Fishing and Related Industries Compensation (Marine Reserves) Act 1997

This Act creates a statutory compensation scheme for holders of certain fisheries and pearling authorisations when a statutory marine-reserve decision reduces the market value of those authorisations. The entitlement is triggered by a defined set of “relevant events” linked to the Conservation and Land Management Act 1984 (the CALM Act) and to the Acts Amendment (Marine Reserves) Act 1997 (see s 4). When a relevant event occurs, any person holding an “authorisation” listed in s 3(1) (for example a commercial fishing licence, a fishing boat licence, managed fishery licence, an aquaculture lease or licence, a pearling licence or permit, or a farm lease) may be “an affected person” and is “entitled to fair compensation” for loss suffered (s 5(1)).

Loss, for the Act’s purposes, is defined in market-value terms: a person suffers loss only if the market value of the authorisation is reduced because of specific statutory consequences flowing from the relevant event (s 5(2)). The statutory list of value-reducing outcomes includes inability to renew the authorisation, inability to renew it in respect of particular types/classes/areas, requirement to take the CALM Minister’s recommendations into account on renewal, or the area ceasing to be available for commercial fishing (s 5(2)(a)-(f)). The measure of loss is expressly limited to the reduction in market value, and must be adjusted to take into account increases in market value that result from fisheries adjustment schemes established under the Fisheries Adjustment Schemes Act 1987 (s 5(3)).

Procedurally, the Minister administering the Fish Resources Management Act 1994 must publish notice of the occurrence of a relevant event (s 6), persons who claim to be affected apply to the Minister (s 7), the Minister must decide entitlement within 30 days (s 8(1)) and notify the applicant in writing, and either party may litigate entitlement or amount before the State Administrative Tribunal where agreement cannot be reached (ss 8-10). The Minister conducts negotiations about the amount of compensation if entitlement is established (s 9). Payment is to be made by the Minister, out of moneys appropriated and credited to the Fisheries Research and Development Fund (s 12(2)). The Governor may make regulations to give effect to the Act (s 13). The Act also provides for CEO-issued certificates confirming long-term, consistent historical fishing where s 5(2)(e) and (f) apply, and a Ministerial review process where the CEO fails to issue a certificate within a prescribed time (ss 5(5)-(9)).

Mechanically, then, the Act: identifies triggering events (s 4); defines compensable loss as a market-value reduction of an authorisation caused by specified statutory outcomes (s 5); sets procedural steps for notice, application, decision, negotiation and Tribunal determination (ss 6-11); prescribes the payment source (s 12); and enables regulations (s 13). The Act also incorporates cross-references to the Fish Resources Management Act 1994 and the Pearling Act 1990 for defined terms (s 3(2)), and is tied into Western Australia’s administrative framework for review by the State Administrative Tribunal (see amendments recorded in the compilation table).

The Act’s key legal concepts are defined or manifested in a narrow set of statutory constructs: “authorisation”, “relevant event”, “affected person”, “loss” (measured as market-value reduction), offsets for fisheries adjustment schemes, CEO certificates of long-term consistent fishing, Ministerial decision-making and negotiation, and Tribunal review. Definitions and cross-references appear mainly in s 3 and s 5.

Authorisation (s 3(1)) is a catalogue term. It lists the specific licences, permits and leases that the statute treats as property-like entitlements capable of suffering compensable loss. The list is exhaustive for the Act’s purposes and includes commercial fishing licences and managed fishery licences, fishing boat licences, fish processor’s licences, aquaculture leases and licences, hatchery licences and permits, and pearling licences and permits (s 3(1)(a)-(l)). Because s 3(2) imports meanings from the Fish Resources Management Act 1994 and the Pearling Act 1990 “unless the contrary intention appears”, the Act operates within the statutory definitions used in those primary regimes.

Relevant events are set out in s 4. They include the coming into operation of section 10 of the Acts Amendment (Marine Reserves) Act 1997 (s 4(a)), the constitution or addition to a marine nature reserve or marine park by CALM Act order (s 4(b)), amendments or substituted management plans under Division 1 of Part V of the CALM Act which render renewal of an authorisation inconsistent with the management plan (s 4(c)), and classification of a part of a marine park as a sanctuary, recreation or special purpose area where the CALM Minister has declared that a commercial activity specified in the notice would be incompatible with a conservation purpose (s 4(d)).

