Chauncey Hammond Public Administration Committee ......Final, Parliamentary Enquiry Property Rights...

From: Chauncey HammondTo: Public Administration CommitteeCc: Fishing Families WASubject: Submission on Inquiry into Private Property RightsDate: Wednesday, 31 July 2019 2:42:05 PMAttachments: 2019.03.05 Memorandum - Proposed Amendments to ARM Act.pdf

Final, Parliamentary Enquiry Property Rights FFWA Submission, signed, 31.07.19.pdf

Attention: Kristina Crichton, Commercial Clerk, Standing Committee on PublicAdministration

Please find attached Fishing Families WA’s submission on Private Property Rights.Please confirm you have received this email and attachments.

Best regards

Chauncey HammondFishing Families WA Committee ChairE:P:

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AQUATIC RESOURCES MANAGEMENT ACT 2016 (WA)

SUGGESTED AMENDMENTS

5 March 2019

OBJECTIVE

1. Fishing Families WA wishes to have amendments drafted to the Aquatic Resources Management Act 2016 (WA) (ARM Act) and the West Coast Rock Lobster Managed Fishery Management Plan 2012 (Plan) with the objective of fixing the number of Western Rock Lobster units at their current number and ensuring that they can neither be created or destroyed.

2. Set out below are a number of amendments proposed by Fishing Families WA to achieve this objective while maintaining the application of the ARM Act and the protections afforded therein to the Rock Lobster industry.

PROPOSED AMENDMENTS

Removal of the Minister’s power to revoke the Plan

3. Pursuant to s. 57(3) of the ARM Act, a managed fishery licence (MFL) (and accordingly the corresponding units of entitlement) is cancelled if the management plan for the fishery in respect of the MFL is granted is revoked.

4. In accordance with the transitional provisions of the ARM Act, the Plan will, by s. 273(2), “continue[] to have effect for the purposes of [the ARM Act] until it is revoked under subsection (4) or section 28(1).” Further, an MFL which was in effect immediately prior to the commencement date of the ARM Act, will be taken to be a MFL for the purpose of the ARM Act and will continue to be subject to the same conditions applying to MFL immediately before the commencement date (s. 274(1), ARM Act).

5. This means that the Plan and any MFL issued under the FRM Act (including units of entitlement) will be preserved and will not be effected by the transition to the ARM Act.

6. Under the ARM Act, the Minister may amend or revoke a management plan under s. 28(1) (by implementing an ARUP for West Coast Rock Lobster) and s. 273(4).

7. In order to maintain current units of entitlement conferred under existing MFL’s, amendments to the ARM Act are required to remove the Minister’s power revoke the Plan.

Proposed Amendment 1

Amendment

8. Amend s. 4 of the ARM Act to carve out Rock Lobster from the meaning of aquatic resource including:

8.1 Rock Lobster (Jasus and Panulirus spp);

8.2 Rock Lobster, Ornate (Panulirus ornatus);

8.3 Rock Lobster, Southern (Jasus novaehollandiae and edwardsii);

8.4 Rock Lobster, Tropical (Panulirus spp. excluding P. cygnus); and

8.5 Rock Lobster, Western (Panulirus cygnus).

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Effect of Amendment

9. An amendment to the definition of aquatic resources will ensure the Minister cannot declare Rock Lobster as a managed aquatic resource and consequently, implement an ARUP which would in turn revoke the Plan.

10. Other definitions in the ARM Act will continue to apply to Rock Lobster including “aquatic organism”, “fishery”, “managed fishery” and “protected aquatic organism”. Preserving the application of those definitions to Rock Lobster ensures that other provisions of and protections afforded by the ARM Act will continue to apply to Rock Lobster including:

10.1 Part 4 – Management of fisheries;

10.2 Part 6 – Aquatic biosecurity;

10.3 Part 7 – Aquatic habitat protection areas and Abrolhos Islands reserve;

10.4 Part 8 – Regulation of various activities (with the exception of s. 144 discussed below) and in particular, the Ministers power under s. 125 to prohibit a person or persons from undertaking a specified activity in relation to a specified protected aquatic organism. This will allow the Minister to put in place orders protecting Rock Lobster for a specified period in emergency situations but does not give the Minister the power to revoke the Plan;

10.5 Part 9 – Review;

10.6 Part 10 – Register;

10.7 Part 11 – Compliance;

10.8 Part 12 – Legal Proceedings;

10.9 Part 13 – Administration (with the exception of s. 222 discussed below);

10.10 Part 14 – Financial provisions (with the exception of s. 232);

10.11 Part 15 – Arrangements with other jurisdictions (with the exception of ss. 248, 250 and 266);

10.12 Part 16 – Miscellaneous.

Consequential Amendments

11. As a result of Proposed Amendment 1, a number of consequential amendments will need to be made to the ARM Act to ensure certain of the provisions identified in paragraph 10 continue to apply to Rock Lobster.

