Fisheries Management (Charter Boat Fishery) Regulations 2016

The Fisheries Management (Charter Boat Fishery) Regulations 2016 (SA) constitute and regulate the Charter Boat Fishery under the Fisheries Management Act 2007. They replace the 2005 regulations of the same name (revoked by operation of these regulations as noted in the legislative history). The regulations do three main things mechanically. First, they define the fishery itself: it consists of facilitating recreational fishing by carrying passengers on a boat and otherwise assisting or enabling them to fish, under charter boat fishing agreements made for money or other consideration (reg 4(2) read with reg 3(1) definitions of charter boat fishing services, charter boat fishing agreement). Second, they create a licensing system limited to “eligible persons” - essentially persons who were already carrying on or establishing a charter boat fishing business on or before 28 November 2003, or certain Aboriginal and Torres Strait Islander corporations connected to an indigenous land use agreement with the State (reg 3(1) definition of eligible person). Third, they impose ongoing compliance obligations: registration of boats and masters, public liability insurance of at least $10 million, periodic returns to the Department, advance notification when a registered boat is to be used, record-keeping, and a prohibition on using recreational rock lobster pots aboard a registered charter boat. The Minister can impose conditions on licences, including limiting the number of boats, devices, or the area of waters (reg 10). The regulations also empower the Minister to make determinations specifying forms, times, and information requirements for returns and notifications, and those determinations must be published on the Department’s website and brought to the attention of persons bound (reg 15). The entirety of the regime does not apply to recreational fishing in inland waters (reg 5), meaning a separate regulatory framework covers freshwater charter operations. The core function is to limit entry to the charter boat fishery to a closed class of pre-2003 operators and indigenous corporations, while imposing substantial operational conditions that affect how existing licensees run their businesses and any potential new entrants (limited to indigenous groups). The regulations do not set catch limits or species restrictions themselves; those are presumably managed through other fisheries instruments under the parent Act.

The central concept is the Charter Boat Fishery itself, defined not by species or gear but by the activity of facilitating recreational fishing via charter boat fishing services (reg 4(2)). A charter boat is any boat used for recreational fishing under charter boat fishing agreements (reg 3(1)). A charter boat fishing agreement is an agreement made in the course of a business where a person agrees for money or other consideration to provide charter boat fishing services - meaning carrying persons as passengers and otherwise assisting or enabling them to engage in recreational fishing from the boat (reg 3(1) definitions). The definition is broad enough to cover bareboat hire if the operator provides enabling services, but the key element is the business purpose and the provision of services, not merely hiring out a vessel.

Eligible person is the crucial gatekeeping concept. It means a natural person or company that was carrying on a charter boat fishing business established on or before 28 November 2003, or in the process of being established on that date (reg 3(1) paras (a) and (b)). Alternatively, it can be an Aboriginal and Torres Strait Islander corporation that has a business plan for a charter boat fishing business and is party to an indigenous land use agreement with the State under which it is agreed that a licence will be issued to the corporation (para (c)). Also, an Aboriginal and Torres Strait Islander corporation or incorporated association established by a native title group for the purpose of implementing an indigenous land use agreement that contemplates a licence (para (d)). This means no new commercial entrants other than those indigenous entities can obtain a licence to operate a charter boat fishing business in South Australia’s marine waters. The eligible person test is a form of grandfathering mixed with a native title settlement mechanism.

Fit and proper person is another key concept. For natural person applicants, the Minister must be satisfied the applicant is a fit and proper person to hold a licence (reg 6(2)(b)). For body corporates, every member of the governing body must be a fit and proper person (reg 6(2)(c)). The regulations do not define fit and proper; it is left to Ministerial discretion, which creates uncertainty for applicants and potential for inconsistent application.

Registered boat and registered master are concepts under reg 8: a licence holder may apply to register a boat or device for use under the licence, and to register a person as a master. Registration is separate from licensing: a licence holder can hold multiple registered boats and masters. Registration can be revoked on application (reg 9). Insurance is tied to registration: the Minister may only grant registration of a boat if there is public liability insurance of at least $10 million (reg 8(2)). That insurance must also exist for transferees if a boat is registered under the licence being transferred (reg 7(3)(f)).

