Marine Estate Management (Management Rules) Regulation 1999

Recreational fishers. Recreational fishing is the most common activity affected. In sanctuary zones, no fishing of any kind is permitted without Ministerial consent. In habitat protection zones, fishing is limited to hand line, rod and line, by hand, by scoop net, landing net, or spear/spear gun. In general use zones, broader fishing activities are permitted but some methods may be restricted by park-specific rules.

Commercial fishers. Commercial fishing in sanctuary zones is prohibited. In habitat protection zones, commercial fishing may be permitted where ecologically sustainable and without significant impact on fish populations, but only with consent. In general use zones, commercial fishing is generally permitted but subject to the applicable fisheries management laws.

Aquaculture operators. Aquaculture is not permissible in sanctuary zones (clause 1.12) and requires Ministerial consent in habitat protection zones (clause 1.18). The Fisheries Management Act 1994 also governs aquaculture permits.

Boaters and vessel operators. In sanctuary zones, vessels may only be anchored or moored at designated sites (clause 1.14). Fishing from a mooring in a sanctuary zone is prohibited (clause 1.15). Personal watercraft are typically regulated separately under park-specific rules in Parts 2-7.

Divers and snorkellers. Non-fishing underwater activities (observation, photography) are generally permitted in all zone types as they do not involve harming animals or plants, provided equipment such as spears or collecting bags are not used.

Researchers. Scientific research is permitted in sanctuary zones if Ministerial consent is obtained. In other zones, research is generally permitted provided it does not involve harming protected species in ways otherwise prohibited.

Aboriginal people. Traditional use (personal, domestic or non-commercial communal needs of Aboriginal people) is one of the grounds on which Ministerial consent may be given for activities in sanctuary and habitat protection zones (clause 1.11(2), clause 1.16(2)(a)). The intersection between the Regulation's prohibitions and native title rights has been litigated in NSW courts (see case-law research).

Sanctuary zone prohibitions (clause 1.11):

• Must not harm or attempt to harm any animal
• Must not harm or attempt to harm any plant
• Must not damage, take or interfere with any part of the habitat (including soil, sand, shells, or other naturally occurring material)
• Must not clean any fish or fishing gear
• These prohibitions apply unless Ministerial consent has been obtained for research, environmental protection, public health, traditional use or public safety purposes

Habitat protection zone prohibitions (clause 1.16):

• Must not harm or attempt to harm any animal other than fish
• Must not harm or attempt to harm any plant
• Must not damage, take or interfere with any part of the habitat
• Consent is available for: research, environmental protection, public health, traditional use, public safety, or ecologically sustainable use with no significant impact on fish or other species

Habitat protection zone fishing (clause 1.17):

• A person must not take fish in a habitat protection zone except by one of the permitted fishing methods (hook and hand line, by hand, scoop net, spear/spear gun, or other method permitted by the park-specific management rules)
• A person must not take fish in contravention of the park-specific management rules

General use zone (clause 1.19):

• Must not harm any animal (other than fish), plant, or habitat except with consent
• Fishing is generally permitted but subject to the park-specific management rules and applicable fisheries laws

Vessel mooring in sanctuary zones (clause 1.14):

• Must only anchor or moor at designated sites
• Exception: emergency anchoring to protect life or property

Regulations apply subject to other laws (clause 1.4):

• The Regulation does not authorise anything that would contravene the Fisheries Management Act 1994, National Parks and Wildlife Act 1974, or a marine park notification under section 57 of the Act

Dredging and beach replenishment in sanctuary zones (clause 1.13):

• Not permitted except with Ministerial consent, which is only available to prevent serious risk of injury, damage to property or harm to the environment, or for organised research

Ministerial consent. The "relevant Ministers" (required under clause 1.5 to act jointly) have broad consent powers across all zone types. In sanctuary zones, consent may only be given for research, environmental protection, public health, traditional use, or public safety (clause 1.11(2)). In habitat protection zones, consent may also be given for ecologically sustainable uses with no significant impact on fish or other species (clause 1.16(2)). In general use zones, consent may be given for ecologically sustainable uses (clause 1.19(2)).

Park-specific rules (Parts 2-7). Each marine park's management rules in Parts 2-7 can add to or modify the general provisions in Part 1. For example, the Jervis Bay Marine Park rules (Part 3) create the Hare Bay Sanctuary Zone which was the subject of the Connolly prosecution.

Permit system. Permits under the Marine Estate Management Regulation 2017 can authorise activities that would otherwise be prohibited by this Regulation.