12. Those consequential amendments include:

12.1 Consequential Amendment 1 – ARM Act, s. 144: adding a subsection to s. 144(1)(a) so that a person interferes with an aquatic organism to prevent the identification of the aquatic organism if the person alters, mutilates or disfigures the aquatic organism with the intention of preventing the determination of whether or not the organism is a component of a managed fishery.

12.2 Consequential Amendment 2 – ARM Act, s. 222: amending ss. 222(2)(a), (b), (c), (d), (e), and (i) to apply to an aquatic resource or fishery.

12.3 Consequential Amendment 3 – ARM Act, s. 232(4): amending s. 232(4)(a) to ensure the R&D Account may be applied by the Minister to develop and manage aquaculture or aquatic resources or fisheries.

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12.4 Consequential Amendment 4 – ARM Act, s. 248: amending ss. 248(1)(a) and (c) to ensure that if a WA regulated fishing activity is managed by a Joint Authority the Joint Authority has the functions of keeping constantly under consideration the condition and formulating policies and plans for the good management of the aquatic resource or fishery.

12.5 Consequential Amendment 5 – ARM Act, s. 250: amending s. 250 and s. 250(b) to ensure provisions of the ARM Act that relate to offences, enforcement and legal proceedings apply in relation to a fishing activity managed by a Joint Authority and in respect of anything done to, or in relation to, aquatic resources or fisheries in respect of which the fishing activity is managed and the provisions are to be read as if any reference in the provisions to aquatic resources or fishery were a reference to aquatic resources or fishery to which the fishing activity relates.

12.6 Consequential Amendment 6 – Consequential amendments to other Act – Division 3 – Conservation and Land Management Act 1984 amended – s. 328: s. 130(2A) of the Conservation and Land Management Act 1984 will need to be amended to ensure the restriction on the Governor making regulations that impose any restriction on the taking, in a marine park or marine management area, of an aquatic resource apply to Rock Lobster. This may be achieved by amending the reference to aquatic resource to aquatic organism.


Amendment

13. Amend s. 273(4) to be subject to a condition that the Minister cannot revoke the Plan. This amendment will require:

13.1 a new definition for the Plan to be inserted in alphabetical order (e.g. WCRL Plan means the West Coast Rock Lobster Managed Fishery Management Plan 2012); and

13.2 a new subsection to be inserted stipulating that the Minister cannot revoke the Plan.

Effect of Amendment

14. This amendment will ensure the Minister cannot revoke the Plan and thus cancel existing MFLs (and the corresponding units of entitlement) issued under the Plan.

FIXING THE CURRENT UNITS OF ENTITLEMENT

Preventing increase in units of entitlement


Amendment

15. Insert a new clause in Part 4, Division 2 the ARM Act (e.g. new s. 56A) which stipulates that the maximum number of units of entitlement that may be conferred by all licenses granted by the CEO under the Plan is to be fixed in the amount of:

15.1 [186,746] Zone A units of entitlement;

15.2 [230,900] Zone B units of entitlement;

15.3 [418,844] Zone C units of entitlement.

16. For completeness, a new definition of “Zone” should be included in s. 51 by reference to the meaning in of Zone in the Plan.

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Effect of Amendment

17. This amendment will ensure the maximum number of units is fixed at the current level (i.e. no further units of entitlement may be created).

18. The insertion of this restriction in the Act, as opposed to the Plan, will ensure that the units of entitlement cannot be amended by the Minister simply by gazettal. Rather an amendment to the legislation will be required to increase the number of units.

Consequential Amendment

19. Consequential Amendment 7: In order to ensure there is no confusion, cl. 16(2) of the Plan should also be amended to remove the word “maximum”.

Preventing decrease of units of entitlement


Amendment

20. Insert new clause in the Plan (e.g. new cl. 22A) to allow the CEO to increase the usual entitlement conferred by a licence:

20.1 upon the application of the holder of a licence;

20.2 where:

(a) an application for the renewal of a licence is not received within the period specified by s. 139 of the Act; or

(b) a licence is cancelled; or

(c) units are forfeited by the operation of the Act.

