Fish Resources Management Act 1994

The Act casts a wide net, directly regulating individuals, corporations, and government entities involved in aquatic resource use across Western Australia.

Primary affected parties are commercial fishers and operators. Anyone taking fish for sale or reward requires a commercial fishing licence (s.257(1)(a)) or, for specific managed fisheries, a managed fishery licence (s.66). Masters of fishing boats (s.257(1)(bb)), divers (s.257(1)(bc)), and those collecting broodstock (s.257(1)(bd)) must be licensed. Processors need fish processor's licences (s.82), and sellers of aquacultured fish fall under s.257(1)(h). Holders of authorisations face strict liability for contraventions by agents (s.203) or co-holders (s.202B), with corporate officers liable under s.204 (applying Criminal Code s.39 to listed offences).

Recreational fishers are regulated through bag/possession limits (ss.50–51), recreational fishing licences where prescribed (s.257(1)(b)), and prohibitions on protected species (s.48A). Fishing tours and aquatic eco-tourism providers require licences (s.257(1)(g)), and persons in charge of tours are liable for participant offences (s.202A). Aboriginal persons receive customary fishing exemptions (s.6) but lose them for commercial purposes.

Aquaculture operators are heavily impacted. Licences are mandatory (s.90), requiring a MEMP (s.92A) detailing risks, monitoring, and responses (e.g. disease protocols, benthic impacts). Lessees gain exclusive rights (s.97(3)) but must comply with lease conditions or face joint liability (s.100A). The Minister can offer leases by auction, tender, or treaty (s.97C) and holds powers over facilities (s.101A). Private land owners selling aquacultured fish are exempt only in limited cases (s.91).

Foreign interests face guidelines (s.247) and restrictions: authorisations cannot be transferred to unfit foreign persons (s.140(2)(a)(ii)), and exclusive licences are barred in marine reserves (s.252). Foreign boats are prohibited in WA waters without authorisation (ss.174–175), with severe penalties and forfeiture (s.218(1a)).

Government and agencies are bound (s.8), though not prosecutable. Public authorities must notify the Minister of waterway works (s.254). The CEO exercises licensing (ss.66, 80, 92), enforcement (Part 16), and emergency powers (s.177C). Fisheries officers (including police and naval officers, ss.180–181) and honorary officers (s.179) wield entry, seizure, and arrest powers (ss.182–193), with immunity for good-faith acts (s.244).

Advisory bodies and industry engage via Fishery Management Advisory Committees (s.41) and peak industry bodies (defined in s.4(1)). Registers record security interests (Part 12), affecting financiers. SAT reviews decisions (Part 14), impacting aggrieved applicants (s.149).

Broader community benefits from habitat protections (Part 11) and pollution controls (s.255), but faces indirect effects: designated fishing zones restrict access (s.113), and biological threat directions (s.177C) can require action from any responsible party.

Exemptions (s.7) and transitional continuations (Sch. 3) mitigate for legacy holders. In practice, compliance professionals advise clients on authorisation transfers (s.140), MEMP audits, and repeat offence risks triggering automatic suspension (s.224). The Act's reach extends to anyone possessing fish (presumptions in ss.209–210) or gear, making it pervasive for marine users.

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Duties under the Act are multifaceted, falling on authorisation holders, fishers, processors, aquaculturists, and officials. Rights are more limited, often procedural, with sustainability as the overriding imperative.

Duties of authorisation holders are central. Holders must comply with management plan provisions (s.74, intentional/reckless breach up to $80,000 and 3 years for individuals) and licence conditions (s.77). Aquaculture licensees prepare and adhere to MEMPs (s.97A, penalties up to $10,000/$20,000). Lessees avoid lease breaches (s.100A, joint liability). Records and returns are mandatory (s.62(q)), with false entries an offence (s.62(r)). Fees, levies, and royalties must be paid (ss.233–237, s.97(5)), or authorisations may be cancelled (s.143(1)(g)). Security holders receive notice of events (s.130). Death of an individual holder transfers the authorisation to the personal representative or survivors (s.146A).

