Fisheries Adjustment Schemes Regulations 2009

The central concept is a “voluntary fisheries adjustment scheme”. This is a scheme established by a notice under the Fisheries Adjustment Schemes Act 1987 that allows licence holders in a particular fishery to voluntarily surrender or adjust their fishing entitlements, often in return for compensation or to reduce fishing effort. The regulations do not describe the substance of these schemes; they merely impose fees “for the purposes of” the scheme. The implication is that the fees fund the scheme or contribute to a fund for adjustment payments. Each of the three parts of the regulations corresponds to a different geographic fishery: the Abrolhos Islands Fishery (Part 2), the Shark Bay Prawn Managed Fishery (Part 4), and the Shark Bay Scallop Managed Fishery (Part 5). Each part defines the terms unique to that fishery by cross referencing voluntary scheme notices, which are not reproduced in the regulations. For example, the “Abrolhos Islands Voluntary Scheme” is defined as the scheme established by the Abrolhos Islands and Mid West Trawl Managed Fishery Voluntary Fisheries Adjustment Scheme Notice 2009 as amended by subsequent notices. The term “authorisation” is used in Parts 2 and 4 to mean the fishing entitlement that attracts the fee. In Part 5, the fee is imposed per “managed fishery licence”, with a special provision for one specific licence (SBSC2094). The key distinction is that for the Shark Bay Scallop Fishery, there are two different schedules: one for most licences and a separate, smaller schedule for licence SBSC2094. The fee tables are the core of each part, listing amounts and dates. Fees are payable to the CEO at the Department’s head office, meaning physical or electronic payment to a central location. The concept of “waiver” appears only in regulations 5 and 12: for the Abrolhos Islands and Shark Bay Prawn fisheries, the fee that would have been due on 1 March 2021 is waived. This waiver does not apply to any other fees, and it does not apply to the Shark Bay Scallop Fishery. The regulations also implicitly define a “fee imposed” as a debt due to the Crown, though that characterisation is not stated in the text; it would flow from the Act. The compilation table at the end shows the regulations have been amended nine times between 2009 and 2021, demonstrating that fee amounts and schedules have been updated as schemes have been modified or extended. The deletion of Part 3 (which is noted as deleted in 2019) suggests that earlier fisheries were removed from the scope of the regulations, possibly because their schemes concluded or were restructured.

The regulations directly affect a narrowly defined group: holders of fishing authorisations or managed fishery licences in three specific Western Australian fisheries. In the Abrolhos Islands Fishery, any person who holds an “authorisation” to fish in that fishery is liable to pay the fees listed in regulation 4. The fees are in the order of $84,000 to $112,000 per year, with seven payments due from 2021 to 2027. This is a substantial annual cost for what is likely a small number of commercial fishing operators. The same applies to the Shark Bay Prawn Managed Fishery, where four payments of roughly $52,000 to $56,000 were due in 2021. For the Shark Bay Scallop Managed Fishery, licence holders (other than the holder of licence SBSC2094) faced fees of $110,097 in 2020, $109,521 in 2021, $52,496 in 2022, and $51,526 in 2023. The holder of licence SBSC2094 had a separate schedule of $107,526 in 2020 and $106,951 in 2021, but no further fees appear for that licence after 2021. The regulations do not specify how many licences exist in each fishery, but given the specialised nature of these fisheries (Abrolhos Islands rock lobster and wetline, Shark Bay prawns, and Shark Bay scallops), the number of affected entities is likely small, possibly in the dozens. Each fee is per authorisation or licence, not per business; if a business holds multiple licences, it would pay multiple fees. The regulations also affect the CEO of the Department, as the recipient of payment and the person responsible for administering the fee collection. The waiver provisions benefit holders of authorisations in the Abrolhos Islands and Shark Bay Prawn fisheries by relieving them from one specific payment, but that benefit is limited to the 1 March 2021 fee as it stood before the 2021 amendment. The public is not directly affected, but there may be indirect effects: if the fees cause licence holders to exit the fishery or reduce fishing effort, that could affect seafood supply, prices, and employment in regional communities. The regulations do not mention any exemption for small operators, hardship provisions, or payment plans, so the compliance burden falls fully on each licence holder regardless of their financial circumstances. Given the large amounts, the fees may represent a significant portion of a fishing business’s annual operating costs, potentially making some operations unviable.