21. The reallocation of the usual entitlements may be subject to (as with cl. 22):

21.1 the entitlement of a licence not being increased by more than the usual entitlement in respect of a Zone of the non-renewed, cancelled or forfeited licence; and

21.2 the reallocation applying once in connection with the non-renewal, cancellation or forfeiture of any licence.

22. Further, the new clause should also include a provision that for the purposes of the new clause, a reference to a licence includes a reference to a licence which has been applied for in accordance with clause 7(3).

Effect of Amendment

23. The ARM Act and Plan currently allow for units of entitlement to be reduced (not destroyed) for a Zone in the following circumstances:

23.1 An application for renewal of a licence is not received within a period specified by s. 139 of the FRM Act (new s. 58 of the ARM Act);1

23.2 A licence is cancelled.2 A managed fishery licence may be cancelled in the following circumstances:

1 Plan, cl. 16(2)(a). 2 Plan, cl. 16(2)(b).

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(a) If the management plan for the fishery in respect of which the managed fishery licence is granted is revoked.3 This will no longer be applicable in circumstances where the Plan cannot be revoked.

(b) The court may order that the managed fishery licence be cancelled if a person is convicted of an offence.4

(c) The CEO may, by notice in writing, cancel the licence if one of the circumstances set out in s. 134 of the ARM Act is applicable, including if a person is convicted of an offence.5

(d) The CEO may cancel a licence where the licence was granted in accordance with clause 7(3) of the Plan and the relevant units of entitlement have not been transferred to the licence.6

23.3 Units are forfeited by the operation of the Act. 7 Units of entitlement may be forfeited under s. 66 of the ARM Act (previously s. 76 of the FRM Act).

24. If a licence is not renewed, cancelled or surrendered or units forfeited, the capacity applying to an applicable Zone will be reduced by the equivalent kilograms of Rock Lobster to the number of usual units of entitlement conferred by the licence.8 This will in effect ensure that any remaining units of entitlement retain their unit values (i.e. the remaining unit holders will not receive a windfall).

25. To the extent a licence is surrendered under s. 144 of the FRM Act (new s. 135 of the ARM Act), the usual entitlements under the surrendered licence may be reallocated to the holder of another licence or a new licence.9 Upon being reallocated, the capacity of the applicable Zone will be increased thus ensuring existing units of entitlement retain their unit values (i.e. the remaining unit holders will not be disadvantaged by the increase in conferred units of entitlement).

26. The Plan and the Act are silent on the reallocation of units of entitlement under non-renewed, cancelled or forfeited licences. The above amendment will ensure that units of entitlement under non-renewed, cancelled or forfeited licences may be reallocated.


27. As a result of the inclusion of Proposed Amendment 4, the following consequential amendments will need to be made to the ARM Act and Plan:

27.1 Consequential Amendment 8 – ARM Act, s. 52: amending s. 52(1) of the ARM Act to stipulate that a person may apply to the CEO for the transfer of the whole or part of an entitlement under a managed fishery licence which has not been renewed, has been cancelled or has been forfeited under this Act to another managed fishery licence.

3 ARM Act, s. 57(3). 4 ARM Act, ss. 208 and 209 (FRM Act, s.223). 5 ARM Act, s. 134. 6 Plan, cl. 11. 7 Plan, cl. 16(2)(c). 8 Plan, cl. 14(1) and (2). 9 Plan, cl. 22 and cl. 7(3).

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27.2 Consequential Amendment 9 – ARM Act, s. 60: amending s. 60 of the ARM Act to provide for the CEO to, on application contemplated by Consequential Amendment 8 (above), transfer the whole or part of an entitlement if the management plan or the regulations authorise the transfer.

27.3 Consequential Amendment 10 – Plan, cl. 7: amend cl. 4 of the Plan to ensure that for the purposes of subclause 7(3) a reference to an application to transfer units of entitlement shall be taken to include an application made in connection with the surrender of a licence pursuant to clause 22, and an application made in connection with the non-renewal, cancellation or forfeiture of a licence pursuant to Proposed Amendment 4.

27.4 Consequential Amendment 11 – Plan, cl. 14: amend cl. 14(3) to ensure that the capacity applying to a Zone shall be increased upon the increasing of the entitlement of a relevant licence pursuant to cl. 22, and the increasing of the entitlement of a relevant licence pursuant to Proposed Amendment 4.

