Fisheries Management (Miscellaneous Exploratory and Developmental Fishery) Regulations 2025

The central concept is the fishery itself. The Miscellaneous Exploratory and Developmental Fishery consists of the taking of aquatic resources in the waters of the State, but does not include any fishing activity that would be constituted as a fishery under the prescribed fishery regulations. This means that anyone who takes aquatic resources in South Australian waters without falling within one of the ten named commercial fisheries must hold a permit under these regulations, unless the parent Act provides another exemption (such as recreational fishing without a permit, but that is not dealt with here). The term “taking of aquatic resources” is defined broadly to include acts preparatory to or involved in the taking, so net-setting, baiting, or deploying gear can be regulated even before a single animal is captured.

The two permit classes are exploratory and developmental. The regulations do not define these terms further. The distinction is important because exploratory permits are not transferable, whereas developmental permits can be transferred with Ministerial consent. The Minister’s decision to grant one class over the other is not subject to published criteria beyond the fit and proper person test. This creates a threshold issue: a permit holder who receives an exploratory permit rather than a developmental permit is locked out of the secondary market for permits and may face greater difficulty raising finance or selling the enterprise. The term “fit and proper person” is not defined in the regulations. It is likely imported from the parent Act or administrative law, but its absence creates uncertainty. For companies, each director must be fit and proper. The regulations do not specify what matters the Minister may consider: criminal record, financial probity, compliance history with fisheries laws, or even unrelated matters. This expands state discretion and increases the risk of arbitrary or inconsistent decision-making.

Registration is the process of approving a boat, device, or person as a master for use under a permit. The application must be accompanied by the documents specified in the application form. The regulations do not list those documents; they are determined by the Minister in the form itself. This means the compliance burden is unknowable at the time of reading the regulation. The holder must obtain the form from the Department to learn what documents are required. Revocation of registration can be made on application by the permit holder. There is no provision for the Minister to revoke registration on his own motion, though the parent Act may allow that.

Periodic returns are required as determined by the Minister. The holder must provide returns in the manner and form, at times, and containing such information as the Minister determines. The holder must also keep a record of each return for such period as the Minister determines. The determination may be made by the Minister under regulation 12, which allows general or limited application. A return obligation could be imposed retroactively or with extremely short notice. The maximum penalty for non-compliance is $5,000, and expiation is $500. The record-keeping obligation under regulation 11 requires the record to be maintained in good condition, legible, readily accessible, and produced for inspection by a fisheries officer on request. Failure attracts a $2,500 maximum penalty and $210 expiation fee. These are strict liability offences with no mental element, creating a trap for permit holders who may lose or damage records through no fault of their own.

Ministerial determinations under regulation 12 are a broad delegated rule-making power. A determination can be of general or limited application and can make different provision according to persons, things, or circumstances. There is no requirement for consultation, cost-benefit analysis, or parliamentary scrutiny. The only transparency requirement is publication on the Department’s website and notice to persons bound in a manner that the Minister believes will bring it to their attention. A permit holder who fails to notice a determination published only on a website may be unknowingly in breach. The Minister can vary or revoke a determination by further determination. This creates a constantly shifting regulatory environment with no stability for business planning.

The primary group affected is any person or company that takes aquatic resources in South Australian waters for commercial purposes outside the ten prescribed fisheries. This includes fisherers targeting species not covered by those fisheries, such as certain finfish, molluscs, crustaceans, or other marine life not subject to a specific management plan. It also includes operators engaged in exploratory fishing (testing new grounds, species, or gear types) and those developing new fisheries from an experimental stage into commercial production. In practice, this is a small cohort relative to the large commercial fisheries, but it includes entrepreneurs, innovators, and small-scale operators who may be the first to find new stocks or develop new products.

The regulations also affect companies that hold or seek permits. The fit and proper person test extends to each director. A director with any prior regulatory breach or criminal record (even unrelated) may disqualify the company from holding a permit. This increases the compliance burden for corporate applicants, who must ensure that all directors are of unblemished character. The requirement for a current company extract from ASIC issued not more than one month before application adds a transaction cost and a timing constraint. If an application is delayed, a new extract may be required.

The fisheries officers and the Department are affected as the enforcers and administrators of the scheme. The Minister is the central decision-maker, with broad discretionary powers to grant or refuse permits, impose conditions, make determinations, and approve transfers. The regulations do not provide for merits review of the Minister’s decisions. A refused applicant or a permit holder facing onerous conditions may have judicial review only on administrative law grounds, which is costly and uncertain. This tilts the balance heavily toward state discretion.