The regulations directly affect a narrow class of commercial operators: persons who hold or seek licences in the Charter Boat Fishery. By operation of the eligible person definition, that class is largely locked in. Anyone who was not carrying on a charter boat fishing business by 28 November 2003 cannot obtain a licence unless they are an Aboriginal or Torres Strait Islander corporation with an indigenous land use agreement. This means the regulations primarily affect existing operators who must comply with ongoing conditions; potential new entrants (other than indigenous corporations) are excluded entirely. The state effectively grants a valuable property right (the licence) to the closed class, with transferability (reg 7) allowing value to be realised on exit, but only to someone who also meets the fit and proper and insurance requirements.

The holders of licences (eligible persons) bear the direct compliance burden: they must register boats and masters (reg 8), maintain $10 million public liability insurance (regs 7(3)(f) and 8(2)), submit periodic returns (reg 13), provide notifications when a boat is used (reg 12), and keep records in good condition and accessible (reg 14). They also face the prohibition on recreational rock lobster pots aboard registered boats (reg 11). For corporate licence holders, every director (member of the governing body) must be fit and proper; if a director changes, the licence may be put at risk if the new director does not meet the test, though the regulations do not explicitly require ongoing notification of changes.

Registered masters are also affected. They can be guilty of an offence for failing to comply with the notification requirement (reg 12(2)), and the prohibition on recreational rock lobster pots applies to the registered master if the licence holder is not the master (reg 11(2)(b)). Masters need their own fit and proper assessment? The regulations do not require it for registration of a master; only the licence applicant and directors are subject to that test. But a master who engages in misconduct could still affect the licence holder indirectly.

Passengers and the public are affected indirectly: the insurance requirement gives them a potential compensation avenue if something goes wrong. The $10 million floor is relatively high, increasing operating costs for licensees. The insurance requirement may also affect availability and pricing for consumers if fewer operators can afford insurance.

The Department and fisheries officers are affected as administrators and enforcers. The Department must process applications, publish determinations, and accept notifications. The Minister retains broad discretion on licensing, transfers, and determinations, which concentrates decision-making power and creates some uncertainty for applicants.

The regulations confer several rights. A person who qualifies as an eligible person has the right to apply for a licence (reg 6(1)), though the Minister may refuse if the fit and proper test is not met. Licence holders have the right to transfer their licence, subject to Ministerial consent (reg 7(1)), which allows them to realise the capital value of the licence. They also have the right to apply for registration of boats and masters (reg 8) and to apply for revocation of that registration (reg 9). The Minister has the right to impose conditions on a licence limiting number of boats, devices, or waters (reg 10), but only “may”, so there is no duty to impose conditions.

The duties on licence holders are extensive. Under reg 13, the holder must provide periodic returns in the manner, form, and at times determined by the Minister, and must keep a record of each return for a period determined by the Minister. Under reg 12, if a registered boat is to be used, the Department must be notified of information specified by the Minister, in the manner and form and at times determined by the Minister. Non-compliance is an offence for both the registered owner and registered master (reg 12(2)). The record-keeping duty under reg 14 requires that any record required to be kept be maintained legibly, readily accessible, and produced for inspection by a fisheries officer on request, with a maximum penalty of $2,500.

The duty to maintain insurance arises indirectly: a boat can only be registered if the applicant has public liability insurance of at least $10 million (reg 8(2)). If the insurance lapses, the registration may be ineffective, and operating without a registered boat would be unauthorised. Similarly, on transfer of a licence, if a boat is registered, the transferee must have that insurance (reg 7(3)(f)). There is no express ongoing duty to maintain insurance, but the practical effect is that the boat cannot lawfully operate without current insurance because registration is a condition of use.

Regulation 11 imposes a specific prohibition: the licence holder, any agent, and if different the registered master, must not use or possess or control a recreational rock lobster pot (registered in that person’s name for non-commercial fishing) aboard a registered boat being used under the licence. This prevents mixing recreational and commercial gear, likely to avoid black market sales from recreational pots. The penalty is $10,000 with an expiation fee of $500.