Fishers' duties include observing prohibitions (s.43), protected fish rules (ss.46–48A, with mutilation offence under s.49), bag/possession limits (ss.50–51), and gear restrictions in plans (s.62(c)). Customary fishers must adhere to tradition and non-commercial purpose (s.4(1)). Masters are liable for vessel offences (s.202), and persons in charge of fishing tours for participants (s.202A). No person may use explosives (s.170), interfere with gear (s.172), or purchase unlawfully taken fish (s.173). Foreign boat prohibitions are absolute absent authorisation (ss.174–175).

Processors and aquaculturists face place-specific duties (s.86 for processors; s.95 for aquaculture licences). Construction permits (s.79) and licences (s.82) require CEO satisfaction of fitness and industry benefit. MEMPs demand ongoing monitoring of water/sediment quality, disease, and carrying capacity (s.92A(2)). Exotic fish keepers must prevent escapes (s.103A).

Officers and the CEO have duties to minimise damage (s.198), produce certificates (s.178), and act on precautionary principle (s.4A). The Minister consults before plans (s.64) or guidelines (s.248) and publishes notices (s.148). Fisheries officers may require assistance (s.197) but must not exceed reasonable necessity.

Rights are predominantly procedural. Affected persons receive notice of decisions (s.147) and may seek SAT review (s.149), with authorisations continuing pending renewal reviews (s.150). Holders may apply for variations, transfers, or renewals (ss.140–142), though not as of right (s.136). Security interests can be noted and enforced via register (ss.127–131). Exemptions are available for research, education, or enforcement (s.7). Customary fishers have statutory exemption (s.6). No compensation for most regulatory impacts (ss.108, 133), but limited payments exist for marine reserve impacts under separate legislation.

Evidentiary rights include challenging presumptions (e.g. s.205 onus on defendant for exemptions) and requiring personal evidence instead of certificates (s.212(2)). Courts may order reduced entitlements for over-quota (s.76) or additional penalties (s.222), but prosecutors must apply (s.218(2)).

Practitioners advise clients on rights to object (Part 14), negotiate conditions (s.69), or use temporary permits (s.97B). The Act balances duties with limited rights, prioritising conservation over proprietary interests (s.71: prior fishing confers no right).

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Enforcement is robust, blending administrative, civil, and criminal mechanisms with high penalties to deter non-compliance in a high-value industry.

Offence framework is tiered. General penalties for prohibited fishing, protected fish, and limit breaches (s.52) range from $1,000–$5,000 (individuals, first offence, category 4) to $10,000–$20,000 (corporates, repeats, category 1). Management plan or condition breaches attract $15,000/$30,000 strict liability or $40,000 plus 3 years/$80,000 (intentional/reckless, individuals; higher for corporates) (ss.74, 77). Trafficking in commercial quantities of priority fish is a crime: 4–10 years for individuals, $400,000–$800,000 for corporates (s.155). Foreign boat offences carry $150,000 plus 4 years (individuals) with mandatory maxima for third/subsequent offences (s.175A).

Additional sanctions include value-based penalties (s.222: 10 times fish value, irreducible except on CEO application if harsh). Courts may cancel/suspend authorisations (s.223), impose prohibitions on activities/possession (s.225, up to $80,000 plus 3 years for breach), or order forfeiture (s.218, mandatory for foreign boats under s.218(1a)). Automatic one-year suspension follows three prescribed offences in 10 years (s.224), recorded on the register. Infringement notices offer modified penalties (up to 1/5th maximum, ss.226–232).

Enforcement powers (Part 16) are extensive. Fisheries officers may enter/search land, premises, boats, vehicles without warrant in many cases (ss.182–186), or with warrant/telephone warrant (ss.187–188). They can require information (s.189), inspect authorisations (s.190), seize fish/gear/boats (s.193), and arrest without warrant (s.192). Seized fish may be returned to water or sold (s.194); abandoned gear destroyed (s.195). Obstruction or false information attracts $10,000 plus one year (ss.199–200). Officers must minimise damage (s.198) and hold certificates (s.177).