The repeal of the 2013 regulations and transition of existing permits means current holders are automatically affected but may not appreciate that their permit status (developmental or exploratory) is now subject to reclassification. A permit that was simply a “miscellaneous developmental” permit is now deemed a permit under the new regulations, but the regulations do not say whether it becomes an exploratory or developmental permit. That appears to be a matter for the Minister. Affected permit holders should seek clarity on their new classification, because an exploratory permit is non-transferable, which could severely affect business value.

Finally, the regulations affect the broader public interest. The fishery as a residual category is where new commercial fishing opportunities first arise. The regulatory burden on pioneers may discourage exploration and innovation, leading to under-exploitation of sustainable resources or forcing new entrants into illegal fishing. The lack of clear criteria and high transaction costs (application forms, ASIC extracts, fit and proper person assessments) raise barriers to entry. The cost of compliance falls disproportionately on small operators with limited administrative support. The concentration of discretion in the Minister without clear standards increases the risk of rent-seeking and arbitrary outcomes.

The central duty under the regulations is the obligation to provide periodic returns. Regulation 10 requires the holder of a permit to give the Department returns in the manner and form, at such times, and containing such information as the Minister determines. This is not a fixed obligation; the Minister may change the requirements by determination at any time. The permit holder must also keep a record of each return for a period determined by the Minister. The record must be maintained in good condition and legible, kept readily accessible, and produced for inspection by a fisheries officer on request (regulation 11). This means the permit holder must maintain physical or digital storage that can be immediately accessed during an inspection, even at sea or at a remote location.

Another duty is to ensure applications for registration of a boat, device, or master are accompanied by the documents specified in the application form. The permit holder must not use an unregistered boat, device, or master if the permit requires registration. The regulations do not state that explicitly, but it is implicit from the scheme. Similarly, the holder must comply with any conditions imposed on the permit by the Minister under regulation 6, including limits on the class of fishing activities that may be engaged in. Engaging in an activity outside those limits while holding a permit would be a breach.

Rights under the regulations are limited. A person has the right to apply for a permit. For an exploratory permit, the applicant must be an individual of at least 15 years and a fit and proper person. For a developmental permit, an individual must also be at least 15 and fit and proper; a company must have all directors fit and proper. There is no right to a permit; the Minister has discretion to issue or not issue. There is no appeal mechanism provided in the regulations. A permit holder has the right to apply to register a boat, device, or master for use under the permit, and the right to apply for revocation of registration. Registration and revocation are at the Minister’s discretion.

The holder of a developmental permit has the right to apply for consent to transfer the permit. The application must be accompanied by the permit, a return form up to date, and, if the transferee is a company, a current company extract. The Minister may only consent if satisfied that fees are paid, the permit is not suspended, no proceedings are pending or likely, and the transferee or their directors are fit and proper. This is a limited right because the transferee must satisfy the fit and proper test at the time of transfer. Exploratory permit holders have no transfer right at all. That significantly restricts the marketability of an exploratory permit and may trap a holder who wishes to exit the fishery.

The Minister has the right to impose conditions on permits, to make determinations on any matter for the purposes of a regulation, and to vary or revoke determinations. The Minister also has the right to publish determinations on the Department’s website and to give notice to persons bound in any manner the Minister believes will bring the determination to their attention. This is not so much a duty as a power, but the requirement to give notice is a duty, albeit one with very low specificity.

Permit holders also have the right to be given notice of a determination that binds them, and the right to view the determination on the website. They do not have a right to be consulted before the determination is made, nor a right to have the determination revoked or varied if it proves unworkable.

The regulations create two specific offences. The first is failing to provide a return as required by regulation 10(1). The maximum penalty is $5,000, with an expiation fee of $500. This is a strict liability offence under the parent Act, meaning the prosecutor does not need to prove intent or knowledge. The second is failing to keep a record of each return as required by regulation 10(2). Again, maximum penalty $5,000, expiation $500. The separate offence under regulation 11 for failure to maintain the record in good condition, legible, readily accessible, or for failure to produce to a fisheries officer on request carries a maximum penalty of $2,500 with an expiation fee of $210.