The Minister has duties under reg 15: determinations for the purposes of regulations must be published on the Department’s website and written notice given to persons bound as soon as practicable. However, the Minister has broad discretion over the content and the manner of notice; the regulation does not require individual service or confirmation of receipt, only that the Minister forms an opinion that the manner will bring the determination to attention.

The regulations create four separate offences, each with a prescribed maximum penalty and an expiation fee (a fixed penalty that avoids court). The most serious offence is under reg 11(1): using or possessing or controlling a recreational rock lobster pot aboard a registered charter boat carries a maximum penalty of $10,000 and an expiation fee of $500. This is a relatively high penalty, reflecting the risk of illegal catch being landed under the cover of a charter operation.

Regulation 12(2) makes it an offence for the registered owner and registered master if the required notification (when a registered boat is used or to be used) is not provided. Maximum penalty: $5,000; expiation: $500. The offence is one of strict liability based on the wording, but no express defence is provided. The notification requirement depends on a Ministerial determination, so the obligation is not fully defined in the regulations themselves.

Regulation 13 provides two separate offences. Subregulation (1): failure by the licence holder to provide returns in the manner, form, and times determined by the Minister. Maximum penalty $5,000, expiation $500. Subregulation (2): failure to keep a record of each return for the period determined by the Minister. Same penalty and expiation. This means a licence holder could face two penalties for the same underlying conduct (failing to file and failing to keep a record of not filing, though in practice if no return is made there is no record to keep). There is no harmonisation.

Regulation 14 creates an offence for any person required to keep a record under the regulations: failing to maintain it in good condition and legible, failing to keep it readily accessible, or failing to produce it for inspection by a fisheries officer on request. Maximum penalty $2,500, expiation $210. This is a lower penalty than the others, consistent with it being a record-keeping administrative breach rather than an operational or integrity breach.

Enforcement is through the parent Fisheries Management Act 2007, which contains general investigation powers for fisheries officers. Regulation 14(c) expressly requires production of records on request, which means a fisheries officer can inspect records without a warrant if the person is required to keep them. There is no provision for suspension or cancellation of a licence as a direct penalty under these regulations, but the parent Act likely provides for such powers, and the regulations do not exclude them.

Expiation fees allow the Department to issue infringement notices, avoiding court for minor breaches. The expiation amounts are modest relative to maximum penalties, giving an incentive to pay expiation rather than contest, but accumulating expiations could signal a pattern leading to licence review. The regulations do not specify any demerit points or progressive enforcement mechanisms.

These regulations are subordinate legislation under the Fisheries Management Act 2007 (SA), which is the parent Act. The Act provides the general framework for fisheries management, including definitions, principles, and general offence provisions. The regulations create the specific fishery and its rules. Any inconsistency would be resolved by the Act prevailing. Readers would need the Act to understand appeal rights, licence suspension or cancellation powers, general offence penalties, and the Minister’s broader powers to declare fisheries and set fees.

The regulations cross-reference several Commonwealth and state statutes. The definition of company, director, proprietary company, and public company are imported from the Corporations Act 2001 (Cth) (reg 3(2)(a)). The fit and proper person assessment for directors may involve criminal history checks; relevant disqualifications under the Corporations Act (e.g., for being an undischarged bankrupt or convicted of certain offences) would likely be relevant, though not directly referenced. The requirement for a current company extract on transfer (reg 7(2)(c)) ties into the ASIC database.

The definition of Aboriginal and Torres Strait Islander corporation comes from the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth). The indigenous land use agreement concept comes from the Native Title Act 1993 (Cth) Part 2 Division 3. This means any corporation seeking a licence under the indigenous pathway must comply with those Commonwealth regimes first. The regulations also reference the Associations Incorporation Act 1985 (SA) for incorporated associations that may qualify as eligible persons under reg 3(1)(d). This creates multiple compliance layers for those entities.

The insurance requirement of $10 million public liability insurance interacts with the Insurance Contracts Act 1984 (Cth) and state insurance law. The policy must cover death, bodily injury, and property damage arising from use of the boat under the licence. There is no requirement for the insurance to be with an Australian authorised insurer, but in practice it would need to be to comply.

