Fisheries (Commercial Dive) Rules 2005

Fisheries (Commercial Dive) Rules 2005

I make the following rules under the Living Marine Resources Management Act 1995 .

STEVEN KONS

Minister for Primary Industries and Water

PART 1 - Preliminary

1.   Short title

These rules may be cited as the Fisheries (Commercial Dive) Rules 2005 .

2.   Commencement

(1)  These rules, other than rule 11, take effect on 21 December 2005.

(2)  Rule 11 takes effect on 1 September 2006.

3.   Interpretation

In these rules –

abalone means fish of the genus Haliotis;

Act means the Living Marine Resources Management Act 1995 ;

commercial dive fishery means the taking, for commercial purposes, of fish other than abalone and rock lobster by diving or swimming beneath the surface of State waters;

commercial diver's docket means a docket in a form approved by the Secretary that –

(a) relates to the taking of controlled fish; and

(b) is part of the records required to be kept under the Act;

controlled fish means –

(a) periwinkles; or

(b) sea urchins; or

(c) whelks;

direct sale, in relation to controlled fish, means the sale of controlled fish to a person who is not the holder of a fish processing licence;

Grade 2 penalty means the penalty specified in regulation 6 of the Fisheries Penalties Regulations 2001 ;

Grade 3 penalty means the penalty specified in regulation 7 of the Fisheries Penalties Regulations 2001 ;

holder of a fishing licence includes a person who has approval to use the licence under section 87(2) of the Act;

kind includes genus and family;

periwinkle means mollusc of the genus Turbo;

rock lobster means rock lobster of the genus Jasus;

sea urchin means sea urchin of the genus Heliocidaris or Centerostephanus;

take means take by diving or swimming underwater;

whelk means mollusc of the family Buccinidae or Fasciolariidae.

4.   Application of rules

These rules apply to the commercial dive fishery.

5.   Duration of rules

These rules continue in force for 5 years.

6.   Consultation arrangements

The Minister is to consult with the relevant fishing body in relation to the commercial dive fishery about any changes relating to –

(a) the areas where fishing may occur; and

(b) any matter relating to the characteristics of controlled fish; and

(c) the opening and closing of the fishery; and

(d) fishing gear; and

(e) limits on the taking and possession of controlled fish; and

(f) the setting of performance measures.

7.   Classes of fishing licence

For the purpose of these rules, a fishing licence is of the following classes:

(a) class commercial dive, fishing licence (commercial dive);

(b) class personal, fishing licence (personal).

PART 2 - Licences

8.   Authority of licences

A fishing licence (commercial dive) only authorises the holder of the licence to take the following:

(a) controlled fish;

(b) fish of a kind specified in an endorsement on the licence under rule 9 .

9.   Endorsement of licences

The Secretary may endorse a fishing licence (commercial dive) to allow the holder of the licence to take a kind of fish other than controlled fish.

10.   Number of licences

The Minister is to ensure that no more than 55 fishing licences (commercial dive) are in force at any one time.

[Commences: 1 September 2006

]

12.   Restrictions on holding of licences

(1)  A fishing licence (commercial dive) is not capable of being held or used other than by a natural person.

(2)  The holder of a fishing licence (commercial dive) must not hold more than one fishing licence (commercial dive) at any one time.

Penalty:  Grade 3 penalty.

PART 3 - General management of fishery

13.   Closed and open seasons

(1)  The Minister, by public notice, may determine –

(a) the dates of the closed season for all or part of the commercial dive fishery; and

(b) the dates of the open season for all or part of the commercial dive fishery.

(2)  The holder of a fishing licence (commercial dive) must not take controlled fish from State waters that are closed to the commercial dive fishery for that kind of controlled fish.

Penalty:  Grade 3 penalty.

(3)  The holder of a fishing licence (commercial dive) must not be in possession of controlled fish in State waters that are closed to the commercial dive fishery for that kind of controlled fish.

Penalty:  Grade 3 penalty.

14.   Minimum size limits

(1)  The Minister, by public notice, may determine a minimum size limit for a kind of controlled fish.

(2)  The holder of a fishing licence (commercial dive) must not take or be in possession of a controlled fish that is smaller than the minimum size limit determined by the Minister under subrule (1) for that kind of controlled fish.

Penalty:  Grade 3 penalty.

15.   Total allowable catch

(1)  The Minister, by public notice, may determine the maximum live weight of a kind of controlled fish that the holder of a fishing licence (commercial dive) may, during such periods as are specified in the notice, take from –

(a) the commercial dive fishery; or

(b) any part of the commercial dive fishery.

(2)  The holder of a fishing licence (commercial dive) must not contravene a public notice under subrule (1) .

Penalty:  Grade 3 penalty.

(3)  In this rule –

live weight means the whole weight of a fish before it is dismembered, dried or otherwise processed.

PART 4 - Reporting

16.   Commercial diver's docket – Part A

(1)  The holder of a fishing licence (commercial dive) must complete the information relating to the taking of controlled fish in Part A of a commercial diver’s docket –

(a) on the day on which the controlled fish are taken; and

(b) before transferring or selling the controlled fish.

Penalty:  Grade 2 penalty.

(2)  The holder of a fishing licence (commercial dive) must ensure that the information entered on Part A of a commercial diver’s docket is recorded and maintained in a clear and legible manner on each sheet of the commercial diver’s docket.

Penalty:  Grade 2 penalty.

17.   Commercial diver's docket – Part B

(1)  The holder of a fishing licence (commercial dive) who makes a direct sale of controlled fish on any day must, before the end of that day, specify, in Part B of the commercial diver’s docket relating to the controlled fish, the total weight of each kind of controlled fish so sold.

Penalty:  Grade 2 penalty.

