Fisheries Management (Abalone Share Management Plan) Regulation 2000

The primary regulated class is the shareholder—any person or entity holding shares in the abalone fishery. Only shareholders may take abalone for sale or nominate another to do so (Act ss 66–67; cl 5 note). A shareholder must hold at least 70 shares; holdings above 210 shares are prohibited (cll 5–6).

Endorsement holders are commercial fishers whose licences carry an endorsement authorising abalone taking. They may be the shareholder themselves or a nominated fisher chosen by the shareholder. Nominated fishers are subject to a five-year conviction-free window for abalone or serious fisheries offences (cl 10(1)). The Minister may refuse or cancel endorsements on conviction grounds, breach of the Plan, or change of nomination (cll 11–12).

Abalone processors are indirectly regulated: they may receive abalone only from endorsement holders or their transporters (definition in cl 2(1)), and the Plan’s documentation rules (cl 31) ensure that only catch accompanied by proper dockets reaches them. Processors are also the endpoint for the “relevant documentation” that must remain attached until delivery.

Crew appear in the record-keeping obligation: endorsement holders must list all crew on the daily log sheet (cl 23). However, crew members themselves are not directly liable for Plan breaches unless they are also the endorsement holder.

The Secretary and the Minister hold extensive discretionary powers: approval of forms, instruments and places (definitions, cll 24, 30, 37), suspension of endorsements at the holder’s request (cl 12(3)), calculation and notification of community contributions (cl 34B(5)), and decisions on operational plans (cl 4).

The TAF Committee is statutorily required to set the TAC each fishing period (cl 35A), although the Minister may issue directions under Act s 40K.

Fisheries officers are the enforcement arm; they may approve inter-boat transfers (cl 29) and receive docket books (cl 28(5)(a)).

Finally, any person with an interest in forfeited shares may receive a discretionary share of sale proceeds after expenses (cl 35(5)).

The Plan therefore creates a closed class of approximately 42 endorsed fishers (cl 3 Table item 8) operating within a share market whose liquidity and value are themselves performance indicators.

Shareholders’ duties include paying the management charge (cl 36) and community contribution (cl 34B), ensuring nominated fishers receive docket books (cl 28(1)), notifying the Secretary of lost or damaged docket books within one business day if informed by a nominated fisher (cl 28(7)), and returning docket books on endorsement cancellation (cl 28(9)). They must not nominate ineligible fishers (cl 10) and are vicariously exposed to forfeiture if their nominated fisher commits repeat offences (cl 35(3)).

Endorsement holders’ duties dominate the Plan. They must:

• Carry and use measuring devices, scales and a 10 kg test weight (cll 24–25).
• Record crew, complete daily log sheets and nil returns (cll 23, 32, 31(4A)).
• Display correct boat markings (cl 26).
• Refrain from recreational taking while commercial gear or breathing apparatus is aboard (cl 27).
• Make real-time catch reports before moving 50 m, leaving NSW or within 30 minutes (cl 30A(2)), remain with the catch (cl 30A(3)), weigh and document within 30 minutes (cl 31(1)), keep documentation attached until delivery to an approved processor (cl 31(2)).
• Not shuck except at approved places (cl 37).
• Notify of charges within 24 hours (cl 13).

Rights are largely negative: the right to take abalone only if the minimum shareholding is held, an endorsement is current and all conditions are met. Shareholders have a right to nominate (subject to cl 10) and to trade shares (subject to the transfer definition in cl 2(2)). The Plan confers no positive right to a particular TAC; that is set annually by the TAF Committee.

Performance indicators give stakeholders a right to expect that management charges will not rise faster than CPI (cl 3 Table item 3), that compliance will exceed 70% (item 7), and that share and quota markets will remain liquid (item 5). Triggers for review entitle advisory councils to be consulted when biomass drops or other thresholds are breached.

The Plan creates two tiers of offence. “Endorsement holder offences” are breaches designated as such throughout the text (cll 13(3), 23(3), 24(2), 25(4), 26(4), 27(2), 28(10), 29(2), 31(5), 32(4), 34(2)). The catch-all provision (cl 38) imposes a maximum penalty of 100 penalty units. Because an endorsement holder offence can also trigger suspension or cancellation (cl 12(1)(b)), the practical sanction is often loss of livelihood.