These penalties may seem modest for a commercial operator, but they accumulate quickly. A permit holder who fails to provide a single return on time is liable for $5,000 quasi-criminal penalty. If they also fail to keep the record separately, they face another $5,000. If a fisheries officer requests the record and it is not produced immediately, that is a further offence. The expiation fees of $500 and $210 respectively are lower but are still a material cost for a small operator.

Enforcement is carried out by fisheries officers, who are given powers of inspection under the parent Act. The regulations do not create any additional enforcement mechanisms. The requirement to produce a record on request gives officers a broad power to demand documentation on the spot. Failure to produce is an offence even if the record exists but is not immediately accessible (for example, if it is stored at a home office and the officer inspects the boat at sea). The obligation to keep records “readily accessible” is ambiguous: accessible to whom? In what timeframe? The officer’s expectation could be that the records are on the boat or in the permit holder’s possession at all times.

The regulations do not provide for any defence of due diligence or reasonable steps. The strict liability nature of the offences places the entire burden on the permit holder to ensure compliance regardless of circumstances. A permit holder who is ill, away, or experiencing a technical failure may still be liable.

Importantly, the regulations do not create any further offences for fishing without a permit or breaching permit conditions. Those would be found in the parent Act or in other regulations. The penalty provisions here are specific to returns and records. However, non-compliance with a permit condition (such as limiting fishing activities under regulation 6) would likely be enforced under the Act’s general provisions, which carry higher penalties. The expiation fees here offer a pathway to settle minor procedural breaches without court proceedings, but the $500 fee for a return failure is still a significant deterrent given the low marginal value of many exploratory or developmental fishing activities.

These regulations are made under the Fisheries Management Act 2007 (SA). That Act is the primary source of power for the regulations and contains the general offence provisions, powers of fisheries officers, administrative appeal mechanisms, and management principles. The regulations operate within the framework of the Act: for example, the Act defines terms such as “aquatic resources”, “fishery”, and “waters of the State”. The Act also sets out the effect of declaring a fishery a developmental fishery, which triggers specific provisions relating to permits, registration, and management. The regulations do not restate those provisions; they assume knowledge of the Act. Any serious compliance analysis must read the regulations alongside the Act.

The regulations also interact with the ten prescribed fishery regulations listed in the definition of “prescribed fishery regulations”. These are separate regulations for abalone, blue crab, charter boat, Lakes and Coorong, marine scalefish, prawn, river, rock lobster, sardine, and vongole fisheries. If an activity falls within any of those fisheries, it is excluded from the miscellaneous exploratory and developmental fishery. The boundary between fisheries is not always clear. For example, if a fisher takes both sardine and some other species, they may straddle two fisheries. The regulations do not provide a test for mixed catch or incidental take. As a practical matter, a permit under the miscellaneous fishery may only cover activity that is not already covered by a prescribed fishery permit. A fisher who holds a sardine fishery permit but also takes a novel species not in that fishery would need a separate permit under these regulations for the novel species, unless the sardine permit explicitly authorises taking of other species (which it likely does not).

The regulations reference the Corporations Act 2001 (Cth) for definitions of company, director, proprietary company, public company, and for the ASIC current company extract. This creates a cross-jurisdictional compliance link. The fit and proper person test for directors may also draw on conduct under Commonwealth law, such as the Corporations Act’s director disqualification provisions. A person disqualified from managing a corporation under the Corporations Act would almost certainly fail the fit and proper person test.

The regulations do not specify any interaction with native title rights, environmental laws, or planning laws. The parent Act likely contains provisions for native title fishing rights, but these regulations do not address them. Similarly, the regulations do not mention the Environment Protection and Biodiversity Conservation Act 1999 (Cth) or any export controls. A developmental fishery might need to be assessed under federal environmental legislation before product can be exported, but these regulations do not reference that.

Recreational fishing is not dealt with here. The regulations only apply to the taking of aquatic resources that is not a class constituted as a fishery by prescribed fishery regulations. Recreational fishing may be exempt under the Act or regulated separately. The regulations do not affect recreational fishers directly, but they may affect recreational fishing indirectly if a commercial miscellaneous fishery targets the same stock.

These regulations are the first iteration of the 2025 instrument. They repeal and replace the Fisheries Management (Miscellaneous Developmental Fishery) Regulations 2013. There is no amendment history within this instrument itself. The legislative history note says the regulations were made on 21 August 2025 (Gazette p3480) and commence 1 September 2025. The 2013 regulations have now been repealed in full. There is a transitional provision that deems existing permits under the old regulations to be permits under the new regulations. The 2013 regulations had been in force for about 12 years. Presumably, they had been subject to minor amendments over that period, but that history is not provided in the source.