RESTRICTING CONFERRAL OF UNITS OF ENTITLEMENT TO THE STATE OR AGENT OF THE STATE


28. In order to protect the current Rock Lobster industry from an attempt by the State to appropriate units of entitlement or confer upon itself units of entitlement, Fishing Families WA proposes that a restriction is included in the ARM Act which ensures the State, or an agent of the State, cannot (1) apply to the CEO for a MFL, renewal of a MFL or transfer of a MFL, and (2) be granted a MFL.

29. The above objective may be achieved in two ways:

29.1 by restricting the State from being granted an MFL generally (which will apply to all industries); or

29.2 by restricting the State from being granted an MFL specified in the Plan (which will only apply to the Rock Lobster industry).

Amendment

30. Insert restriction in s. 52 which prohibits the State, or an agent of the State, from applying to the CEO for:

30.1 a MFL to undertake a fishing activity in a managed fishery; or

30.2 the renewal of a MFL; or

30.3 the variation of a MFL; or

30.4 the transfer of a MFL to another person; or

30.5 the transfer of part of the entitlement under the MFL to another MFL; or

30.6 the transfer of the whole or part of the entitlement under a MFL to another MFL for a limited period; or

30.7 (as per Consequential Amendment 8) the transfer of the whole or part of an entitlement under a MFL which has not been renewed, has been cancelled or has been forfeited under the ARM Act to another MFL.

31. Insert an additional restriction in s. 54 which prohibits the CEO from granting an MFL to the State or an agent of the State.

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Effect of Amendment

32. The above amendments will ensure that the State cannot apply for a MFL (and thus be conferred units of entitlement) and the CEO cannot grant a MFL to the State.

33. These amendments may either be general in nature or restricted to MFLs issued for the purpose of the Plan.


34. Consequential Amendment 12: In order to ensure the above restrictions clearly apply to the Plan, cl. 7 of the Plan should be amended to make it clear that the CEO cannot grant a MFL to the State of an agent of the State.

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ANNEXURE 1

MARKED UP AMENDMENTS TO THE AQUATIC RESOURCES MANAGEMENT ACT 2016 (WA)

PROPOSED AMENDMENT 1:

4. Meaning of aquatic resource

(1) In this Act, a reference to an aquatic resource: (a) is a reference to —

(ic) a population of one or more identifiable groups of aquatic organisms; or (iid) one or more identifiable groups of aquatic organisms in a bioregion, area,

habitat or ecosystem but . (b) does not include —

(i) Rock Lobster (Jasus and Panulirus spp); (i) Rock Lobster, Ornate (Panulirus ornatus); (iii) Rock Lobster, Southern (Jasus novaehollandiae and edwardsii); (iv) Rock Lobster, Tropical (Panulirus spp. excluding P. cygnus); and (v) Rock Lobster, Western (Panulirus cygnus).

(2) Without limiting subsection (1), an identifiable group of aquatic organisms includes — (a) a species of aquatic organisms; and (b) a species of aquatic organisms limited by reference to sex, weight, size, reproductive

cycle or any other characteristic.

Consequential Amendment 1:

144. Interfering with aquatic organisms to prevent identification (1) A person who interferes with an aquatic organism to prevent the identification of the

aquatic organism commits an offence. Penalty: a fine of $25 000.

(2) For the purposes of subsection (1), a person interferes with an aquatic organism to prevent the identification of the aquatic organism if the person — (a) alters, mutilates or disfigures the aquatic organism with the intention of

preventing the determination of whether or not the organism is — (i) a component of a managed aquatic resource; or (ii) a protected aquatic organism; or (iii) a declared organism; or (iv) a component of a managed fishery;

or (b) alters, mutilates or disfigures any device attached to, or marking made on, an

aquatic organism with the intention of preventing the identification of the aquatic organism.

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222. Minister may enter agreement with recognised body (1) The Minister may enter into a written agreement with a body to carry out a function for the

purposes of this Act if the Minister has recognised the body as suitable to carry out that function.

(2) The agreement may relate to any of the following functions — (a) collection and analysis of data relevant to an aquatic resource or fishery; (b) advising the Minister about the management of an aquatic resource or fishery; (c) developing plans for the management of an aquatic resource or fishery; (d) the management of specified aspects of an aquatic resource or fishery; (e) restricting access to an aquatic resource or fishery on a specified basis, including

for a specified period; (f) the conduct of trading resource shares in an aquatic resource; (g) representing the interests of the commercial fishing sector; (h) representing the interests of the recreational fishing sector; (i) providing education and training about the management of an aquatic resource or

fishery to persons who have, or want to have, access to the aquatic resource or fishery;

(j) the control and management of an aquatic habitat protection area or part of an aquatic habitat protection area;

(k) the control and management of a declared organism; (l) any other prescribed functions.