“Share forfeiture offences” (cl 35) are more serious. They include repeat quota breaches (Act s 40S), repeat cl 31 documentation breaches, serious fisheries offences under the General Regulation, and any offence punishable by imprisonment. After two prior proved contraventions, a further offence can lead to forfeiture of all shares under Act s 75. Forfeited shares are sold by public tender; innocent interest holders may receive a discretionary share of proceeds (cl 35(5)). Failure to pay community contributions or management charges can also trigger forfeiture via the General Regulation (cl 103).

Enforcement is supported by strict liability elements in many clauses (e.g. “must not take… unless…”). Real-time reporting obligations are conditions of endorsement (cl 30A(3), cl 30), so breach can lead to administrative cancellation as well as criminal penalty. Interest runs on late payments at Supreme Court judgment rates (cll 34B(6), 36(2)). Instalment arrangements are possible but accelerate on default (cl 34B(8)).

The Minister may suspend endorsements for requested periods of at least four weeks (cl 12(3)), providing a flexible administrative tool.

The Plan is made under the Fisheries Management Act 1994 and is expressly subordinate to it. Clause 39 states that it does not affect any restriction imposed by the Act or the Fisheries Management (General) Regulation 2019, specifically preserving size limits (currently 11.7 cm—General Regulation cl 6), fishing closures under Act s 8, and the quota offence in Act s 40S.

It cross-references the Fisheries Management (Supporting Plan) Regulation 2006 and adopts its Part 2A (likely dealing with quota), Part 3 (nomination and transfer rules), and cll 21–22 (cl 39A). Serious fisheries offences incorporate Act ss 121 (false information), 124 (obstruction), 247 (general offences) and General Regulation cl 75 (gear theft).

The community contribution is levied under Act s 77; the management charge under s 76. Real-time reporting is authorised by Act s 124A. Share forfeiture flows from Act s 75 and s 75B. Endorsement conditions are imposed under Act s 68(6A).

Interaction with Commonwealth law occurs at two points: shucking is permitted at premises registered under the Export Control Act 1982 (Cth) (cl 37(b)), and any GST impact on the management charge is expressly noted (cl 36 note).

The Interpretation Act 1987 applies to undefined terms (cl 2(1) note). The Plan’s objectives must be considered when the Minister exercises functions under the Act (Act s 57).

The amendment history is lengthy. Major post-2000 changes include:

• 2005–2010 amendments inserted the entire Part 6A community contribution regime (cll 34A–34F) to capture economic rent as beach prices rose.
• 2010–2011 amendments introduced real-time reporting (cll 30A–30B) to improve catch accounting and reduce illegal landings.
• 2014–2018 amendments refined TAC adjustment formulas, added the Ex-HMAS Adelaide closure to Sch 1, and updated cross-references after the General Regulation was remade in 2019.
• 2021 and 2023 amendments (2021 (482), 2023 (13)) made further tweaks to TAC and reporting mechanics.

These changes reflect a policy shift from simple share allocation to dynamic, data-driven management. Rising abalone prices triggered the community contribution to return value to the public. High-value, low-volume product made real-time monitoring cost-effective. Biomass concerns and compliance rates below the 70% trigger (cl 3 Table item 7) drove tighter operational rules. The progressive incorporation of Supporting Plan provisions (cl 39A) streamlines the legislative suite.

The source text contains no reported cases, but the structure reveals likely flashpoints. Share forfeiture (cl 35) has been controversial in other share fisheries because it can extinguish valuable assets (often traded at six-figure sums) for relatively minor repeat offences. The “record of contravening” test (two prior proved breaches, counting nominated-fisher conduct—cl 35(3)) raises natural justice issues if the shareholder had no knowledge (the defence in cl 35(2) applies only to the nominated fisher’s conviction, not the shareholder’s forfeiture).

The complex adjusted beach price calculation (cll 34C–34F) with its rounding rules, base-period recalculations and anti-snowballing notes has produced disputes over the Minister’s determination of average beach price and TAC percentages. Because the contribution is payable even if the shareholder caught no fish (it is proportional to shares held on the last day of the period), smaller shareholders have argued it operates as an unfair tax.

Real-time reporting timing rules (cl 30A(2))—especially the “whichever occurs first” test—have led to arguments about when a fisher “comes ashore” in remote locations or during bad weather. The requirement to remain with the catch (cl 30A(3)) creates safety concerns when weather deteriorates.