Evidentiary provisions aid prosecution: presumptions on foreign boats (s.207), purpose of sale (ss.209–210), and accuracy of equipment (s.215). Onus lies on defendant for exemptions or lawful excuse (s.205). Certificates from Registrar or authorised persons are prima facie evidence (ss.212–213).

Corporate and vicarious liability is broad: masters (s.202), tour operators (s.202A), authorisation holders for agents/co-holders (ss.202B–203), and officers under Criminal Code s.39 for listed offences (s.204). Prosecutions by CEO, officers, or authorised persons must commence within 2–5 years (s.201).

Practical enforcement relies on registers (Part 12) for tracking, SAT reviews to check decisions (Part 14), and accounts funding operations (Part 18). Recent emphasis on trafficking (Part 15A) and biological threats (Part 16A) shows evolving priorities. Compliance professionals monitor repeat offence risks under s.224 and ensure MEMPs/returns avoid s.143 cancellation grounds.

Penalties have increased post-2011 to reflect resource values, with courts ordering compensation (e.g. ss.170(2), 196(2)). Forfeiture is a powerful deterrent, especially for foreign vessels.

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The Act is not standalone; it intersects with Commonwealth, State, and environmental legislation, creating a layered regulatory web.

Commonwealth interaction is foundational. The Fisheries Management Act 1991 (Cth) (Commonwealth Act) defines key terms (Australian fishing zone, coastal waters, foreign boat – s.4(1)). Part 3 enables Joint Authorities and arrangements: State law applies to State-managed fisheries (s.23), Commonwealth law to Commonwealth-managed ones (s.24A). Joint Authorities exercise State powers (s.25), with presumptions on arrangement statements (s.27). Overlap in recreational fishing is limited (s.5(d)).

State environmental laws are integrated. The Conservation and Land Management Act 1984 (CALM Act) restricts authorisations/leases in marine nature reserves, parks, and management areas (ss.73A, 92(4)–(5), 98, 136A). Aquaculture and fishing must align with CALM management plans (ss.94(3), 98A(4)). Fish habitat protection areas cannot overlap marine reserves (s.116) and apply notwithstanding mining/petroleum Acts (s.114). The Environmental Protection Act 1986 informs MEMP pollution/environmental harm assessments (s.143(1)(ca)).

Land and planning laws intersect via aquaculture leases on Crown land or reserves (s.97(8), s.101A(1)(c) referencing Land Administration Act 1997). Waterway works require Ministerial notice (s.254). Private land aquaculture is partially exempted (s.91) but subject to tenure requirements (s.92(1)(ba)).

Animal welfare and biosecurity overlap. Fisheries officers exercise Animal Welfare Act 2002 powers for fish cruelty regulations (s.191A, made under s.258(1)(va)–(vb)). The Act overrides Biosecurity and Agriculture Management Act 2007 for biological threats (s.177A), allowing CEO directions (s.177C). Noxious/exotic fish controls (Parts 9, 9A) complement broader biosecurity.

Corporate and procedural laws apply: Personal Property Securities Act 2009 (Cth) declares authorisations/licences not personal property (ss.66(5), 83(4), 92(7)). SAT reviews under State Administrative Tribunal Act 2004 (Part 14). Interpretation Act 1984 governs subsidiary legislation (ss.44, 55) and transitional matters (Sch. 3 cl.1). Financial Management Act 2006 and Auditor General Act 2006 regulate accounts (s.243).

Industry-specific laws include the Pearling Act 1990 (cross-credited to Fisheries Research Account, s.238(4)(g)) and Fishing Industry Promotion Training and Management Levy Act 1994 (levy collection, Part 18 Division 1). Parks and Reserves Act 1895 applies to Abrolhos Islands reserve (s.123).

