Untitled document

Wildlife (Whales) (Amendment) Regulations 2004

S.R. No. 96/2004

TABLE OF PROVISIONS

Regulation  Page

1.Objective

2.Authorising provisions

3.Commencement

4.Principal Regulations

5.Definitions

6.Prescribed minimum distances

7.Conditions of whale sightseeing permits and whale swim tour permits

8.Additional conditions of whale swim tour permits

9.Additional conditions of whale sightseeing permits

10.Offence to enter Logans Beach Exclusion Zone

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ENDNOTES

STATUTORY RULES 2004

S.R. No. 96/2004

Wildlife Act 1975

Wildlife (Whales) (Amendment) Regulations 2004

The Lieutenant-Governor as the Governor's Deputy with the advice of the Executive Council makes the following Regulations:

Dated: 27 July 2004

Responsible Minister:

JOHN THWAITES
Minister for Environment

DIANE CASEY

Clerk of the Executive Council

1.Objective

The objective of these Regulations is to make further provision relating to the permits and activities connected with whale watching.

2.Authorising provisions

These Regulations are made under sections 85A and 87 of the Wildlife Act 1975.

3.Commencement

These Regulations come into operation on 1 August 2004.

4.Principal Regulations

In these Regulations, the Wildlife (Whales) Regulations 1998[1] are called the Principal Regulations.

5.Definitions

In regulation 3 of the Principal Regulations—

(a)for the definition of "Ticonderoga Bay Sanctuary Zone", substitute—

' "Ticonderoga Bay Sanctuary Zone" means all the waters of Port Phillip Bay that are within 500 metres of the low water mark between a line drawn due north from Police Point and a line drawn due north from Nepean Rock at Point Nepean;';

(b)after the definition of "Ticonderoga Bay Sanctuary Zone" insert—

' "tour" means the activity that occurs between when a tour vessel leaves the jetty of departure and when it returns to  that jetty;'.

6.Prescribed minimum distances

In regulation 4(b) of the Principal Regulations—

(a)for sub-paragraph (i) substitute—

"(i)  if using a motorised vessel (including a personal watercraft)—

(A)outside the waters of Ticonderoga Bay Sanctuary Zone, 100 metres; or

(B)inside the waters of Ticonderoga Bay Sanctuary Zone, 200 metres;";

(b)sub-paragraph (ii) is revoked;

(c)for sub-paragraph (v) substitute—

"(v)if using a surfboard, 50 metres;".

7.Conditions of whale sightseeing permits and whale swim tour permits

(1)After regulation 5(1) of the Principal Regulations insert—

"(1A)The holder of a whale sightseeing permit or a whale swim tour permit must not approach a whale at a distance that is less than the prescribed minimum distance other than a whale of a class specified in the permit. 

Penalty:20 penalty units.".

(2)In regulation 5(2) of the Principal Regulations—

(a)in paragraph (a), for "200 metres" substitute "300 metres";

(b)for paragraph (h) substitute—

"(h)must ensure that the tour vessel—

(i)does not approach a whale head on; or

(ii)is not in the path of a whale; or

(iii)does not separate a whale from a group of whales; or

(iv)does not come between a mother whale and calf; or

(v)does not approach a whale closer than 100 metres more than 4 times each tour but in any event not more than 8 times each day; or

(vi)does not approach a whale closer than 100 metres without signalling the approach in the manner specified in the permit; or

(vii)must ensure that if an approach has commenced and a foetal fold calf is detected the tour vessel immediately withdraws to more than 100 metres from the whale with the foetal fold calf; and";

(c)in paragraph (j), for "100 metres" substitute "200 metres".

(3) After regulation 5(2) of the Principal Regulations insert—

"(3)Provided that the holder of a whale sightseeing permit or a whale swim tour permit complies with sub-regulation (2)(h)(vii), the first approach where a foetal fold calf is detected in each tour does not count as an approach for the purposes of sub‑regulation (2)(h)(v).".