The statutory definition of compensable “loss” is tightly focused: loss exists only if the market value of the authorisation is reduced because of one of the enumerated statutory consequences (s 5(2)). The Act does not compensate for non-market harms, business interruption unrelated to market value of the authorisation, or consequential losses to other assets unless those losses are reflected in the authorisation’s market value. The measure of loss is limited to that market-value reduction (s 5(3)), and when assessing that reduction account must be taken of whether the reduction has been offset or mitigated by an increase in market value resulting from fisheries adjustment schemes (s 5(3)).

There are procedural concepts that shape real-world outcomes. The Minister has a statutory duty to notify affected persons after a relevant event (s 6). Affected persons must apply according to the notice (s 7). The Minister must determine entitlement within 30 days (s 8(1)), but the Act also contemplates Tribunal review either where the Minister says “not entitled” (s 8(1a)) or where the Minister does not decide within the 30-day window (s 8(2)). Once entitlement is established either by the Minister or the Tribunal, the Minister negotiates the amount of compensation (s 9) and may agree terms with the person, or either party may apply to the State Administrative Tribunal to determine the amount if no agreement is reached within 60 days of advice of entitlement (s 10). The Minister may still enter into an agreement while proceedings are on foot (s 11). Payment follows an agreement or determination and is sourced from appropriations and funds credited to the Fisheries Research and Development Fund (s 12).

Primary beneficiaries are holders of the defined authorisations listed in s 3(1). That includes licence and permit holders across commercial fishing, aquaculture, pearling and hatchery operations, fish processors holding relevant licences, farm lease-holders and holders of managed fishery licences or interim managed fishery permits. The Act also covers holders of fishing boat licences whose value is derived from access to areas used for fishing under related authorisations (s 5(2)(f)).

Secondary affected parties include persons and entities that have a financial interest in those authorisations,prospective purchasers, financiers and investors,because the Act changes the spectre of potential loss caused by marine-reserve decisions into a statutory entitlement to compensation for a specified class of market-value loss. The Act expressly dictates that where transferability might otherwise be restricted under the Fish Resources Management Act 1994, valuation for compensation purposes treats the authorisation as fully transferable (s 5(4)). That specific treatment alters the valuation baseline for holders, financiers and buyers.

Government actors are also affected. The Minister administering the Fish Resources Management Act 1994 (the “Minister” in s 3(1)) is the decision-maker entitled to publish notices (s 6), determine entitlement within a tight timeframe (s 8(1)), conduct negotiation over quantum (s 9), and make payments following agreement or Tribunal determination (s 12(1)). The CALM Minister features in the triggering events and in management plan processes in s 4 and in the provisions that refer to taking CALM Minister recommendations into account on renewal of authorisations (s 5(2)(d)). The CEO (as defined under the Fish Resources Management Act 1994) is an administrative gatekeeper: the claimant must obtain a CEO certificate confirming long-term consistent fishing where area-based restrictions are asserted (s 5(5)-(6)), and the CEO has specified review and advisory duties if the certificate is refused or not issued in time (s 5(7)-(9)).

Financially, the State bears the cost of compensation payments. The Act requires payments be made by the Minister out of moneys appropriated for the Act’s purposes and credited to the Fisheries Research and Development Fund (s 12(2)). Therefore, taxpayers and fund contributors bear the economic cost of compensation. The Fund is continued under s 238 of the Fish Resources Management Act 1994 and is the statutory corpus from which payments will be drawn, subject to appropriation. The Act confers no private right to commandeer funds beyond appropriations and the Fund’s balance, meaning budgetary decisions and Fund sufficiency are relevant to practical outcomes.

The Act creates a set of administrative duties and private rights. The principal private right is the entitlement to “fair compensation” for loss suffered by holders of authorisations when a relevant event has caused a reduction in the market value of the authorisation (s 5(1)-(2)). That right is conditional and tightly defined: loss exists only if the market value is reduced for one of the reasons enumerated in s 5(2), and the compensable amount is limited to the amount of that reduction (s 5(3)).

