Title: Fisheries Management (Miscellaneous Fishery)Regulations 2015
Subject: Fisheries ManagementAct 2007
Author: Office of Parliamentary Counsel
Last saved by: Mrs Sandra Flintoft-Silk
Category: public
Document comments: 193

No 193 of 2015 published in Gazette 13.8.2015 p 3807

Fisheries Management (Miscellaneous Fishery) Regulations 2015

Fisheries Management (Miscellaneous Fishery) Regulations 2015
Schedule 1—Aquatic resources prescribed for Miscellaneous Fishery

Fisheries Management (Miscellaneous Fishery) Regulations 2015
Aquatic resources prescribed for Miscellaneous Fishery—Schedule 1

Fisheries Management (Miscellaneous Fishery) Regulations 2015
Schedule 2—Competitive tender procedure for issue of licences

Fisheries Management (Miscellaneous Fishery) Regulations 2015
Competitive tender procedure for issue of licences—Schedule 2

Fisheries Management (Miscellaneous Fishery) Regulations 2015
Schedule 3—Revocation of Fisheries Management (Miscellaneous Fishery) Regulations 2000

Fisheries Management (Miscellaneous Fishery) Regulations 2015
Revocation of Fisheries Management (Miscellaneous Fishery) Regulations 2000—Schedule 3

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

Contents
1	Short title
2	Commencement
3	Interpretation
4	Constitution of the fishery
5	Issue of licences
6	Power of Minister to limit fishing activities
7	Registration
8	Revocation of registration
9	Individual giant crab catch quota system
10	Use of agents in fishing activities on shore
11	Periodic returns
Schedule 1—Aquatic resources prescribed for Miscellaneous Fishery
Schedule 2—Competitive tender procedure for issue of licences
1	Competitive tender procedure
Schedule 3—Revocation of Fisheries Management (Miscellaneous Fishery) Regulations 2000

1—Short title
These regulations may be cited as the Fisheries Management (Miscellaneous Fishery) Regulations 2015.
2—Commencement
These regulations will come into operation on 1 September 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;
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 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.
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 signed by the applicant and 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
	(1)	In this regulation—
giant crab fishing zone means the Northern Zone or Southern Zone;
giant crab quota entitlement or quota entitlement—
	(a)	in relation to a licence in respect of the fishery and a giant crab fishing zone, means the maximum number of kilograms of giant crab that may be lawfully taken by the holder of the licence in that zone during a quota period, being the product of—
	(i)	the unit entitlement under that licence in respect of that zone; and
	(ii)	the unit value for that zone and that quota period,
subject to any variation applying during that quota period;
	(b)	in relation to a licence in respect of a rock lobster fishery—has the same meaning as in the Fisheries Management (Rock Lobster Fisheries) Regulations 2006;
quota period—a quota period for the fishery is a period of 12 months commencing on 1 July;
unit entitlement—
	(a)	in relation to a licence in respect of the fishery and a giant crab fishing 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 a rock lobster fishery—has the same meaning as in the Fisheries Management (Rock Lobster Fisheries) Regulations 2006;
unit value means the number of kilograms of giant crab determined by the Minister to be the value of a giant crab unit for a giant crab fishing zone and a quota period.
	(2)	In this regulation, Northern Zone, rock lobster fishery and Southern Zone have the same respective meanings as in the Fisheries Management (Rock Lobster Fisheries) Regulations 2006.
	(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 a giant crab fishing zone and the quota period.
	(4)	The Minister may vary conditions on licences in respect of the fishery or a 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)	on joint application made to the Minister by the 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;
	(d)	if the total catch of giant crab taken during a quota period exceeded the giant crab quota entitlement under the licence for that quota period, the conditions of the licence may be varied so as to reduce the quota entitlement—
	(i)	if the catch exceeded the giant crab quota entitlement by not more than 20 kilograms of giant crab—by 1 kilogram for each kilogram taken in excess of the quota entitlement; or
	(ii)	if the catch exceeded the quota entitlement by more than 20 kilograms but not more than 50 kilograms of giant crab—by 2 kilograms for each kilogram taken in excess of the quota entitlement;
	(e)	if—
	(i)	the holder of a licence in respect of the fishery is convicted of an offence of contravening a condition of the licence fixing a giant crab quota entitlement; and
	(ii)	the conduct constituting the offence involved the taking of more than 50 kilograms of giant crab in excess of the quota entitlement,
the conditions of the licence may be varied so as to reduce the quota entitlement under the licence for 3 quota periods following the conviction by 1 kilogram for each kilogram taken in excess of the quota entitlement for the quota period during which the offence was committed;
	(f)	a variation of a giant crab quota entitlement made under paragraph (d) must be expressed to apply only for the quota period during which the variation is made.
	(5)	An application to vary quota entitlements must—
	(a)	be made in a manner and form approved by the Minister; and
	(b)	be signed by the applicants and 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 appropriate fee fixed by the Fisheries Management (Fees) Regulations 2007.
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—
	(a)	fill out a return, in a form determined by the Minister, in respect of each calendar month during the currency of the licence; and
	(b)	include in the return such in
	(c)	formation as the Minister requires; and
	(d)	date and sign the return and certify that the information contained in the return is complete and accurate, and post or deliver the return to the Minister within 15 days of the end of the month to which it relates.
Maximum penalty: $5 000.
Expiation fee: $315.
	(2)	If the holder of a licence in respect of the fishery takes no aquatic resources under the licence during a particular calendar month, he or she is required by subregulation (1) to furnish a return in respect of that period indicating that no aquatic resources were taken.
	(3)	If the fishery has been closed for a whole calendar month, the holder of a licence need not furnish a return for that month.
	(4)	The holder of a licence in respect of the fishery must—
	(a)	make a copy of each return that he or she fills out pursuant to these regulations before the return is sent or delivered to the Minister; and
	(b)	retain the copy for the period of 1 year from the last day of the month to which the return relates.
Maximum penalty: $5 000.
Expiation fee: $315.

