restricted fishery but only if the holder is assisting another person who holds a licence with a class A
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endorsement that authorises the other person to use the net
concerned in that region of the fishery.
Application for endorsement
212E. (1) An application for endorsement is to be in a form
approved by the Director.
(2) The application is to be accompanied by 2 identical passport
sized photographs of the applicant and the appropriate application
fee.
(3) The application fee is:
(a) in the case of an application for a class A endorsement- $250; or
(b) in the case of an application for a class B endorsement- $50. (4) The Minister may endorse the commercial fishing licence of an applicant if the applicant satisfies the eligibility requirements
for the class of endorsement applied for.
( 5 ) The Minister may refuse to endorse the commercial fishing licence of an applicant who is otherwise eligible if the applicant:
(a) has been convicted of an offence against the Act, this Regulation or any other regulation made under the Act; or
(b) has been convicted of an offence relating to the theft of fish, fishing gear or a boat or intentional damage to fishing gear or a boat; or (c) has not paid any fee due and payable in connection with the endorsement.
(6) The Minister may endorse the commercial fishing licence of
a person who applied for an endorsement before the
commencement of this Division if the applicant is otherwise
eligible for the endorsement under this Division.
Eligibility for endorsement
212F. (1) An applicant for a class A endorsement is eligible for that endorsement if:
(a)
the applicant submitted at least one return under section 42 of the 1935 Act during a relevant year and, according to that return, the applicant caught mullet, bream, salmon, blackfish, pilchard or garfish using a hauling net and at the time had a fishing boat that was licensed to the applicant; and
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(b) the Minister is satisfied that the applicant had a hauling net of the type in respect of which an endorsement is sought, which was registered in the name of the applicant, before 31 December 1990 and that the applicant currently has
such a registered hauling net; and
(c) the Minister is satisfied that the applicant currently has a suitable boat for use in the Ocean hauling fishery that is licensed to the applicant.
(2) An applicant for a class B endorsement is eligible for that endorsement if the applicant demonstrates to the satisfaction of the Minister that the applicant has participated in the Ocean hauling fishery at any time after 1 January 1986.
(3) In determining an applicant’s eligibility for an endorsement, the Minister may have regard to the following:
(a)
the records kept by the Director (including records of net registration, licence records and records of fish taken by a commercial fisher);
(b) a verified record of a commercial fishers’ co-operative;
(c) a verified record relating to the income tax liability of a commercial fisher;
(d)
a verified record of any fish processing company (whether a wholesaler or a retailer).
(4) In this clause:
(a) a reference to a relevant year is a reference to 1986, 1987, 1988, 1989 or 1990; and
(b)
a reference to a verified record is a reference to an original record, or a copy of a record, audited by a registered company auditor (within the meaning of the Corporations Law) or that forms part of a record audited by a registered company auditor.
Duration of endorsement
212G. An endorsement remains in force for the period specified in the endorsement, except to the extent that its duration is affected by suspension, or unless it is cancelled.
Type of hauling net that may be used (class A endorsement)
212H. (1) It is a condition of a class A endorsement that the holder of the endorsed licence does not take fish for sale in the restricted fishery otherwise than by use of the type or types of hauling nets specified by the Minister in the endorsement.
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(2) The holder of the endorsed licence does not contravene this condition if the fisher is using the hauling net concerned while assisting, and in the presence of, another person who holds a commercial fishing licence with a class A endorsement that authorises that other person to use the hauling net.
(3) In this clause, a reference to a hauling net includes any net used by the method of hauling.
Region in which hauling nets may be used (class A endorsement)
212I. (1) It is a condition of a class A endorsement that the holder of the endorsed licence does not take fish for sale in the restricted fishery except in a region of the fishery specified by the Minister in the endorsement.
(2) The Minister is to specify the region which, in the opinion of the Minister, was the fisher’s primary area of activity in the Ocean hauling fishery in the years 1986 to 1990 inclusive (“the
relevant yearss''). However, a different region may be specified if
the Minister considers it appropriate in the circumstances, for example, because the fisher has changed his or her place of residence.
(3 ) The region specified is to be an electoral region (unless subclause (4) or (5) applies).