(3) An agreement must include the following — (a) details of the parties to the agreement; (b) details of the function or functions to be carried out under the agreement; (c) the term of the agreement; (d) the financial arrangements under which the agreement is to operate which may

include arrangements in relation to any of the following matters — (i) payments to be made by the Minister to the body for carrying out

functions under the agreement; (ii) fees that may be payable to the body by persons other than the Minister; (iii) fees or payments to be made by the body to the Minister;

(e) the conditions under which the agreement may be varied or terminated; (f) penalties that apply in the event that the body fails to comply with the terms of the

agreement. (4) The Minister must —

(a) cause notice of an agreement to be published in the Gazette as soon as is practicable after the agreement is made; and

(b) make the agreement available for inspection by members of the public at times and places specified in the notice.


232. Aquatic Resources Research and Development Account

… (4) The R&D Account may be applied by the Minister for the following purposes — (a) to develop and manage aquaculture or aquatic resources or fisheries for

commercial purposes including by means of one or more of the following — (i) the conduct of scientific, technological or economic research;

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(ii) the purchase of any authorisation, entitlement, resource share, catch entitlement, boat or fishing or aquaculture gear;

(iii) the conduct of programmes and provision of extension services, including publicity programmes;

(iv) the purchase of required capital assets; (v) the provision of assistance to the fishing industry or any body

(whether incorporated or not) whose objects include the provision of assistance to, or the promotion of, the fishing industry;

(vi) refund of monetary bonds provided as surety for an authorisation; (vii) the payment of consideration for the surrender of an aquaculture lease; (viii) the maintenance of the marking and lighting of areas used for

aquaculture; (ix) the clean up and rehabilitation of areas previously used for aquaculture

purposes; (x) repayment of any amount paid under section 91(4)(c) that is not

required to satisfy a debt due under section 96(2)(b); (xi) to defray the costs of commercial fishing and aquaculture

administration and management; (b) to make payments under an agreement referred to in section 222; (c) to defray the costs of the administration and management of customary fishing; (d) the purposes set out in section 117(2) for which an area may be set aside as an

aquatic habitat protection area; (e) the care, control and management of the Abrolhos Islands reserve; (f) to conduct enforcement, operations and compliance programmes; (g) in payment to the Fisheries Adjustment Schemes Trust Account under the

Fisheries Adjustment Schemes Act 1987 for the benefit of the fishing industry or the aquaculture industry;

(h) in payment of compensation under the Fishing and Related Industries Compensation (Marine Reserves) Act 1997 section 12 and of the costs of administering that Act;

(i) in payment of any administrative costs under Part 9; (j) to defray any costs —

(i) incurred in the management of a marine park or marine management area; and

(ii) attributable to aquaculture activity that is authorised under this Act; (k) in payment of the costs of administering the R&D Account;

(l) any other purpose for which moneys may be lawfully paid from the R&D Account.


248. Functions of Joint Authority (1) If a WA regulated fishing activity is managed by a Joint Authority the Joint Authority has

the functions of — (a) keeping constantly under consideration the condition of the aquatic resource or

fishery in respect of which the fishing activity is managed; and (b) formulating policies and plans for the good management of the aquatic resource

or fishery; and (c) for the purposes of the management of the fishing activity —

(i) exercising the powers conferred on it by this Act; and (ii) cooperating and consulting with other authorities (including other Joint

Authorities within the meaning of the Commonwealth Act) in matters of common concern.

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(2) In the performance of its functions in relation to a WA regulated fishing activity, a Joint Authority must have regard to the objects of this Act and the means of carrying them out in accordance with section 11.


250. Application of offence provision in Act to fishing activity managed by Joint Authority Provisions of this Act that relate to offences, enforcement and legal proceedings apply in

relation to a fishing activity managed by a Joint Authority and in respect of anything done to, or in relation to, aquatic resources or fisheries in respect of which the fishing activity is managed and the provisions are to be read —

(a) as if any reference in the provisions to an authorisation were a reference to an authorisation or an endorsement of an authorisation, as the case may be, granted, renewed or made by the relevant Joint Authority, in relation to the person alleged to have committed the offence or the boat alleged to have been used in the commission of the offence; and

(b) as if any reference in the provisions to aquatic resources or fishery were a reference to aquatic resources or fishery to which the fishing activity relates.