The inland waters exclusion at reg 5 means that charter boat fishing in rivers, lakes, and reservoirs within South Australia is not regulated by these regulations; separate regulations (likely the general Fisheries Management (General) Regulations or similar) would apply. Operators who hold a marine charter licence cannot assume it covers inland operations.

The parent Act likely contains provisions on general offences such as obstruction of fisheries officers, and on licensing fees, which are not replicated in these regulations. The regulations are silent on fees; presumably they are set by separate instrument under the Act. Any conflict between a Ministerial determination (reg 15) and the regulations themselves is unlikely because the determination must be for the purposes of a specific regulation, but there is a risk of ultra vires if the Minister attempts to impose an obligation not authorised by the regulation. The regulations do not provide a mechanism to challenge a determination.

The original regulations were made on 6 October 2016 (Gazette 2016 No 233) and commenced on 6 February 2017. They revoked the earlier Fisheries Management (Charter Boat Fishery) Regulations 2005. The original version included a regulation 2 (commencement) and a Schedule 1 (revocations). Both were later removed under the Legislation Revision and Publication Act 2002, effectively as editorial clean-up.

The only substantive amendment was by the Fisheries Management (Charter Boat Fishery) Variation Regulations 2017 (No 222 of 2017, Gazette 8 August 2017, commenced 15 January 2018). That variation inserted the definition of “Department” into regulation 3(1), which had been missing from the original. It also varied regulation 9(2) - relating to application for revocation of registration - to replace the previous wording requiring that the application be “in a manner and form approved by the Minister and be completed in accordance with the instructions contained in the form” (though the current text appears to be the same; the variation likely made minor textual adjustments). More significantly, the 2017 variation substituted new regulations 12 and 13, and inserted new regulations 14 and 15. The original regulations apparently either lacked explicit provisions on notifications, periodic returns, record-keeping, and Minister’s determinations, or had them in different form. The current regs 12 and 13 impose notification and return duties that depend on Ministerial determinations; the original may have had more prescriptive detail. The insertion of regs 14 and 15 added record-keeping standards and the Minister’s determination-making power. The omission of Schedule 1 at the same time was a consequential deletion.

Thus the operative version of the regulations today is largely shaped by the 2017 amendments. The shift from prescriptive requirements to determination-based requirements (return forms and notification being “as determined by the Minister”) gives the Minister significant flexibility but also reduces ex ante certainty for licensees. The amendments also explicitly provided for record accessibility and inspection rights. No further amendments have been made since 2018. The legislative history notes that the regulations are not subject to sunsetting? The parent Act may require periodic review, but these regulations have not been remade since 2017. They remain in force as at the date of the source.

Neither the regulations text nor the accompanying legislative history mentions any court cases. The regulations are subordinate legislation and not themselves the subject of litigation reports in the source material. Searching judicial decisions would be speculative. However, one can anticipate potential litigation pathways. The fit and proper person test is inherently discretionary and could be challenged if the Minister refuses a licence or transfer on grounds that appear unreasonable or procedurally unfair. Judicial review under the Administrative Decisions (Judicial Review) Act 1977 (SA) or the common law might be available, but no case is cited.

Similarly, the eligible person definition creates a closed class; a person who was operating a charter boat fishing business after 28 November 2003 but who was not in the process of establishment on that date could argue that the grandfathering date is arbitrary and that the regulation is invalid as an unreasonable restraint on trade. However, fisheries regulations have been upheld in Australian courts as consistent with the public interest in resource management. The source does not provide any such case.

The prohibition on recreational rock lobster pots (reg 11) could generate litigation if a charter operator disputes possession or control, or if a recreational fisher aboard a charter boat argues that the pot is not being “used” within the meaning of the regulation. No cases are mentioned.

The Minister’s determination under reg 15 could be challenged on grounds that it was not properly published or brought to the attention of persons bound, though the discretion is broad.

Because the source contains no litigation history, this section must be grounded in the source. The only honest statement is that no litigation history is provided in the regulation text or its legislative history. The answer should reflect that. The regulation itself is stable and has not generated notable case law that the drafter saw fit to include. It is prudent to say that no cases are cited in the instrument and that the subordinate legislation is not a frequent source of dispute, at least not at the level producing published decisions referenced in the regulations.