(2)  The holder of a fish processing licence must, on taking possession of controlled fish from the holder of a fishing licence (commercial dive), immediately complete Part B of the commercial diver’s docket relating to the controlled fish.

Penalty:  Grade 2 penalty.

(3)  A person who enters information on Part B of a commercial diver’s docket as required by subrule (1) or (2) must ensure that the information is recorded and maintained in a clear and legible manner on each sheet of the commercial diver’s docket.

Penalty:  Grade 2 penalty.

18.   Completed commercial diver's docket – obligation of licensee

(1)  The holder of a fishing licence (commercial dive) must ensure that, once Part B of a commercial diver’s docket has been completed, the pink sheet of the docket is received by the Secretary within 48 hours.

Penalty:  Grade 2 penalty.

(2)  The holder of a fishing licence (commercial dive) must keep the white sheet of a completed commercial diver’s docket, in good condition, for at least 5 years.

Penalty:  Grade 2 penalty.

19.   Completed commercial diver's docket – obligation of fish processor

(1)  The holder of a fish processing licence must not take possession of controlled fish from the holder of a fishing licence (commercial dive) unless the holder of the fish processing licence has been given the yellow sheet of the completed commercial diver’s docket relating to the controlled fish.

Penalty:  Grade 2 penalty.

(2)  The holder of a fish processing licence who takes possession of controlled fish from the holder of a fishing licence (commercial dive) must –

(a) keep the yellow sheet of the completed commercial diver’s docket relating to the controlled fish with the controlled fish while they are being processed; and

(b) keep the yellow sheet of the completed commercial diver’s docket relating to the controlled fish, in good condition, for at least 5 years.

Penalty:  Grade 2 penalty.

PART 5 - Controls and offences

20.   Taking fish for commercial purposes by diving or swimming underwater

(1)  A person must not take controlled fish for commercial purposes unless the person is the holder of –

(a) a fishing licence (commercial dive); and

(b) a fishing licence (personal).

Penalty:  Grade 3 penalty.

(2)  The holder of a fishing licence (commercial dive) must not take fish other than controlled fish under the licence except in accordance with an endorsement under rule 9 .

Penalty:  Grade 3 penalty.

21.   Certain vessels not to be used for taking controlled fish

The holder of a fishing licence (commercial dive) must not take controlled fish using a fishing vessel that is not specified in a fishing licence (vessel).

Penalty:  Grade 3 penalty.

22.   Diving, &c., from vessels being used in fishery

(1)  A person must not dive or otherwise enter the water from a vessel that is being used by another person for fishing under the authority of a fishing licence (commercial dive) unless the first-mentioned person is also the holder of a fishing licence (commercial dive).

Penalty:  Grade 2 penalty.

(2)  The holder of a fishing licence (commercial dive) must not, at any time, dive or otherwise enter the water from a vessel if, at that time, 2 or more other persons are using the vessel for fishing under the authority of a fishing licence (commercial dive).

Penalty:  Grade 2 penalty.

23.   Possessing abalone, lobster or certain equipment on vessels being used in fishery

(1)  A person who is on a vessel being used for fishing under the authority of a fishing licence (commercial dive) must not be in possession of any of the following:

(a) abalone;

(b) rock lobster;

(c) a rock lobster pot;

(d) a rock lobster ring;

(e) a fishing net;

(f) a fish trap.

Penalty:  Grade 3 penalty.

(2)  In this rule –

fish trap means a rigid or semi-rigid mesh trap that –

(a) is no more than 2 metres long by 2 metres wide by one metre deep; and

(b) has a fixed rectangular entrance no more than 250 millimetres wide by 57 millimetres high; and

(c) has a mesh size of more than 25 square millimetres;

rock lobster pot means –

(a) a basket, trap, cage or other contrivance (other than a rock lobster ring) that is designed for use, or is capable of being used, for or in connection with the taking of rock lobsters; or

(b) a component part of such a basket, trap, cage or contrivance;

rock lobster ring means a net that –

(a) consists only of a single fixed ring or hoop to which a mesh of string or twine is attached; and

(b) is designed for use, or is capable of being used, for or in connection with the taking of rock lobsters;

taking is not restricted to taking by diving or swimming underwater.

(3)  For the purposes of this rule, the mesh size of a trap is taken to be the average measurement of 10 adjoining meshes in the trap.

24.   Engaging in recreational fishing while participating in commercial dive fishery

A person must not, while fishing under the authority of a fishing licence (commercial dive), engage in any recreational fishing for which a licence is required under the Act.

Penalty:  Grade 2 penalty.

25.   Commercial dive direct sales receipt

(1)  The holder of a fishing licence (commercial dive) who makes a direct sale of controlled fish must –

(a) immediately complete and issue a commercial dive direct sales receipt to the purchaser of the controlled fish; and

(b) keep a copy of the completed commercial dive direct sales receipt, in good condition, for at least 5 years.

Penalty:  Grade 2 penalty.

(2)  In this rule –

commercial dive direct sales receipt means a receipt relating to the sale of controlled fish that is part of the records required to be kept under the Act.

26.   Permitted methods for taking sea urchins

(1)  The holder of a fishing licence (commercial dive) must not take sea urchins other than –

(a) by hand; or

(b) with tongs; or

(c) with a single pronged hook.

Penalty:  Grade 2 penalty.

(2)  In this rule –

tongs means an apparatus –

(a) used for holding items; and

(b) consisting of 2 arms that each have a single prong or flattened end no more than 100 millimetres wide.

27.   Legislation rescinded

The legislation specified in Schedule 1 is rescinded.

SCHEDULE 1 - Legislation rescinded

Rule 27

Displayed and numbered in accordance with the Rules Publication Act 1953.

Notified in the Gazette on 21 December 2005

These rules are administered in the Department of Primary Industries, Water and Environment.