(4) The region need not be an electoral region if the Minister is satisfied that the fisher’s commercial fishing operations in the ocean hauling fishery in the relevant years were primarily conducted by ocean hauling to a boat and that, for the purpose of those operations, the fisher used any of the following types of hauling net:
(a) garfish net (hauling);
(b) garfish net (bullringing);
(c) pilchard, anchovy and bait net (hauling).
( 5 ) In addition, in special circumstances the Minister may specify a region that comprises parts of two or more electoral regions (for example, because the fisher concerned is resident in
an area that is close to the boundary between two electoral
regions).
(6) In this clause:
“electoral region” means a region referred to in clause 231
(the electoral regions for regional members of CFAC);
“ocean hauling to a boat” means the use of a hauling net on or from a boat to take fish by landing them on the boat.
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Class B endorsement holder may only assist class A
endorsement holder
212J. It is a condition of a class B endorsement that the holder
of the endorsed licence does not take fish for sale in the restricted
fishery except:
(a) in a region of the fishery specified by the Minister in the endorsement; and (b) while assisting, and in the presence of, a person who holds a commercial fishing licence with a class A endorsement that authorises that other person to use the hauling net
concerned in that region of the fishery.
Identity card
212K. It is a condition of an endorsement that the holder of the endorsed licence does not take fish for sale in the restricted fishery except while in possession of an identity card issued to the holder by the Director.
Code of conduct
212L. It is a condition of an endorsement that the holder of the endorsed licence comply with the mandatory requirements of any code of conduct issued by the Director to the holder of the endorsed licence.
Review of Minister’s determination regarding endorsement212M. (1) An applicant for an endorsement may request that
the Minister review any of the following:
(a) a determination as to whether the applicant is eligible for an endorsement;
(b) a determination as to the type or types of hauling nets the applicant is to be authorised to use by his or her endorsement; (c) a determination as to the region in which the applicant is to be authorised to use a hauling net by his or her
endorsement;
(d) any other matter concerning the endorsement application (including the conditions to be attached to his or her endorsement) that the Minister considers it appropriate to review.
(2) On the review of an applicant’s eligibility for a class A
endorsement, the Minister may endorse the commercial fishing licence of the applicant, even if the applicant does not satisfy the relevant eligibility requirements, if the Minister is satisfied that:
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(a) the applicant substantially satisfies the eligibility requirements; or (b) the applicant was part of a group of commercial fishers that conducted commercial fishing activities in the Ocean hauling fishery in the years 1986 to 1990 (inclusive) and the members of the group together substantially satisfy the eligibility requirements. (3) A review request is to be made in a form approved by the Director and is to be accompanied by a fee of $100.
(4) The review is to be conducted in such manner as the Minister thinks fit. For instance, the Minister may establish a panel to conduct or assist in the review.
(5) The review fee is to be refunded following the review if the Minister directs that the fee be refunded. The Minister may direct that the fee (or any part of the fee) be refunded if the Minister is of the opinion that it is appropriate in the circumstances of the case, for instance, because the review confirms submissions made by the applicant.
Holder of class A endorsement unable to take fish
212N. (1) The holder of a commercial fishing licence with a class A endorsement may apply in writing to the local fisheries officer for approval for another commercial fisher (who is authorised to take fish for sale in the same region of the restricted fishery as the applicant) to take the benefit of the authority conferred by the class A endorsement for a specified period.
(2) The local fisheries officer may, in writing, approve the application if the fisheries officer is satisfied that the applicant is,
or is likely to be, unable to take fish for sale in the restricted
fishery during the specified period.
(3) If the local fisheries officer approves the application, the
person nominated by the applicant to take the benefit of the class
A endorsement is taken to hold a class A endorsement of the kind
held by the applicant during the period specified in the approval. During that period, the person nominated does not contravene the condition of his or her own endorsement referred to in clause
212H or 212J (as appropriate) if the person is acting as authorised
by the class A endorsement.
Note: Clause 212P (b) makes contravention of the conditions of an
endorsement by a person who is authorised to take the benefit of the
endorsement grounds for cancellation or suspension of the endorsement.
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Application for endorsement of licence for further period
212O. ( 1 ) The holder of a commercial fishing licence to which
an endorsement in force (a “current endorsement”) is attached may apply to the Minister for an endorsement for a further period.
(2) The application is to be in a form approved by the Director and is to be accompanied by the appropriate application fee.
(3) The appropriate application fee is:
(a) in the case of an application for a class A endorsement for a further period—$30; or (b) in the case of an application for a class B endorsement for a further period—$20.