328. Section 130 amended Delete section 130(2a) and insert:

(2A) The Governor must not make regulations under subsection (1) that impose any

restriction on the taking, in a marine park or marine management area, of an aquatic resource organism as defined in the Aquatic Resources Management Act 2016 section 3(1) in accordance with the provisions of that Act relating to aquaculture or commercial or recreational fishing.


Insert new definition in alphabetical order: WCRL Plan means the West Coast Rock Lobster Managed Fishery Management Plan

2012 [published ## and including amendments ##]].

273. Management plans (1) In this section — required consultation means consultation with the person or persons specified for that

purpose in a management plan. (2) A management plan determined under section 54(1) of the repealed Act that was in effect

immediately before commencement day continues to have effect for the purposes of this Act until it is revoked under subsection (4) or section 28(1).

(3) For the purposes of subsection (2) — (a) a declaration in a management plan that a fishery is an interim managed fishery is

to be taken to be a declaration that the fishery is a managed fishery; and (b) a management plan referred to in paragraph (a) is amended to delete any

provision that provides that the plan only has effect for a specified period. (4) Subject to subsection (4A), Tthe Minister may, by instrument in writing published in the

Gazette, amend or revoke a management plan. (4A) The Minister cannot revoke the WCRL Plan. (5) The Minister must undertake the required consultation before amending or revoking a

management plan.

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(6) Despite subsection (5), the Minister may amend a management plan without undertaking the required consultation if, in the Minister’s opinion, the amendment is —

(a) required urgently; or (b) of a minor nature.

(7) If the Minister amends a management plan in the circumstances referred to in subsection (6)(a) the Minister must undertake the required consultation as soon is as practicable after the management plan has been amended.

(8) An amended management plan may only include matters that could have been included in the management plan before commencement day.

(9) An instrument under this section is subsidiary legislation for the purposes of the Interpretation Act 1984, and section 42 of that Act applies to and in relation to an instrument as if the instrument were a regulation.

51. Terms used In this Part — management plan, in relation to a managed fishery licence, means the management plan

in respect of which the managed fishery licence is granted; unit, in relation to an entitlement, means a unit as defined from time to time in the

relevant management plan; Zone has the same meaning as appears in the WCRL Plan..


56A. Conferral of units of entitlement under the WCRL Plan The maximum number of units of entitlement that may be conferred by all licenses granted

by the CEO under the WCRL Plan is to be fixed in the amount of: (a) [186,746] Zone A units of entitlement; (b) [230,900] Zone B units of entitlement; (c) [418,844] Zone C units of entitlement.


16. Licence entitlements to be expressed in terms of units

(1) The entitlement to fish for rock lobster conferred by a licence is to be—

(a) expressed in terms of units of entitlement in respect of a Zone or Zones; and

(b) determined in accordance with clause 18.

(2) The maximum number of units that may be conferred by all licences in respect of a Zone may be reduced from time to time where—

(a) an application for the renewal of a licence is not received within the period specified by s.139 of the Act; or

(b) a licence is cancelled; or

(c) units are forfeited by the operation of the Act.

PROPOSED AMENDMENTS 4:

22A. Non-renewal, cancellation or forfeiture of licence and reallocation of usual entitlement

(1) Subject to subclauses (2) and (3), the CEO may increase the usual entitlement conferred by a licence—

(a) upon the application of the holder of a licence;

(b) where:

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(i) an application for the renewal of a licence is not received within the period specified by s. 139 of the Act; or

(ii) a licence is cancelled; or

(iii) units are forfeited by the operation of the Act.

(2) The entitlement of a licence must not be increased by more than the usual entitlement in respect of a Zone of the non-renewed, cancelled or forfeited licence.

(3) Subclause (1) applies once in connection with the non-renewal, cancellation or forfeiture of any licence.

(1)(4) For the purposes of subclause (1)(a) a reference to a licence includes a reference to a licence which has been applied for in accordance with clause 7(3).


52. Application for grant, renewal, variation or transfer of managed fishery licence or entitlement (1) A person may apply to the CEO for —

(a) a managed fishery licence to undertake a fishing activity in a managed fishery; or

(b) the renewal of a managed fishery licence; or (c) the variation of a managed fishery licence; or (d) the transfer of a managed fishery licence to another person; or (e) the transfer of part of the entitlement under a managed fishery licence

to another managed fishery licence; or (f) the transfer of the whole or part of an entitlement under a managed

fishery licence to another managed fishery licence for a limited period.; or

(g) the transfer of the whole or part of an entitlement under a managed fishery licence which has not been renewed, has been cancelled or has been forfeited under this Act to another managed fishery licence.