The introduction of the two-class permit structure (exploratory and developmental) is the main substantive change. The 2013 regulations did not distinguish classes. They simply allowed the Minister to issue permits. The 2025 regulations also add explicit provisions for registration of boats, devices, and masters, and for revocation of registration by application. The old regulations may have had similar provisions; they are not available for comparison. The new regulations also set maximum penalties and expiation fees directly in the regulations, whereas the old regulations may have left penalties to the Act or to separate regulations.

There is no legislative amendment history for the 2025 regulations yet because they are brand new. Any future amendments will appear in subsequent Gazettes. Practitioners should monitor the South Australian legislation website for amendments, which may be made by regulation amendment without a new principal instrument.

The source text contains no litigation history. The regulations are newly made (commencing 1 September 2025) and have not yet been the subject of any court proceedings in South Australia. The predecessor 2013 regulations may have been litigated, but that is not in the source and cannot be assumed. Because these are subordinate legislation, any challenge would likely be on administrative law grounds: ultra vires, unreasonableness, procedural fairness, or jurisdictional error by the Minister. Given the broad discretionary powers conferred by the regulations, challenges would be difficult. The lack of merits review in the regulations means the only avenue is judicial review in the Supreme Court of South Australia.

Potential future litigation could arise from the fit and proper person test. If the Minister refuses a permit or refuses to consent to a transfer based on a finding that an individual is not fit and proper, that person may challenge the decision. The regulations give no criteria for the fit and proper assessment, so the Court would need to imply them from the parent Act or from common law principles. The high degree of discretion may immunise the Minister’s decision unless it is so unreasonable that no reasonable Minister could have made it.

Another potential source of litigation is disputes over whether an activity falls within the miscellaneous fishery or within a prescribed fishery. If a fisher holds a permit under these regulations but is accused of fishing in a prescribed fishery without the appropriate licence, the boundary line may be contested. The definition in regulation 4(2) excludes “a fishing activity of a class constituted as a fishery by prescribed fishery regulations”. The term “class of fishing activity” is not defined. Litigation may be needed to determine the precise scope.

Given the small number of permit holders likely in this fishery, litigation is probable only in high-stakes situations, such as a refusal to transfer a valuable developmental permit or a prosecution imposing multiple $5,000 penalties.

The most significant trap is the broad Ministerial determination power in regulation 12. The Minister can, by determination, change the manner, form, times, and content of returns; the period for keeping records; the documents required for applications; and any other matter for the purposes of a regulation. There is no requirement for public consultation, no requirement for the determination to be laid before Parliament, and no requirement for a transitional period between publication and effect. The only procedural safeguard is that the determination must be published on the Department’s website and notice given to persons bound in a manner the Minister believes will bring it to their attention. But “notice” could be an email, a letter, or a posting on a website that the permit holder might not visit daily. A permit holder who does not see a new determination imposing a new return deadline or a new record-keeping requirement could be in breach without any warning. The expiation fee and maximum penalty apply immediately.

The fit and proper person test is a second major ambiguity. No criteria are given. The Minister may consider anything. Even a minor criminal conviction from decades ago, a civil penalty for a minor regulatory breach, or an association with someone under investigation could trigger an adverse finding. The test applies to every director of a corporate permit holder. If a company adds a new director who is not fit and proper, the company may lose its permit or face transfer restrictions. There is no mechanism for a preliminary ruling or binding advice.

Exploratory permits are non-transferable. This means that if a permit holder obtains an exploratory permit rather than a developmental permit, they cannot sell it or transfer it to another person if they wish to exit the fishery. The permit effectively has no capital value and cannot be used as security for loans. The regulations do not specify how the Minister decides between exploratory and developmental classification. An applicant may be silently assigned the less valuable class.

The registration provisions require “the documents specified in the application form”. The regulations do not list those documents. This means the compliance burden is not knowable from the legislation alone. The form may require plans, specifications, engineering certificates, insurance policies, or other costly items. A permit holder who prepares an application and then finds the form requires additional documents may face delays or additional costs.

The periodic returns requirement is not fixed; it is as determined by the Minister. If the Minister determines that returns must be provided monthly, that imposes a recurring administrative cost. If the Minister determines that records must be kept for ten years, that imposes storage and retrieval costs. There is no upper limit.