8.Additional conditions of whale swim tour permits

(1)For regulation 6(2) of the Principal Regulations substitute—

"(2)The permit holder—

(a)must ensure that a whale swim is not conducted within 100 metres of the low water mark; and

(b)must ensure that the tour vessel does not remain within 100 metres of a whale for more than 5 minutes unless a whale swim has commenced; and

(c)must, except in an emergency in which human lives are threatened—

(i)ensure that a mermaid line is placed in the water before any person enters the water from a tour vessel; and

(ii)ensure that any person who takes part in a whale swim from that tour vessel, who is not the permit holder or an employee of the permit holder, holds onto the mermaid line at all times while in the water; and

(iii)while in the water for the purposes of assisting persons taking part in a whale swim, remain within 10 metres of the mermaid line; and

(iv)ensure that any of his or her employees, while in the water for the purposes of assisting persons taking part in a whale swim, remain within 10 metres of the mermaid line; and

(d)must not reposition a tour vessel during a whale swim; and

(e)must not enter, and must ensure that no person on the tour vessel, enters the water at a distance of less than 30 metres from a whale; and

(f)must ensure that no more than 10 persons, not including himself or herself and any of his or her employees, participate in a whale swim; and

(g)must not approach, and must ensure that no person involved in a whale swim approaches, a whale at a distance of less than 30 metres; and

(h)must not approach, and must ensure that no person involved in a whale swim approaches, a whale closer than 100 metres if a foetal fold calf is present; and

(i)must ensure that if a whale swim has commenced and a foetal fold calf is detected—

(i)all persons involved in the whale swim immediately return to and reboard the tour vessel; and

(ii)the tour vessel withdraws to more than 100 metres from the whale with the foetal fold calf; and

(j)must ensure that, before the first whale swim on each tour is commenced, all persons on the tour vessel are verbally advised of the requirements of these Regulations; and

(k)must, in respect of each month, keep a monthly return in the form provided by the Secretary and must ensure that there is clearly and accurately recorded on the return at the end of each tour, conducted in the month to which the return applies, and before any person disembarks from the vessel—

(i)the name of the tour supervisor on that tour; and

(ii)the number of persons, other than employees, on the tour vessel during that tour; and

(iii)the number of persons, other than employees, on that tour who participated in a whale swim during that tour; and

(iv)the time of day that the tour vessel makes each approach within 100 metres of a whale during that tour; and

(v)the time of day that each whale swim commenced during that tour; and

(vi)the time of day the tour vessel withdraws to beyond 100 metres of a whale during that tour; and

(vii)any other information required by the Secretary; and

(l)must ensure that each return completed under paragraph (k) is forwarded to the Secretary by the 14th day of the month following the period of the return; and

(m)must ensure that a return referred to in paragraph (k) is made available for inspection by an authorised officer on request; and

(n)must ensure that any person who participates in a whale swim from that tour vessel does not use underwater breathing equipment while in the water, other than a snorkel; and 

(o)must ensure that when all persons who participate in a whale swim are back on board the tour vessel, the tour vessel immediately withdraws to more than 100 metres from any whale.".

(2)For regulation 6(3) of the Principal Regulations substitute—

"(3)For the purposes of this regulation, a whale swim is deemed to commence when the first person enters the water from the tour vessel.".

9.Additional conditions of whale sightseeing permits

In regulation 7(2) of the Principal Regulations—

(a)for paragraphs (b)(ii) and (iii) substitute—

"(ii)the time of day the tour vessel makes each approach within 100 metres of a whale during that tour; and

(iii)the time of day the tour vessel withdraws to beyond 100 metres of a whale during that tour; and

(iv) any other information required by the Secretary; and";

(b)in paragraph (e), for "20 minutes" substitute "5 minutes".

10.Offence to enter Logans Beach Exclusion Zone

For regulation 13(2)(a) of the Principal Regulations substitute—

"(a)any authorised officer or any employee of the Department of Sustainability and Environment or the Department of Primary Industries, acting in the course of his or her duties; or".

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ENDNOTES

[1] Reg. 4: S.R. No. 152/1998.  Reprint No. 1 as at 1 November 2002.  Reprinted to S.R. No. 107/2002 and subsequently amended by S.R. No. 88/2004.