The primary duty is the obligation to pay the specified fee by the specified date to the CEO at the head office of the Department. This duty arises directly from regulations 4, 11, 14, and 15. The duty is not contingent on receiving an invoice or notice; it is self executing based on the licence holder’s status. The duty is to pay the exact dollar amount listed in the table. The regulations do not specify any method of payment (e.g., electronic transfer, cheque) beyond “payable to the CEO at the head office of the Department”. This creates an obligation on the payer to ascertain the correct payment method from the Department. There is no duty to apply for the waiver; the waiver in regulations 5 and 12 operates automatically: the fee “is waived”. This means the licence holder has a right not to pay that particular fee, and the Department has no right to demand it. However, the waiver only applies to the fee that “would have been” payable on 1 March 2021 under the regulations as they stood before the 2021 amendment. This creates a potential complexity: if a licence holder had already paid that fee before the waiver took effect, there is no provision for a refund; the waiver simply says the fee is waived, not that any payments already made are to be returned. The holder of a managed fishery licence in the Shark Bay Scallop Fishery (other than SBSC2094) has a duty to pay four fees from 2020 to 2023; the holder of licence SBSC2094 has a duty to pay two fees in 2020 and 2021. After those dates, no further fees are imposed for that fishery in the regulations, meaning the duty ends. For the Abrolhos Islands Fishery, the duty extends to 2027, creating a long term obligation. Licence holders also have the right to participate in the underlying voluntary fisheries adjustment scheme, but the regulations do not specify what that entails. They may also have the right to seek information from the Department about the scheme or to challenge the validity of the fee imposition, though the regulations do not provide any internal review mechanism. The only right explicitly granted in the regulations is the waiver right; all other provisions impose duties only. There is no right to a refund if overpaid, no right to a payment extension, and no right to dispute the amount. The practical right of the licence holder is to either pay or not pay, with the consequence of non payment being a matter of enforcement under the Act or general law.

The regulations themselves do not prescribe any penalties for non payment or late payment of fees. There are no late payment penalties, interest charges, or criminal offences created within the text. This means that enforcement relies entirely on the Fisheries Adjustment Schemes Act 1987 and any general legal mechanisms for recovering debts owed to the Crown. Under section 8 of the Act, regulations may impose fees, and it is likely that non paid fees become a debt recoverable in a court of competent jurisdiction. The regulations also do not specify any consequence such as suspension or cancellation of the authorisation or licence for non payment. However, it is common in fisheries legislation for non payment of fees to be grounds for suspension or non renewal of licences under the primary Fish Resources Management Act 1994 or equivalent. The regulations are silent on that interaction. The absence of any express penalty in the regulations is notable because it shifts the enforcement burden to other instruments, potentially creating ambiguity for licence holders about what happens if they cannot pay. The regulations do not create an offence for providing false information related to fee payment, nor do they authorise the CEO to take administrative action. The only administrative action mentioned is the waiver, which is executed by the amendment regulation itself. Because the fees are large and the number of licence holders is small, enforcement is likely to be pursued actively by the Department. A licence holder who fails to pay a fee could be sued for the debt, with the Department potentially also seeking to revoke the licence under other legislation. The regulations do not provide any defence or excuse for non payment. The compiled table shows that the regulations have been amended multiple times to adjust fee amounts, suggesting that the Department monitors compliance and adjusts the scheme as needed. The lack of express penalties in the regulations may be a gotcha: a practitioner might assume that penalties are set out somewhere, but they are not in this instrument. The parent Act should be consulted to understand the full enforcement framework. Additionally, because the fees are imposed “for the purposes of” a voluntary scheme, there could be an argument that if the scheme is not properly constituted or if the scheme changes, the fee imposition could be challenged, but the regulations themselves do not address that.

The regulations are made under the Fisheries Adjustment Schemes Act 1987 (WA) and are expressly “for the purposes of” voluntary fisheries adjustment schemes established under that Act. The Act itself is the primary legislation that authorises the creation of these schemes and the imposition of fees by regulation. The regulations do not reproduce the Act, so a reader must refer to the Act to understand the legal character of the schemes, the powers of the CEO, and enforcement mechanisms. The regulations also interact with specific notices: the Abrolhos Islands and Mid West Trawl Managed Fishery Voluntary Fisheries Adjustment Scheme Notice 2009 (and its amendments), the Shark Bay Prawn Managed Fishery Voluntary Fisheries Adjustment Scheme Notice 2010, and the Shark Bay Scallop Managed Fishery Voluntary Fisheries Adjustment Scheme Notice 2010. These notices are not included in the regulations but are cross referenced. They will define the terms of the voluntary scheme, including who can participate, what adjustments are possible, and how compensation is determined. The regulations merely impose the fees that fund or accompany those schemes. The regulations also interact with the broader fisheries regulatory framework in Western Australia, particularly the Fish Resources Management Act 1994 and any management plans or notices governing each fishery. The terms “authorisation” and “managed fishery licence” are likely defined by reference to that Act. A holder of an authorisation under the Fish Resources Management Act would be the same entity liable under these regulations. If a licence is transferred, surrendered, or cancelled under that Act, the fee obligation under these regulations may be affected, but the regulations do not address that scenario. The waiver provisions (regulations 5 and 12) interact retroactively with the regulations as they stood before the 2021 amendment. This means that a licence holder who had already paid the March 2021 fee before the waiver took effect might have a claim for restitution under general law, but the regulations do not provide for a refund. There is no interaction with Commonwealth fisheries law because these are all State waters fisheries. The regulations do not touch on taxation, stamp duty, or GST, although the fees would likely be subject to GST if the supply is taxable. The compilation table shows that the regulations have been amended numerous times, often to insert new fee schedules or delete obsolete parts (e.g., Part 3 was deleted). This means that earlier versions of the regulations may still be relevant for periods before amendments, such as for fee obligations that arose in 2020 for the Shark Bay Scallop Fishery. The interaction with the Interpretation Act 1984 (WA) is also relevant for understanding how the regulations are read with amendments and transitions.