(2) An application must —

(a) be made in an approved form; and (b) be accompanied by the fee (if any) prescribed or specified in the

management plan; and (c) be accompanied by any information that the CEO reasonably requires

for a proper consideration of the application.


60. Transfer of managed fishery licence and entitlement (1) On an application referred to in section 52(1)(d), the CEO must transfer the managed

fishery licence unless the CEO is satisfied that — (a) the proposed transferee —

(i) is not a fit and proper person to hold the managed fishery licence; or (ii) does not satisfy guidelines under section 255 relating to foreign persons

holding, controlling or having an interest in a managed fishery licence; or (b) the applicant, or a person acting for or on behalf of the applicant, may be liable to

prosecution for an offence that is prescribed for the purposes of section 209; or (c) the managed fishery licence is suspended; or

08870-00001/10718557.2 14


(d) the transfer is prohibited on prescribed grounds or grounds specified in the management plan.

(2) On an application referred to in section 52(1)(e), the CEO must transfer the part of the entitlement unless the CEO is satisfied that —

(a) the applicant, or a person acting for or on behalf of the applicant may be liable to prosecution for, an offence that is prescribed for the purposes of section 209; or

(b) the entitlement to be transferred is under a managed fishery licence — (i) that is suspended; or (ii) in respect of which a conviction is recorded under section 209;

(c) the transfer is prohibited on prescribed grounds or grounds specified in the management plan.

(3) On an application referred to in section 52(1)(f), the CEO may transfer the whole or part of an entitlement under the managed fishery licence for a limited period if the management plan or the regulations authorise the transfer.

(3A) On an application referred to in section 52(1)(g), the CEO may transfer the whole or part of an entitlement if the management plan or the regulations authorise the transfer.

(4) If, under section 156, the CEO gives written details of an application referred to in this section to a security holder the CEO must not transfer the managed fishery licence or the part of the entitlement unless —

(a) 21 days has expired from the day on which the details were given; or (b) the CEO has the written consent of the holder of the managed fishery licence and

the security holder to do so.


7. Criteria for the grant of a licence

(1) The criteria to be satisfied before the CEO may grant a person a licence to fish in the Fishery are that—

(a) on the date of gazettal of this plan the applicant was the holder of an authorisation issued in accordance with—

i. the West Coast Rock Lobster Management Plan 1993 in respect of a Zone of the Fishery established by that plan; or

ii. regulation 129B, and (b) an application for the grant of a licence is made on or prior to 29 March 2013.

(2) Only one licence may be granted under subclause (1) in respect of an authorisation issued under— (a) the West Coast Rock Lobster Management Plan 1993 in respect of a Zone of the Fishery

established by that instrument; or (b) regulation 129B.

(3) Notwithstanding subclause (1), the CEO may grant a person a licence to fish in the Fishery if the CEO is satisfied that—

(a) immediately upon being granted a licence an application will be made under section 140 of the Act to transfer usual units of entitlement to the licence, if it is to be granted, from another licence; and

(b) the application referred to in paragraph (a) will be in respect of a total of not less than one unit; and

(c) the CEO will, pursuant to the application referred to in paragraph (a), transfer the units of usual entitlement to the licence; and

(d) the person is a fit and proper person to hold a licence. (4) For the purposes of subclause (3) a reference to an application to transfer units of entitlement shall

be taken to include: (a) an application made in connection with the surrender of a licence pursuant to clause

22; and (4)(b) an application made in connection with the non-renewal, cancellation or

forfeiture of a licence pursuant to clause 22A. Note: Where a licence is granted in accordance with clause 7(3) the fee relating to the units being transferred may be taken to have been paid by the transferor in respect of those units.

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Consequential Amendments 11:

14. Change in Capacity of a Zone of the Fishery

(1) The capacity applying to a Zone, as provided for in clause 13, shall be reduced upon the making of an order under section 76(2) of the Act, such reduction being the number of kilograms of rock lobster corresponding to the units of entitlement fished, or intended to be fished, in excess of the entitlement of the licence, as determined in accordance with clause 18.

(2) The capacity applying to a Zone shall be reduced upon—

(a) the expiry of the 60-day period provided for in section 139 of the Act without an application for renewal of a relevant licence having been made;

(b) the cancellation or non-renewal of a relevant licence under section 143 of the Act;

(c) the cancellation of a relevant licence under section 223 of the Act; or

(d) the surrender of a relevant licence under section 144 of the Act, such reduction being the equivalent in kilograms of rock lobster to the number of usual units of entitlement conferred by the licence.