(4) The Minister may endorse the applicant’s commercial
fishing licence for such further period as the Minister determines
or refuse the application.
(5) The Minister may only refuse such an application if:
(a) the applicant has been convicted of an offence against the Act, this Regulation or any other regulation made under the Act; or (b) the applicant has, in the opinion of the Minister, contravened a condition of the endorsement; or
(c)
the applicant has been convicted of an offence relating to the theft of fish, fishing gear or a boat or intentional damage to fishing gear or a boat; or
(d)
the application for endorsement for a further period is received by the Minister after the expiration of the current endorsement; or
(e)
the applicant has not paid any fee due and payable in connection with the endorsement.
(6) If application is duly made for the endorsement of a
commercial fishing licence for a further period and the licence is not so endorsed before the expiration of the current endorsement:
(a)
the current endorsement continues in force until the licence is endorsed for a further period or the application is refused; and
(b)
the licence may be endorsed for a further period despite the fact that, but for this subclause, the endorsement would have expired.
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Cancellation and suspension of endorsements
212P. The Minister may cancel or suspend an endorsement if:
(a)
the holder of the endorsed licence has been convicted of an offence against the Act, this Regulation or any other regulation made under the Act; or
(b)
the holder of the endorsed licence, or a person authorised (under clause 212N) to take the benefit of the authority conferred by the holder’s endorsement, has, in the opinion of the Minister, contravened a condition of the endorsement; or
(c)
the holder of the endorsed licence has been convicted of an offence relating to the theft of fish, fishing gear or a boat or intentional damage to fishing gear or a boat; or
(d)
the holder of the endorsed licence sells or disposes of the licensed boat, or registered fishing gear, used by the licence holder in the restricted fishery.
Amendments by way of law revision
3. The Fisheries Management (General) Regulation 1995 is amended:
(a)
by inserting in clause 3 (1) in alphabetical order the following definition:
“estuarine waters” means waters ordinarily subject to tidal
influence (other than Ocean waters);
(b) by omitting from clause 34 (3) (b) and the Table to clause 35 the words “Smokey Cape’’ wherever occurring and by inserting instead the words “Smoky Cape”; (c) by omitting from clause 62 (1) (a) the words “Lake Poon Poon” and by inserting instead the words “Lake Poon Boon”;
(d) by omitting from clause 109 the words “on or”;
(e)
by omitting from clause 139 (7) the words “hace expired” and by inserting instead the words “have expired”;
(f)
by omitting from clause 178 (2) the words “commerical fishing licences” and by inserting instead the words “commercial fishing licences”.
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EXPLANATORY NOTE
The object of this Regulation is to declare the use of hauling nets in Ocean waters (and certain associated waters) to be a restricted fishery under section 111 of the Fisheries Management Act 1994. As a result a commercial fisher will not be able to take fish for sale in the fishery unless authorised by special endorsement on his or her commercial fishing licence (section 112 of the Act).
The Regulation inserts a new Division in the restricted fisheries provisions of the
Fisheries Management (General) Regulation 1995 dealing with the following matters:
(a)
the criteria for eligibility for an endorsement (requiring the fisher to demonstrate historical participation in the Ocean hauling fishery);
(b) the different classes of endorsement available;
(c)
the prescribed conditions of endorsements, which include compliance with a code of conduct.
The Regulation also:
(a) requires ocean hauling crews (commercial fishers hauling to or from a beach) to have a minimum crew number of 4 endorsed commercial fishers to be entitled to claim priority over any other crew that has less than the minimum crew number; and
(b) provides that if a commercial fisher is not endorsed to use a net or trap to take fish for sale in a restricted fishery (such as the ocean hauling restricted fishery), the fisher may not take fish for bait in that fishery (except in certain circumstances).
The Regulation also makes minor amendments to the General Regulation that correct typographical errors and insert a definition of “estuarine waters”.
This Regulation is made under the Fisheries Management Act 1994, in particular section 24 (Lawful use of nets or traps), section 40 (Regulations relating to general management of fisheries), section 111 (Declaration of restricted fisheries), section 112 (Commercial fishing licence to be endorsed for restricted fishery), section 113 (Restriction on the number of licences endorsed for restricted fishery), section 116 (Other regulations) and section 289 (the general regulation making power).
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