Ministerial duties are both procedural and substantive. Procedurally, the Minister must publish notice “as soon as practicable” after a relevant event occurs, informing affected persons that they may apply for compensation and giving details of how to apply (s 6(1)-(2)). The Minister must, within 30 days of receiving an application, decide whether the applicant is entitled to compensation and advise the applicant in writing (s 8(1)). If the Minister advises that the person is not entitled, the applicant may apply to the State Administrative Tribunal for review (s 8(1a)). The Minister also has a negotiation duty to seek a settlement on quantum where entitlement is established (s 9(1)). If an agreement is reached, the Minister must enter into it (s 9(2)). If no agreement is reached within the 60-day negotiation window after advice of entitlement, either party may apply to the State Administrative Tribunal to determine quantum (s 10(1)). Once an agreement is reached or a Tribunal determination is made, the Minister must pay the amount of compensation (s 12(1)).

The CEO’s duties are procedural and documentary in relation to area-based claims. For claims under s 5(2)(e) or (f) where an authorisation’s market value is reduced because an area will not be available for commercial fishing after renewal, a claimant must obtain a CEO certificate that the area has been fished on a long-term and consistent basis (s 5(5)-(6)). If the CEO fails to issue such a certificate within the prescribed time, the claimant may apply to the Minister to have the matter reviewed (s 5(7)). The Minister must then direct the CEO to review the matter and the CEO must review and either issue the certificate or advise reasons for not doing so within the directed time (s 5(8)-(9)). These provisions allocate the evidentiary gatekeeping function to the CEO while giving the Minister supervisory review powers.

Valuation duties are implicit rather than prescriptive. The Act requires that, in determining whether a reduction in market value has occurred and the amount of that reduction, account is taken of increases in market value resulting from voluntary or compulsory fisheries adjustment schemes under the Fisheries Adjustment Schemes Act 1987 (s 5(3)). The Act further requires that an authorisation otherwise non-transferable by virtue of s 140(2)(b) of the Fish Resources Management Act 1994 be valued as if fully transferable for compensation purposes (s 5(4)). There is no detailed statutory methodology for valuation; the Act sets the valuation baseline and offset rules while leaving the substantive valuation work to valuation experts, negotiation and Tribunal determination.

The Act does not create criminal penalties or civil sanctions for non-compliance in the manner of many regulatory statutes. It is a compensation and procedural statute, not a penal statute. There are no express offences in the text provided, no administrative penalty regime, and no express power to impose fines or other punitive sanctions under this Act for non-compliance by applicants or by the Minister. Enforcement in the Act is primarily remedial and procedural: it establishes a rights-based enforcement mechanism (compensation) and dispute-resolution pathways (Ministerial decision, State Administrative Tribunal review/determination).

The principal enforcement mechanism for a claimant is administrative review and Tribunal determination. If the Minister declines entitlement, the claimant may apply to the State Administrative Tribunal for review of that decision (s 8(1a)); if the Minister simply fails to decide within 30 days the claimant may apply to the Tribunal to determine entitlement (s 8(2)). For quantum disputes, either the affected person or the Minister may apply to the State Administrative Tribunal to determine the amount where negotiation has not settled the matter within the 60-day negotiation period (s 10(1)). The Tribunal’s determinations are binding on quantum pursuant to s 12(1) which instructs the Minister to pay compensation following an agreement or a Tribunal determination.

There is a supervisory administrative requirement on the Minister and the CEO. The Minister must publish notice of the occurrence of a relevant event “as soon as practicable” (s 6(1)), and must make the substantive decision as to entitlement within 30 days of receipt of an application (s 8(1)). The CEO is required to act on certificate requests within prescribed times and, if the CEO does not issue a certificate within the prescribed time, a claimant may apply to the Minister for review and the Minister must direct the CEO to review within a specified time; the CEO must then either issue a certificate or advise reasons (s 5(7)-(9)). Non-compliance by the CEO or Minister produces a right to administrative review rather than a statutory fine.