The requirement that records be “readily accessible” and produced for inspection “on request” is vague. A fisheries officer may demand records while the permit holder is at sea. If the records are at home, the permit holder may be unable to produce them immediately and thus commit an offence. The safe approach is to carry all paper or digital records on the person or on the boat at all times, which may be impractical.

Finally, the expiation fee is not a trivial amount. A $500 expiation for a failure to provide a return, and $210 for a record-keeping breach, can accumulate into a substantial financial penalty for a small operator. The regulations do not provide a grace period or a reasonable excuse defence.

First, determine whether your fishing activity actually falls within the Miscellaneous Exploratory and Developmental Fishery. If you are taking aquatic resources in South Australian waters and your activity is not within any of the ten prescribed fishery regulations (abalone, blue crab, charter boat, Lakes and Coorong, marine scalefish, prawn, river, rock lobster, sardine, vongole), then you likely need a permit under these regulations. If you hold a permit under a prescribed fishery, check its scope carefully - incidental catch of a species not covered may require a separate permit. Seek legal advice if the boundary is unclear.

Second, apply for the appropriate permit class. If you are an individual and wish to engage in exploratory fishing (testing new grounds, species, or techniques with no established commercial operation), apply for an exploratory permit. You must be at least 15 years old and the Minister must be satisfied you are a fit and proper person. If you have a developed business plan and intend to fish commercially, apply for a developmental permit. The distinction is important because exploratory permits are not transferable. Consider applying for a developmental permit even if you are pioneering, because the non-transferability of exploratory permits may seriously affect your business. The Minister’s decision on classification is discretionary; you may provide evidence of your business development to support a developmental classification.

Third, collate the documents required for the application. The regulations do not list them; you must obtain the application form from the Department and supply whatever documents are specified. For a company applicant, you will also need a current company extract from ASIC issued within one month of application, and you must ensure every director is a fit and proper person. A director with a criminal record, bankruptcy, or disqualification under the Corporations Act may need to be removed or steps taken before applying.

Fourth, once you hold a permit, comply with all conditions imposed by the Minister under regulation 6. These may limit the class of fishing activities, the gear used, the species taken, or the areas fished. Keep a copy of the permit and conditions on the boat or accessible at all times.

Fifth, monitor the Department’s website for Ministerial determinations. The Minister may change the manner, form, timing, and content of periodic returns, the period for retaining records, or any other matter. You will be bound by those determinations even if you do not receive direct notice, provided the Minister has taken steps to notify you. Set a calendar reminder to check the website weekly. If the Minister sends a notice by email or mail, ensure your contact details are current with the Department.

Sixth, prepare and submit returns as required by the Minister. The determination will specify how often and in what form returns must be provided. Keep a copy of each return you submit. Maintain a record of the return in good condition, legible, and readily accessible. If the Minister sets a retention period, keep the record for at least that long; if no period is set, keep it indefinitely or until a period is determined. Store the records in a way that you can produce them immediately upon request by a fisheries officer. Consider carrying digital copies on a waterproof device on the boat.

Seventh, register your boat, device, and master with the Department. Use the application form and provide all specified documents. If you need to change the registered master or boat, apply for revocation of the old registration and new registration as required.

Eighth, for entity changes: if you are a company and a director changes, ensure the new director is fit and proper. The same applies if a new director is appointed or an existing director is replaced. The regulations do not explicitly require notification of director changes, but a subsequent inspection or application may reveal a disqualified director, which could jeopardise the permit.

Ninth, for transfers: only developmental permits are transferable. If you wish to sell or transfer your permit, apply to the Minister for consent. Ensure all fees are paid, the permit is not suspended, no proceedings are pending or likely, and the transferee passes the fit and proper test. Provide a current company extract if the transferee is a company. If you hold an exploratory permit, you cannot transfer it. You would have to surrender it or let it expire.

Tenth, pay all fees and amounts due under the Act. These are not set in these regulations but under the Act or other regulations. Ensure compliance to avoid blocking a future transfer.

Finally, seek legal advice if you have any doubt about your status, the classification of your permit, or a Ministerial determination that seems onerous. The broad discretion in these regulations means that administrative decisions are hard to challenge, but a lawyer can advise on the likelihood of success in judicial review. Keep all receipts, permits, correspondence, and records for a minimum of seven years, or longer if the Minister determines. Compliance with these regulations is a continuing obligation, not a one-off event.