Conflicts are resolved by specificity: Commonwealth arrangements prevail (s.24A); CALM Act approvals are preconditions (s.92(5)). Guidelines (s.246) assist harmonisation. Practitioners must navigate dual licensing (e.g. CALM permits alongside aquaculture leases) and ensure MEMPs address EP Act harms. Court challenges often turn on these intersections, e.g. whether a management plan is consistent with marine park plans.

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Significant amendments, particularly the Fish Resources Management Amendment Act 2011 (the 2011 Act), modernised the regime to address sustainability gaps, biosecurity, and administrative efficiency.

The 2011 Act inserted the objects (s.3) and precautionary principle (s.4A), shifting from the repealed Fisheries Act 1905's narrower focus. It expanded definitions (s.4), added recreationally protected fish (s.48A), and strengthened penalties (ss.74, 77, new s.52 categories). Management plans gained explicit environmental protections (s.56(3)(b)). Authorisations were declared non-PPS property (ss.66(5) etc.).

Aquaculture overhaul was central: new Division 1 (ss.90–97B) mandated MEMPs (s.92A, with offences s.97A), temporary permits (s.97B), and lease methods (s.97C). Relationship between licences and leases was clarified (s.99), with expanded liability (s.100A) and clean-up (s.101). Ministerial aquaculture powers were broadened (s.101A). These changes responded to environmental incidents, disease risks, and industry growth, ensuring monitoring of nutrient loads, biosecurity, and benthic impacts.

Part 9A (exotic fish) and s.103A (CEO intervention powers) addressed escape risks from aquaculture. Part 15A criminalised trafficking (ss.153–156), targeting organised illegal trade with high penalties, reflecting global IUU fishing concerns. Emergency biological threat powers (Part 16A) overrode BAM Act for rapid response.

Enforcement tightened: s.175A mandatory sentences for repeat foreign boat offences; s.224 automatic suspensions; expanded SAT jurisdiction (Part 14). Registers now note convictions (s.126(d)). Financial accounts were rationalised (repealing ss.241–242, transferring funds per s.270).

Why these changes? The 1994 Act's limited-entry focus was outdated amid declining stocks, climate pressures, and aquaculture expansion. The 2011 amendments implemented national ESD principles, aligned with Commonwealth reforms, and responded to reviews highlighting enforcement weaknesses and habitat degradation. Post-2011 regulations have prescribed priority species, MEMP details, and fees (ss.257–259).

Subsequent tweaks (e.g. 2007 foreign boat amendments, 2009 arrangements) refined without altering core scope. The 2023 Directors' Liability Reform Act updated s.204. Future Aquatic Resources Management Act 2016 (uncommenced) may consolidate, but the 1994 Act remains operative. Changes emphasise precaution, accountability, and integration, driven by sustainability science and economic imperatives.

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Case law under the Act is limited but reveals recurring tensions around procedural fairness, evidentiary presumptions, and scope of powers. No major High Court challenges are recorded in the source text, but SAT and Magistrates Court decisions illustrate practical controversies.

In SAT reviews (s.149), disputes often centre on licence refusals (s.143 grounds: fitness, foreign interest, unpaid fees) or conditions. Re: Applicant A (hypothetical based on s.147 notice requirements) would test whether CEO reasons adequately address management plan criteria (s.66). Controversies arise where SAT balances individual rights against precautionary principle (s.4A), e.g. refusing aquaculture leases in sensitive benthic areas (s.92(1)(c)).

Forfeiture and seizure cases (ss.193, 218) generate disputes. Courts must be satisfied on reasonable grounds; challenges to boat seizures for foreign vessel offences (ss.174–175) test "equipped with fishing gear" (s.175(2)(b) defence: stored/secured, shortest route). Mandatory sentences under s.175A for repeats have raised proportionality arguments, though the Act mandates them.

Evidentiary provisions face scrutiny. Presumptions (fish for sale on commercial premises, s.210; foreign boat, s.207) shift onus, leading to challenges where defendants prove contrary (s.205). Size/weight determinations (s.214) using prescribed methods have been contested in bag limit cases (s.50). Accuracy of officer equipment is presumed (s.215) unless rebutted.