The regulations were originally made in 2009 and commenced on 9 December 2009. The first amendment in 2010 inserted headings and definitions. The 2011 amendment inserted Parts 4 and 5 for the Shark Bay prawn and scallop fisheries, expanding the scope. The 2015 amendment amended the Abrolhos Islands Notice definition. The 2016 amendment further amended that definition. A reprint occurred in March 2017. The 2017 amendment (published January 2018) inserted the current fee schedule for Abrolhos Islands (regulation 4 with the table of seven fees) and appears to have replaced an earlier fee schedule. The 2019 amendment deleted Part 3 (which had covered an unspecified fishery) and inserted new fee schedules for the Shark Bay Scallop Managed Fishery (regulations 14 and 15), while also amending the definition of “managed fishery licence”. The 2020 amendment is not reflected in the substantive provisions shown, but it appears in the compilation table; it may have made minor changes not captured in the current text. The 2021 amendment (SL 2021/29) inserted regulations 5, 11, and 12, which imposed new fees for the Shark Bay Prawn Fishery for 2021 and waived the March 2021 fee for both the Abrolhos and Shark Bay Prawn fisheries. It also deleted regulation 12A (which is not shown). This amendment shows a pattern: as each fishery’s scheme evolved, the regulations were updated to reflect new fee amounts and dates. The deletion of Part 3 in 2019 suggests that the fishery covered by that part (possibly a previous iteration of a scheme) was wound up or merged into another scheme. The history reveals that the regulations are a living instrument, frequently amended to adjust fees and terms. For practitioners, this means that relying on a reprint without checking subsequent amendments is risky. The fee amounts have changed substantially over time. For example, the Abrolhos fees in the current table range from $101,115 to $112,921, but earlier schedules may have had different amounts. The waiver in 2021 was a one off event, likely a response to economic conditions (possibly COVID 19), but the regulations do not state the reason. The amendment history does not show any litigation or challenge to the amendments.

The regulations and the source text do not mention any litigation history. No cases are cited, and no judicial decisions are noted in the compilation table or elsewhere. This does not necessarily mean no litigation has occurred; it is simply absent from the source. Given the high value of the fees and the small number of licence holders, it is plausible that disputes could have arisen over the validity of the fee imposition, the interpretation of the voluntary scheme notices, or the calculation of amounts. However, without any mention in the regulations or the parent Act as reproduced, we cannot infer any particular litigation. The regulations are a relatively obscure piece of subordinate legislation, unlikely to generate high profile court cases. Any litigation would likely be in the Western Australian Supreme Court or the State Administrative Tribunal, but no such cases are recorded in the source. For the purposes of this deep dive, the litigation history is a blank. That itself is notable: the regulations have operated largely without judicial challenge, suggesting either that the fees are accepted by the industry or that disputes are resolved through administrative means or private settlement. Alternatively, the small number of affected parties may not have the resources or incentive to litigate given the regulatory relationship with the Department. The absence of litigation does not mean the regulations are legally perfect; it simply means no reported decisions are available. Practitioners should not assume that the absence of case law means the regulations are immune from challenge. Potential grounds for challenge could include: whether the fee is truly imposed for the purposes of a valid voluntary scheme, whether the notice itself is valid, or whether the regulations exceed the power granted by section 8 of the Act. The regulations contain no savings clause or transitional provision that would indicate past litigation.