The closed waters in Sch 1, particularly Port Jackson, have been contentious with recreational divers who argue the commercial closure exceeds the Plan’s environmental objectives.

No judicial review cases are recited in the text, but the breadth of Ministerial discretion in cl 12 (suspension/cancellation) and the TAF Committee’s TAC setting (subject only to Act s 40K directions) would be amenable to Wednesbury unreasonableness or failure-to-consider-relevant-considerations arguments, especially when review triggers in cl 3 Table are met but no action is taken.

Most practitioners miss that the community contribution is calculated on shares held on the last day of the fishing period, not on catch actually taken by that shareholder. A shareholder who sells shares mid-year can still be slugged for the full period’s contribution on the shares held at 30 June.

The flow-through TAC adjustment (cl 34E) can apply for three or more years after a large TAC change; the “relevant adjustment in the previous fishing period” is not the net adjustment if cl 34F aggregation occurred, but the isolated immediate or flow-through component (cl 34E(6)). Misreading this produces incorrect invoices.

Clause 28(10) makes failure to keep a docket book in a “safe place” an endorsement holder offence. There is no de minimis or reasonable-excuse defence. Likewise, using the 10 kg weight before weighing (cl 25(3)) is absolute; post-weighing calibration is useless.

The 50-metre rule appears in three places (cll 30A(2)(a), 31(2)(a), 31(4)) with slightly different triggers. Moving the catch to a vehicle 60 m away before completing the real-time report and attaching the envelope can generate three separate offences from one act.

Nominated fishers’ convictions count against the shareholder for forfeiture purposes even if the shareholder had no knowledge, unless the court that convicts the fisher expressly finds the offence was without the shareholder’s knowledge or permission (cl 35(2)). The onus is therefore on the shareholder to ensure the court makes that finding at the nominated fisher’s sentencing.

The Plan adopts future amendments to the Supporting Plan (cl 39A “as in force from time to time”). A change to the Supporting Plan automatically amends this Plan without further gazettal, creating a hidden moving target.

Finally, the definition of “abalone offence” includes any offence “relating to the taking or sale of abalone” under the Act or regulations. A minor size breach on a single abalone can therefore trigger the five-year bar on nomination or endorsement (cll 10–11) and feed into the “record of contravening” for forfeiture.

Compliance begins with share register hygiene: maintain at least 70 and no more than 210 shares at all times. Conduct due diligence on any nominated fisher’s conviction history for the preceding five years and ensure no charges are pending (cl 10(1)).

Implement a docket-book protocol: issue only to current nominated fishers, obtain signed receipts, store originals in a locked cabinet, and have a standing instruction to notify the Secretary (or the shareholder) within 24 hours of loss or damage. On any suspension or cancellation, return the entire book immediately.

For each fishing trip, the endorsement holder must:

1. Pre-test scales with the 10 kg weight and record the result.
2. Carry an approved measuring gauge.
3. Complete crew details on the daily log sheet before departure.
4. On landing, remain within 50 m, make the real-time report via the DPI system (or approved backup), weigh within 30 minutes using the tested scales, pack in approved containers, complete and attach the waterproofed docket, and only then move the catch.
5. Fax or electronically send the daily log sheet copy within 24 hours.
6. For months with no activity, lodge a nil report on the last day of the month.

If hanging abalone, ensure bins are sealed, identified, and the additional real-time data (number, weight, GPS) is reported within one hour if the system is down.

Calculate and budget for the community contribution using the Minister’s published average beach price, CPI multiplier and TAC change. Pay within two months or arrange approved instalments. Late payment interest compounds at Supreme Court rates.

Maintain a compliance register recording every endorsement, nomination, report lodgement and payment. Annual independent review of management arrangements (cl 3 Table item 4) should be anticipated; retain records sufficient to demonstrate biomass, catch-rate and compliance data.

Engage early with the TAF Committee’s TAC consultation process and monitor the eight cl 3 triggers. If any review trigger is met, prepare submissions to the Minister and relevant advisory council.

Processors should refuse any delivery lacking an attached, completed docket and should keep delivery records to prove chain of custody.

In practice, the most robust compliance system integrates the real-time app with automated diary reminders for nil returns, docket-book serial-number tracking, and quarterly reconciliation of shares held against the fishery register. Annual training for all nominated fishers on the 50-metre, documentation and shucking rules is essential. Legal sign-off on any share trade or nomination change should be routine given the severe forfeiture consequences of repeat breaches.