Liability provisions provoke controversy. Holder liability for agents (s.203) or co-holders (s.202B) requires proving lack of consent and reasonable measures (defence in s.100A(7) for leases). Master liability (s.202) defences (proper instructions, no knowledge) are fact-specific. Corporate officer liability (s.204, applying Criminal Code s.39 to tabled offences including trafficking s.155) raises due diligence questions.

Management plan challenges (ss.54–65) question consultation adequacy (s.64) or whether amendments are "minor" (s.65(3)). Joint Authority exercises (s.25) have been litigated over whether State or Commonwealth law governs specific acts.

Environmental controversies include MEMP compliance (s.97A) and habitat protection (Part 11). Ministerial prohibitions (s.255) on polluting activities have been reviewed under s.255(5) for reasonableness. No compensation for reserve impacts (cross-referenced to Fishing and Related Industries Compensation (Marine Reserves) Act 1997) has caused industry discontent.

Gotchas include register notations binding successors (s.126) and automatic suspension for three offences regardless of holder changes (s.224(3)(a)). Foreign interest guidelines (s.247) create opaque refusal grounds (s.140(2)(a)(ii)).

Overall, courts uphold the Act's sustainability purpose but scrutinise procedural fairness. Controversies highlight tensions between strict liability and natural justice, with calls for clearer MEMP templates and penalty proportionality.

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Most practitioners miss nuances that can trigger cascading liabilities or lost opportunities. Here are expert insights grounded in the text.

First, entitlement reductions are mandatory and rounded (s.76). On conviction for intentional plan breach (s.74(1)) or condition breach (s.77(1)) where excess can be quantified, the court must order reduction by the excess (rounded to nearest unit). This applies even if the fish value penalty (s.222) is imposed. Few realise forfeited entitlements can be resold only to plan-compliant buyers (s.76(4)), potentially at a discount, affecting business valuation.

Second, MEMP contraventions trigger dual liability and cancellation (ss.97A, 143(1)(ca)). The 2011 insertion means aquaculture licensees must lodge MEMPs within two years of commencement for pre-existing licences (s.92A(3)), with ongoing audit obligations. Pollution or harm from MEMP breach risks immediate cancellation, even without conviction. The CEO's opinion on "risk" (s.143(1)(ca)(ii)) is broad; get independent audits early.

Third, register security notations are not mere formalities (ss.127–131). A noted security holder must be notified of convictions, variations, transfers, or cancellations (s.130), creating 21-day delays (ss.140(4), 142(5)). Failure to remove notations before sale can cloud title. Irrelevant matters (s.129) do not bind the Registrar, but practitioners overlook that notations survive changes in membership of Joint Authorities (cross-referenced via s.19).

Fourth, three offences in 10 years trigger automatic suspension regardless of holder (s.224(3)(a)). A conviction recorded against the authorisation (not the person) follows it on transfer. This catches buyers of "clean" authorisations with hidden histories. Transitional s.78A allows replacement authorisations post-s.224 (pre-2011 version), but fees equal full renewal.

Fifth, evidentiary presumptions are hard to rebut. Fish on a fishing boat are presumed for sale (s.210(1)); on processor premises too (s.210(3)). "Purpose of sale" is conclusively proven by subsequent sale (s.209). Foreign boat presumptions (s.207) and package labels (s.208) shift proof burdens. Certificates are evidence unless 14-day notice requires personal attendance (ss.212(2), 213(4)), an overlooked tactic.

Sixth, aquaculture leases terminate automatically on licence cancellation and vice versa (s.99(2)–(3)). This linkage is often missed in due diligence; a minor MEMP breach can collapse both. Clean-up costs are recoverable as debt (s.101(2)(b)), with security conditions possible (s.97(7A)).

Seventh, guidelines are mandatory considerations but not binding (s.246(4)–(5)). Fisheries personnel must take them into account, yet discretion remains. Foreign interest guidelines (s.247) have blocked transfers without reasons being reviewable beyond Wednesbury.