Financial enforcement is effected by payment obligation. Section 12(1) imposes a clear duty on the Minister to pay compensation where an agreement as to quantum exists or the State Administrative Tribunal has determined quantum. The practical enforcement of that duty depends on appropriation and fund availability because s 12(2) restricts payment to moneys appropriated for the Act’s purposes and credited to the Fisheries Research and Development Fund. If funds are insufficient, the statute does not articulate a priority mechanism beyond the requirement that payment be made from those sources; budgetary processes and appropriation law will determine practical enforceability.

The Act operates as a specialised compensation overlay on existing regulatory regimes for fisheries, pearling and marine reserves. It cross-references and imports definitions and administrative interactions from three primary statutes: the Fish Resources Management Act 1994, the Pearling Act 1990 and the Conservation and Land Management Act 1984 (the CALM Act). It also explicitly requires consideration of fisheries adjustment schemes under the Fisheries Adjustment Schemes Act 1987 when assessing compensable loss (s 5(3)), and its procedural review and Tribunal interactions are mapped onto the State Administrative Tribunal regime by the amendments recorded in the compilation table.

Definitionally, s 3(2) provides that expressions given a meaning by the Fish Resources Management Act 1994 or the Pearling Act 1990 have the same meaning in this Act, unless a contrary intention appears. That means key terms like “managed fishery licence”, “commercial fishing”, or “authorisation” drawn from those statutes will be consistent across the regulatory field. Section 5(4) directly addresses a cross-act interaction: where the transfer of an authorisation would otherwise be refused under s 140(2)(b) of the Fish Resources Management Act 1994, the Act instructs that the market value is to be assessed as if the authorisation were fully transferable for compensation purposes. This is a deliberate statutory disconnection between transferability under the Fish Resources Management Act and valuation for compensation under this Act.

The CALM Act supplies the substantive triggers. Section 4 lists events under the CALM Act that can give rise to compensation: constitution or addition of marine reserves or parks by CALM Act order (s 4(b)); amendments or substitutions of management plans under Part V Division 1 of the CALM Act that make renewal inconsistent (s 4(c)); and classification of areas of marine parks by section 62 of the CALM Act as sanctuary, recreation or special purpose areas where the CALM Minister declares commercial activity incompatible with conservation purposes (s 4(d)). The Act therefore sits downstream of CALM Act land-use and conservation decision-making, creating compensation liabilities when CALM decisions reduce the market value of specified authorisations.

Assessment of compensable loss explicitly requires account to be taken of fisheries adjustment schemes established under the Fisheries Adjustment Schemes Act 1987 (s 5(3)). The Act thereby recognises the interplay between compensation for lost access/value and the compensatory or redistributive mechanisms that operate within fisheries adjustment frameworks, and it requires offsetting increases in market value resulting from such schemes to reduce the compensable amount.

The compilation table in the material supplied records several amendments to the Act and relevant consequential legislative changes. The Act was originally assented to on 2 December 1997 and commenced the same day as specified in s 2. The compilation table then records the following amending instruments and commencement events.

• State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (No. 55 of 2004). Parts of that Act affected this Act by conferring jurisdiction on the State Administrative Tribunal and dealing with transitional matters. The compilation notes indicate reprint and commencement details for that amendment, and the Act was operative from 1 January 2005 for the relevant provisions. Sections of this Act were amended to provide for review by the State Administrative Tribunal: for example s 8 was amended to include ss 8(1a) and 8(3), and ss 9-12 received amendment notations referencing No. 55 of 2004 (see notes after respective sections).

• Machinery of Government (Miscellaneous Amendments) Act 2006 (No. 28 of 2006). This amending Act made machinery-of-government style amendments, notably changing references to the Executive Director to the CEO as defined in the Fish Resources Management Act 1994. The 2006 amendment is reflected in the compiled version of the Act and in compilation note 4 which reproduces the transitional provision affecting references to the Executive Director and CEO. The amendments took effect on 1 July 2006.