(3) The capacity applying to a Zone shall be increased upon:

(a) the increasing of the entitlement of a relevant licence pursuant to clause 22; and

(b) the increasing of the entitlement of a relevant licence pursuant to clause 22A,,

(3) such increase being equal to the increase in the number of units that may be operated under the licence.


52. Application for grant, renewal, variation or transfer of managed fishery licence or entitlement

(1) Subject to the provisions of this Act, Aa person may apply to the CEO for — (a) a managed fishery licence to undertake a fishing activity in a managed fishery; or (b) the renewal of a managed fishery licence; or (c) the variation of a managed fishery licence; or (d) the transfer of a managed fishery licence to another person; or (e) the transfer of part of the entitlement under a managed fishery licence to another

managed fishery licence; or (f) the transfer of the whole or part of an entitlement under a managed fishery

licence to another managed fishery licence for a limited period; or (g) [see Consequential Amendment 8] the transfer of the whole or part of an

entitlement under a managed fishery licence which has not been renewed, has been cancelled or has been forfeited under this Act to another managed fishery licence.

. (2) An application must —

(a) be made in an approved form; and (b) be accompanied by the fee (if any) prescribed or specified in the management

plan; and (c) be accompanied by any information that the CEO reasonably requires for a

proper consideration of the application. (3) [With respect to the WCRL Plan ] [t]he State, or an agent of the State, cannot apply to the

CEO for — (a) a managed fishery licence to undertake a fishing activity in a managed fishery; or (b) the renewal of a managed fishery licence; or

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(c) the variation of a managed fishery licence; or (d) the transfer of a managed fishery licence to another person; or (e) the transfer of part of the entitlement under a managed fishery licence to another

managed fishery licence; or (f) the transfer of the whole or part of an entitlement under a managed fishery

licence to another managed fishery licence for a limited period; or (g) [see Consequential Amendment 8] the transfer of the whole or part of an

entitlement under a managed fishery licence which has not been renewed, has been cancelled or has been forfeited under this Act to another managed fishery licence.

.

54. Grant of managed fishery licence (1) The CEO may grant a managed fishery licence to an applicant if —

(a) the CEO is satisfied that the applicant meets any criteria for the grant of the managed fishery licence specified in the management plan; and

(b) the applicant is selected in accordance with any procedure for determining which persons are to be granted a managed fishery licence specified in the management plan.

(1A) [With respect to the WCRL Plan ], [t]he CEO must not grant a managed fishery licence to an applicant if the applicant is the State or an agent of the State.

(2) In accordance with the Personal Property Securities Act 2009 (Commonwealth) section 10 in paragraph (d) of the definition of licence, a managed fishery licence is declared not to be personal property for the purposes of that Act.

Consequential Amendments 12:

7. Criteria for the grant of a licence (1) The criteria to be satisfied before the CEO may grant a person a licence to fish in the Fishery are that—

(a) on the date of gazettal of this plan the applicant was the holder of an authorisation issued in accordance with—

(i) the West Coast Rock Lobster Management Plan 1993 in respect of a Zone of the Fishery established by that plan; or

(ii) regulation 129B, and

(b) an application for the grant of a licence is made on or prior to 29 March 2013.

(2) Only one licence may be granted under subclause (1) in respect of an authorisation issued under—

(a) the West Coast Rock Lobster Management Plan 1993 in respect of a Zone of the Fishery established by that instrument; or

(b) regulation 129B.

(3) Notwithstanding subclause (1), the CEO may grant a person a licence to fish in the Fishery if the CEO is satisfied that—

(a) immediately upon being granted a licence an application will be made under section 140 of the Act to transfer usual units of entitlement to the licence, if it is to be granted, from another licence; and

(b) the application referred to in paragraph (a) will be in respect of a total of not less than one unit; and

(c) the CEO will, pursuant to the application referred to in paragraph (a), transfer the units of usual entitlement to the licence; and

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(d) the person is a fit and proper person to hold a licence.

(4) For the purposes of subclause (3) a reference to an application to transfer units of entitlement shall be taken to include an application made in connection with the surrender of a licence pursuant to clause 22.

(5) The CEO must not grant a person a licence to fish in the Fishery if the person is the State or an agent of the State.

Note: Where a licence is granted in accordance with clause 7(3) the fee relating to the units being transferred may be taken to have been paid by the transferor in respect of those units.

Chauncey Hammond Public Administration Committee ......Final, Parliamentary Enquiry Property Rights...

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Transcript of Chauncey Hammond Public Administration Committee ......Final, Parliamentary Enquiry Property Rights...