Several traps await the unwary. First, the eligible person definition is a strict cutoff. Anyone who started a charter business after 28 November 2003 is ineligible, regardless of how long they have been operating. The term “in the process of being established” (reg 3(1)(b)) is not defined; it could lead to disputes if the Minister takes a narrow view. There is no provision for hardship or exceptional circumstances.

Second, the fit and proper person test applies to every member of the governing body of a body corporate licence holder (reg 6(2)(c)). A change in directors after the licence is granted is not covered; the regulation only requires satisfaction “before granting a licence”. But the parent Act may allow suspension or cancellation if a director ceases to be fit and proper, and the regulations do not provide a safe harbour. Corporate licence holders should ensure ongoing compliance by their board.

Third, the insurance requirement is tied to registration, not to the licence. If a boat is registered and the insurance lapses, the registration may be automatically invalid, but the regulation does not say so explicitly. It says the Minister may only grant registration if satisfied of insurance. There is no requirement to notify the Minister of lapse, and operating an unregistered boat would breach the licence conditions (impliedly, because the licence only allows use of registered boats). This creates a gap; a licence holder could unintentionally operate uninsured.

Fourth, the notification requirement under reg 12 is triggered “if a registered boat is, or is to be, used” under the licence. This could be interpreted as requiring notification before each fishing trip, or at periodic intervals as determined by the Minister. The determination may require advance notice of each trip, which is operationally burdensome. The penalty applies to both registered owner and registered master, so each has independent liability.

Fifth, the periodic returns under reg 13 must be kept for a period determined by the Minister. The regulations do not impose a minimum, so the Minister could require records to be kept indefinitely, imposing storage burdens. The record must be “readily accessible” (reg 14(b)), which could mean on request at short notice, including out of business hours if fisheries officers demand (no time limit is specified).

Sixth, reg 11 prohibits use or possession of a recreational rock lobster pot. The pot must be registered in that person’s name for non-commercial fishing. A charter master who also holds a recreational rock lobster permit cannot lawfully bring that pot aboard the charter boat, even when the boat is not actively engaged in charter fishing. The penalty is $10,000, the highest under these regulations.

A person seeking to operate a charter boat fishing business in South Australian marine waters must follow a multi-step compliance pathway. First, verify eligibility. If the business was not established on or before 28 November 2003, the only other route is through an indigenous land use agreement. A natural person applicant should be prepared to demonstrate that the business was in existence or in the process of being established at that date - documentary evidence such as invoices, advertising, or licences will be critical.

Second, apply for a licence under reg 6. The application must satisfy the Minister that the applicant is an eligible person and, if a natural person, is a fit and proper person. For a body corporate, every director must be fit and proper. Fit and proper is undefined, but a criminal history check, absence of bankruptcy, and good standing in other regulatory regimes are wise to have ready.

Third, once the licence is granted, register each boat that will be used. Each boat must have a policy of public liability insurance with a minimum cover of $10 million per occurrence for death, bodily injury, and property damage. The certificate of insurance should show the boat as an insured vessel. The application for registration must include the documents specified on the application form (reg 8(1)), which the Department will provide.

Fourth, register a person as master for each boat that will be used. The master does not need to be fit and proper? The regulations do not require it for master registration, but the licence holder should still ensure the master is competent and does not jeopardise the licence.

Fifth, comply with Ministerial determinations. These are not set out in the regulations; they must be obtained from the Department’s website. Check regularly, as determinations can change. The determination will specify the manner, form, timings, and information required for periodic returns (reg 13) and for notification when a boat is to be used (reg 12). It is essential to maintain a system for submitting returns on time and for notifying the Department of each intended use as required. Keep a copy of each notification and return.

Sixth, keep all records required by the regulations in good condition, legible, and readily accessible. If a determination requires records to be kept for a certain period, mark that calendar reminder. Be prepared to produce records to a fisheries officer on request, at any time.

Seventh, strictly prohibit any recreational rock lobster pot (registered in the name of the licence holder, registered master, or agent) from being aboard a registered boat. This includes pots stored on deck or in lockers. Train all crew and ensure no such gear is brought on board.