Schedule 1—Aquatic resources prescribed for Miscellaneous Fishery
All aquatic resources other than Abalone (Haliotis spp), King Prawn (Melicertus latisulcatus) and Southern Rock Lobster (Jasus edwardsii).
Note—
Common and scientific fish names are given according to AS 5300—2015 Australian Fish Names Standard, as amended from time to time.

Schedule 2—Competitive tender procedure for issue of licences
1—Competitive tender procedure
	(1)	If the Minister proposes to call applications for the issue of a licence in respect of the fishery, the Minister must cause an advertisement, in a form determined by the Minister, to be published in the Gazette and in a newspaper circulating generally throughout the State—
	(a)	calling for tenders for such number of licences in respect of the fishery as are to be granted; and
	(b)	fixing a time and date on which tenders will close (being a date that is at least 1 month after the publication of the advertisement); and
	(c)	requiring each tender to be accompanied by an ADI guarantee equal to 10 per cent of the amount tendered; and
	(d)	requiring all tenders to be made in a manner and form approved by the Minister.
	(2)	All tenders must be enclosed in a sealed envelope and forwarded to the office of the Minister.
	(3)	The Minister must provide at his or her office a locked box into which all tenders must be deposited.
	(4)	All tenders deposited in the locked box must remain there until the close of tenders.
	(5)	A person must not interfere with or remove a tender from the locked box prior to the close of tenders.
Maximum penalty: $1 250.
	(6)	At the close of tenders the Minister must open the locked box in the presence of two persons appointed by the Minister for this purpose.
	(7)	One of those persons must remove each of the envelopes from the box taking each 1 singly and at random and, after removing an envelope from the box, that person must open the envelope and hand the contents to the other person.
	(8)	On receiving the contents of an envelope the other person must prepare a schedule of tenderers containing—
	(a)	the name of each tenderer; and
	(b)	the amount tendered; and
	(c)	the order in which the envelopes containing the tenders were removed from the box.
	(9)	When all the tenders have been removed from the box and the schedule of tenderers has been completed the Minister must examine each tender and the schedule of tenderers.
	(10)	If 1 licence in respect of the fishery is to be granted—
	(a)	the amount payable for the licence will be an amount equal to the highest amount tendered; and
	(b)	the successful applicant will be the person who tenders an amount equal to the highest amount.
	(11)	If 1 licence in respect of the fishery is to be granted and more than 1 person tenders an amount equal to the highest amount—
	(a)	1 of the persons who tendered an amount equal to the highest amount will be the successful applicant; and
	(b)	the successful applicant will be the person whose tender was removed from the box before the tenders of the other persons who tendered an amount equal to the highest amount.
	(12)	If more than 1 licence in respect of the fishery is to be granted and the number of licences to be granted is equal to the number of persons who have tendered an amount equal to or greater than the clearing price, those persons who have tendered an amount equal to or greater than the clearing price will be the successful applicants.
	(13)	If the number of licences to be granted in respect of the fishery is less than the number of persons who have tendered an amount equal to or greater than the clearing price, the successful applicants will be selected as follows:
	(a)	each of the persons who tendered an amount greater than the clearing price will be a successful applicant; and
	(b)	the name of the other persons who have tendered an amount equal to the clearing price will be put on a list in the order in which their tender was removed from the box and the successful applicant will be the person whose name appears first on the list; and
	(c)	if, after following the procedure specified in paragraph (b), there remains 1 or more licences to be granted in respect of the fishery, the successful applicant or applicants in respect of that licence or those licences will be the person whose name appears next on the list prepared under paragraph (b) and so on in descending order until a successful applicant has been determined in respect of each licence to be granted.
	(14)	If more than 1 licence is to be granted in respect of the fishery the amount payable for that licence will be the clearing price determined by the Minister at the close of tenders.
	(15)	If a person makes a tender that is successful but—
	(a)	the person fails, within a reasonable time, to make an application for the licence in respect of which his or her tender was accepted; or
	(b)	the person makes such an application but for any reason does not accept the licence that the Minister is prepared to grant in the person's favour,
the person forfeits an amount equal to 10% of the amount tendered on the Minister making a demand on the guarantee referred to in subclause (1).
	(16)	If a person makes a tender that is not successful, or the tender is successful but the Minister is not prepared to grant the licence in the person's favour, the person does not forfeit the amount of 10% of the amount tendered.
	(17)	In this Schedule—
clearing price means an amount equal to the lowest amount that, having regard to the number of licences to be granted in respect of the fishery, would have to be tendered by an applicant to enable that applicant to be a successful applicant.

Schedule 3—Revocation of Fisheries Management (Miscellaneous Fishery) Regulations 2000
The Fisheries Management (Miscellaneous Fishery) Regulations 2000 are revoked. 
Note—
As required by section 10AA(2) of the Subordinate Legislation Act 1978, the Minister has certified that, in the Minister's opinion, it is necessary or appropriate that these regulations come into operation as set out in these regulations.
Made by the Governor
with the advice and consent of the Executive Council
on 13 August 2015
No 193 of 2015
15MAFF0014