Eighth, no compensation for Registrar acts or noxious fish destruction (ss.108, 133) surprises clients. Incidental damage from officer actions is at owner's risk.

Ninth, temporary transfers of entitlements are plan-specific (s.60(h), s.141). Not all plans allow them; breaches reduce entitlements permanently.

Tenth, precautionary principle applies to all functions (s.4A): lack of certainty cannot justify postponing cost-effective measures. This has been used to refuse renewals in data-poor fisheries.

Always audit histories via the register (s.125, public except recreational licences) and model s.224 risks in transactions. These gotchas justify specialist advice.

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Compliance requires a systematic approach integrating licensing, documentation, monitoring, and audit readiness. Begin with gap analysis against the specific fishery or activity.

Step 1: Obtain and maintain authorisations. Apply using CEO-approved forms with prescribed fees and supporting information (s.135). For managed fisheries, satisfy plan criteria (s.66); for aquaculture, prepare MEMP addressing species, densities, water/sediment quality, disease, translocation, and audits (s.92A(2)). Renewals are near-automatic subject to s.143 (no unpaid fees, fit and proper, no foreign issues) (s.68). Vary only if plan criteria met (s.142(3)). Transfers require CEO approval; notify Registrar and security holders (ss.140(3)–(5)). Record security interests promptly (s.127).

Step 2: Adhere to management plans and conditions. Plans prohibit excess of entitlements (s.60(g)); expiate via payment to Fisheries Research Account (s.60(ha)). Keep records, submit returns (s.62(q)), and avoid false entries (s.62(r)). For aquaculture, implement MEMP protocols; audit annually. Processors store only at licensed places (s.86). Mark gear, use bycatch reduction devices where required (s.62(k)).

Step 3: Observe prohibitions and limits. Check protected lists (s.45), bag/possession limits (ss.50–51), and closed seasons/areas (s.61). Customary fishers document tradition. Avoid noxious/exotic releases (ss.104–105); report escapes (s.103A). No explosives (s.170), interference (s.172), or unlawful sales (s.173). For trafficking, ensure all dealings are authorised (s.155).

Step 4: Engage with officers and reporting. Facilitate boarding (s.200(a)); produce authorisations (s.190). Report positions, landings (s.62(s)). Comply with directions to secure premises (s.191(1)(s)) or deliver fish/gear (s.191(1)(u)). For MEMPs or biological threats, follow CEO notices (s.177C).

Step 5: Financial and register compliance. Pay levies, fees, royalties on time (ss.233, 97(5)); instalments attract surcharges. Update register for changes (s.132). Notify security holders of events.

Step 6: Environmental and habitat measures. In fish habitat areas or reserves, observe regulations (s.120, s.121). For leases, rehabilitate on termination (s.101). Avoid pollution (s.255); notify waterway works (s.254).

Step 7: Internal controls and training. Issue written instructions to agents/masters (defence under ss.202–203). Train on presumptions and onus (Part 17 Division 3). Conduct mock audits of records, MEMPs, and s.224 history. Use guidelines (s.246) for CEO decision-making.

Step 8: Review and respond. Monitor SAT precedents on reviews (s.149). For notices of decisions (s.147), apply within time. If infringed, pay modified penalty or elect court (s.232). Post-incident, preserve evidence for defences (e.g. immediate return of protected fish, s.48).

Step 9: Seek exemptions or adjustments. Apply for s.7 exemptions (research, enforcement) or temporary permits (s.97B). Participate in advisory committees (s.41) to influence plans.

Document everything: statutory declarations where required (s.135(3)). Engage consultants for MEMPs and risk assessments. Annual compliance certificates to boards reduce officer liability (s.204). Non-compliance risks not just fines but business closure via cancellation (s.143) or forfeiture (s.218). For cross-border operations, confirm arrangement status (Part 3).

This framework, if embedded in operations manuals with regular legal refreshers, minimises exposure in a high-scrutiny environment.

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