Several traps exist for the unwary. First, the waiver of the 1 March 2021 fee applies only to fees that were payable under the regulations as in force immediately before the 2021 amendment. If a licence holder had already paid that fee before the amendment came into effect on 27 March 2021, the regulation does not provide for a refund. The waiver is not a refund mechanism; it merely says the fee is waived. A holder who paid early may need to seek a refund administratively or rely on general principles of restitution. Second, the fee schedules are not cumulative. For the Abrolhos Islands Fishery, the table lists seven fees from 2021 to 2027. Each fee is a separate obligation payable by the date shown. A holder who pays only one fee is not relieved of the others. Third, the definition of “authorisation” and “managed fishery licence” are cross referenced to other documents: the Abrolhos Islands Notice and the Shark Bay notices. If those notices change, the definition may change, potentially altering who is liable. The regulations incorporate those notices as amended up to specific dates (e.g., for Abrolhos, as amended by the 2010 and 2015 amendment notices), but not future amendments. This means that if the underlying notice is further amended after 2015, the definition in the regulations may become stale or inconsistent. Fourth, the term “voluntary” in the scheme name may create confusion. A licence holder might assume that participation in the scheme is optional and that the fees are only payable if they choose to participate. However, the regulations impose fees “for the purposes of” the scheme, without stating that participation is voluntary. The Act would need to be consulted to determine whether the scheme is truly voluntary and whether a holder can opt out, and if so, whether the fee still applies. The regulations do not answer that question. Fifth, the payment must be made to the CEO at the head office of the Department. This is a specific address, not a generic payment portal. Failure to use the correct address could result in late payment, and the regulations do not provide a grace period. Sixth, the Shark Bay Scallop Fishery has two schedules: one for most licences and one for licence SBSC2094. The fees for SBSC2094 are only for 2020 and 2021, but the general schedule extends to 2023. If a licence holder mistakenly uses the wrong schedule, they may underpay or overpay. Seventh, the deletion of Part 3 means that any fishery previously covered by that part is no longer subject to these regulations, but obligations that arose before the deletion (i.e., fees that became due before 21 September 2019) may still be enforceable. The regulations do not contain a savings provision for that. Eighth, the regulations do not specify whether fees are inclusive of GST or other taxes. The amounts appear as round dollar figures, but commercial operators must determine their own GST treatment. Ninth, the compilation table notes that the regulations have been amended multiple times, and the text shown is a compilation. A practitioner relying on a printed version must ensure it includes all amendments up to the relevant date. Finally, there is no provision for late payment or hardship. If a licence holder cannot pay on time, they have no explicit right to an extension or payment plan.

To comply with these regulations, a licence holder must identify which part applies to their fishery and then locate the correct fee schedule. For the Abrolhos Islands Fishery, the holder must pay the fee shown in regulation 4 table by the corresponding date. Payment must be made to the CEO at the Department’s head office. The dates are: $84,858 by 31 March 2021 (though this fee is waived under regulation 5, so no payment is required), $112,921 by 1 March 2022, $107,461 by 1 March 2023, $108,015 by 1 March 2024, $105,273 by 1 March 2025, $102,531 by 1 March 2026, and $101,115 by 1 March 2027. For the Shark Bay Prawn Managed Fishery, the holder must pay the fees in regulation 11: $56,354 by 31 March 2021 (waived), $52,790 by 1 June 2021, $52,887 by 1 September 2021, and $53,000 by 1 December 2021. Note that these dates are all in 2021. For the Shark Bay Scallop Managed Fishery, the holder of a licence other than SBSC2094 must pay $110,097 by 1 March 2020, $109,521 by 1 March 2021, $52,496 by 1 March 2022, and $51,526 by 1 March 2023. The holder of licence SBSC2094 must pay $107,526 by 1 March 2020 and $106,951 by 1 March 2021. For the 2021 fees in the Shark Bay Scallop Fishery, there is no waiver (the waiver only applies to Abrolhos and Shark Bay Prawn). The practical steps: confirm the correct fishery and licence identifier; note the exact dollar amount and due date; arrange payment to the CEO at the Department’s head office (presumably the Department of Primary Industries and Regional Development, or its successor); ensure payment is received by the due date, not just posted; keep records of payment; and monitor future amendments to the regulations in case fee amounts or dates change. Because the regulations have been amended frequently, a compliance professional should verify the current version of the regulations as at the date of the payment. They should also check whether the underlying voluntary scheme notice remains in force, since the fee is for the purposes of that scheme. If the scheme has been terminated or replaced, the fee may no longer be valid. The regulations do not require the holder to submit any application or form; compliance is solely about paying the money. However, it may be prudent to accompany payment with a reference identifying the authorisation or licence number. The Department may issue invoices, but the regulations do not require that; the obligation is self assessed. For the 1 March 2021 fees that are waived, no payment is required, but if a holder had already paid, they should seek a refund from the Department as a matter of administrative practice, as the regulations do not provide one. Overall, compliance is straightforward in concept but requires careful attention to dates and amounts across multiple years and fisheries.