• Conservation and Land Management Amendment Act 2015 (No. 28 of 2015), s 74. This amending Act made changes to the CALM Act which interact with the trigger events in s 4. The compilation table records commencement of these changes on 7 May 2016. The material also notes that s 4 was amended by No. 28 of 2015 s 74(2) and s 5 was amended by s 74(3). Those amendments refined the statutory triggers and the definitions relating to classification of marine park areas and the treatment of authorisations.

The compilation table includes a reprint (Reprint 1) of the Act as at 6 August 2004. The compilation also notes an uncommenced provision from the Aquatic Resources Management Act 2016 (Pt 19 Div 6) that was to be proclaimed. The uncommenced status is recorded in the uncommenced provisions table, and the compilation note advises checking the WA Legislation website for up-to-date commencement information.

Other notes in the compilation explain transitional provisions, including the State Administrative Tribunal Regulations 2004 r. 51 (quoted in note 3) which addresses transitional issues for advice given under s 8(1) before the Tribunal regime’s commencement day: such advice is to be taken to be an advice received on the commencement day, preventing loss of rights because of the Tribunal’s commencement. The Machinery of Government transitional provisions (quoted in note 4) explain how references to the Executive Director are to be read as references to the CEO after the 2006 amendments, unless a contrary intention appears.

The material supplied contains no case law citations and names no judicial decisions. The Act as compiled does not itself report any litigation or appellate decisions. The compilation notes refer instead to administrative and legislative transitions,specifically the transfer of jurisdiction to the State Administrative Tribunal under the 2004 amendments and transitional regulations (see compilation notes 2 and 3 and the quoted r. 51 of the State Administrative Tribunal Regulations 2004). Those notes show how the statutory review pathway moved from the Fisheries Adjustment Compensation Tribunal (established under the Fisheries Adjustment Schemes Act 1987) to the State Administrative Tribunal, and they address conversion of pre-commencement decisions to preserve rights and remedies.

Given that the text provided does not include any reported cases or decisions, practitioners seeking litigation history will need to search tribunal and court databases for decisions under the Act, including State Administrative Tribunal determinations on entitlement and quantum for compensation claims under this Act, and any appeals from the Tribunal to the Supreme Court of Western Australia or higher courts. The Act’s procedure gives the State Administrative Tribunal jurisdiction to determine entitlement and quantum in specified circumstances (ss 8-10, as amended), so the Tribunal’s decisions are the natural first source of administrative-law jurisprudence under the Act. Any judicial review of Tribunal decisions would proceed through the courts system and would be reported in court records, but none are cited in the supplied material.

Practically, the principal avenues for dispute resolution under the Act are:

• Ministerial decision on entitlement within 30 days (s 8(1)). If the Minister refuses, the affected person can apply to the Tribunal for review (s 8(1a)) within 21 days.

• Where the Minister fails to decide within the 30-day statutory period, the affected person may apply to the Tribunal to determine entitlement (s 8(2)). That application must likewise be brought within the 21-day limit from expiry of the decision period (s 8(3)).

• Once entitlement is established, if the Minister and affected person cannot agree on quantum within 60 days of advice of entitlement, either party may apply to the Tribunal to determine quantum (s 10(1)).

These procedural routes implicate the State Administrative Tribunal as the primary forum for contested matters. The transition rules in the compilation notes were intended to ensure continuity where advice under s 8(1) had been given before the Tribunal’s jurisdiction began. For concrete litigation history, researchers and practitioners must consult tribunal and court databases; the supplied compilation contains no reported litigation to cite.

The Act contains a number of technical traps and implementation risks that practitioners should flag for clients and compliance officers. These are concrete mechanical features of the statute, not policy judgments.

1. Narrow definition of compensable loss (s 5(2)-(3)). Compensation is available only where the market value of the authorisation is reduced for the specific reasons listed in s 5(2). Non-market harms, business interruption unrelated to an authorisation’s market value, or losses to associated business assets that do not affect the authorisation’s market value are not compensable under this Act. The compensable measure is limited to the reduction in market value (s 5(3)) and must be reduced by any increase in market value that results from fisheries adjustment schemes (s 5(3)). Practitioners must therefore frame claims tightly around market-value reduction and be prepared to evidence valuation metrics and offsets.

2. CEO certificate precondition and timing (s 5(5)-(9)). For area-based claims under s 5(2)(e) and (f) a claimant must obtain a certificate from the CEO confirming that the relevant area has been fished on a long-term and consistent basis (s 5(5)-(6)). If the CEO fails to issue the certificate within the “prescribed time” after being asked, the claimant may apply to the Minister (s 5(7)), who must direct the CEO to review and who thereby imposes a fresh time limit on the CEO (s 5(8)-(9)). The phrase “prescribed time” imports regulation-making consequences; practitioners must check whether regulations have been made prescribing timeframes and evidentiary requirements. Delays or inconsistent practice by the CEO can prolong claim resolution and create evidentiary disputes.

3. Short decision and appeal windows (ss 6-8). The Minister must advise entitlement within 30 days of an application (s 8(1)), and if the Minister refuses an applicant has only 21 days from receipt of that advice to apply to the State Administrative Tribunal for review (s 8(3)). If the Minister fails to decide within 30 days the affected person also has 21 days to apply to the Tribunal (s 8(2)-(3)). For quantum, the negotiation clock is 60 days from advice of entitlement before either party can apply to the Tribunal (s 10(1)). These short windows require careful diary management; failure to apply within the 21-day period can forfeit review rights.

4. Valuation baseline altered for transferability refusals (s 5(4)). Where transfer of an authorisation could be refused under s 140(2)(b) of the Fish Resources Management Act 1994, the Act nonetheless requires valuers and decision-makers to assess market value “as if the authorisation were fully transferable” for compensation purposes. That statutory fiction can materially increase assessed market value compared with transferability-limited valuations, but it may also create valuation disputes about what “fully transferable” means in practical market terms.

For holders of qualifying authorisations and their advisors, compliance with the Act’s procedural and evidentiary requirements is primarily an exercise in timing, documentation and valuation evidence. The steps below follow the statutory architecture and cite relevant sections.

1. Monitor triggers and expect a public notice. The Minister must publish notice “as soon as practicable” after a relevant event, informing affected persons of the event, its nature, that they may apply for compensation and how, when and in what form they may apply (s 6(1)). Notices must be published in a newspaper or fishing magazine circulating generally in the State, or “in such other manner as is prescribed” (s 6(2)). Responsible licensees should monitor official gazettes, fisheries and pearling licensing communications, CALM Act notices, and relevant industry publications to detect notices promptly.

2. Prepare to apply in the manner and within the period specified in the notice (s 7(2)). The Act makes application windows and forms contingent on the Minister’s notice. Practitioners must obtain the notice text and adhere strictly to its stated form and deadline. Track the notice’s timing because the Minister’s 30-day decision clock (s 8(1)) and the 21-day appeal window (s 8(3)) run from the application and advice timeline.

3. Assemble valuation evidence focused on market-value reduction (s 5(2)-(3)). Compensation is limited to reduction in market value of the authorisation resulting from enumerated statutory consequences. Obtain a robust valuation report that: (a) establishes the pre-event market value of the authorisation; (b) quantifies the post-event market value; (c) explains valuation assumptions, comparables and discount rates; (d) accounts for the s 5(4) rule where transferability would otherwise be refused by valuing as if fully transferable; and (e) documents any relevant participation in fisheries adjustment schemes and the quantifiable effect of those schemes on market value (s 5(3)). Make sure the valuation methodology is defensible before the State Administrative Tribunal.

4. For area-based claims, seek the CEO certificate early (s 5(5)-(6)). If the claim rests on an area becoming unavailable for commercial fishing after renewal (s 5(2)(e) or (f)), apply to the CEO for the statutory certificate confirming long-term and consistent historical fishing in the area. Provide contemporaneous records, logbooks, catch records, vessel activity records and any permits linking the authorisation to that area. If the CEO does not issue the certificate within the prescribed time, promptly invoke the Ministerial review process (s 5(7)-(9)): apply to the Minister to direct the CEO to review within a specified time.