Serious offences (sanctuary zone): Contravention of clause 1.11(1) (harm to animals, plants, or habitat in a sanctuary zone) is designated a serious offence under section 41 of the Marine Estate Management Act 2014. Maximum penalty:

• Individual: 500 penalty units
• Corporation: 1,000 penalty units

Forfeiture offences (habitat protection and general use zones): Contraventions of clauses 1.16(1) (habitat protection zone) and 1.19(1) (general use zone) are designated forfeiture offences under section 67 of the Act. The forfeiture offence mechanism allows the court to order forfeiture of equipment used in the offence.

Maximum penalty 100 penalty units: Specific offences including anchoring or mooring in unauthorised locations in sanctuary zones (clause 1.14), fishing from moorings in sanctuary zones (clause 1.15), fishing by prohibited methods in habitat protection zones (clause 1.17), and dredging in sanctuary zones (clause 1.13).

Ministerial consent process: No prescribed time period or formal process is specified in the Regulation. Applications for consent are made to the relevant Ministers, who must act jointly (clause 1.5(2)).

Zone classification: The management rules for each park (Parts 2-7) specify the geographical boundaries of each zone. Changes to zone boundaries require amendment of the Regulation.

Compliance with fisheries management: The Regulation operates alongside (not in replacement of) the fisheries management licensing regime. Taking fish in permitted zones still requires compliance with applicable Fisheries Management Act licences, endorsements, and bag limits.

Marine Estate Management Act 2014 (NSW). The parent legislation. Section 41 of the Act creates the framework for serious offences by designating regulatory contraventions as serious or forfeiture offences. Section 65 provides that the Regulation operates in addition to other Acts. Division 6 of Part 5 of the Act requires consideration of marine park zone objects in environmental planning decisions under the Environmental Planning and Assessment Act 1979.

Fisheries Management Act 1994 (NSW). Clause 1.4 makes clear that the Regulation operates subject to the Fisheries Management Act. Commercial fishing licences and endorsements issued under the FM Act are still required even where the Regulation permits fishing in a zone. Key definitions (fish, aquaculture, commercial fisher) are borrowed from the FM Act.

National Parks and Wildlife Act 1974 (NSW). Clause 1.4 also makes clear that nothing in the Regulation authorises conduct that would breach the NPWA or regulations under it. Animals that are threatened species under the NPWA retain their protection even in general use zones where some fishing is permitted.

Environmental Planning and Assessment Act 1979 (NSW). Division 6 of Part 5 of the Marine Estate Management Act requires marine park zone objects to be considered in EP&A Act development assessment and activity approvals.

Native Title Act 1993 (Cth). Native title rights of Aboriginal people to take fish for traditional, domestic, or non-commercial communal purposes are a relevant consideration in prosecutions under the Regulation. The Connolly decision (NSWLC 2022) addressed the issue of whether fishing in a sanctuary zone could be defended on the basis of native title rights.

Babington v Commonwealth (2016) -- Fisheries Management (Abalone Share Management Plan) Regulation 2000. The Full Federal Court considered the validity of the NSW marine estate regulatory framework, including the Marine Estate Management Act, in the context of a constitutional challenge to abalone fishing restrictions.

Sanctuary zone prohibition is absolute for fish too. The prohibition in clause 1.11(1)(a) covers "any animal," which includes fish (as defined in the Act). Anglers who enter a sanctuary zone to fish commit a serious offence even if they are experienced recreational fishers unaware that the zone boundary extends to that location. Ignorance of zone boundaries is not a defence.

"Clean a fish" is prohibited in sanctuary zones. Clause 1.11(1)(d) specifically prohibits cleaning fish or fishing gear in a sanctuary zone. A fisher who catches a fish in the adjacent general use zone and then moves into the sanctuary zone to clean it on the rocks commits a serious offence.

Habitat protection zones permit limited fishing but not all fishing methods. Clause 1.17 permits hand line, rod, spear, and hand collection in habitat protection zones, but the park-specific management rules in Parts 2-7 may restrict these further. A fisher using a set line (nets pegged to the bottom) in a habitat protection zone would likely be committing an offence even if set lines are permitted in adjacent coastal waters.

Traditional use consent does not provide a general exception. Even for Aboriginal people with traditional connections to a marine park, activities otherwise prohibited in sanctuary zones require Ministerial consent (clause 1.11(2)). The Regulation provides that consent can be given for "traditional use," but this is a discretionary Ministerial power, not an automatic right. The native title defence available under the Fisheries Management Act's section 211 provisions has its own requirements (as discussed in the Connolly case).

Zones may not adjoin in a legally meaningful way. Clause 1.3(2) provides that a zone does not "adjoin" another zone if the zones only share a single corner point. This prevents gaps or overlaps in zone coverage from creating ambiguity about what zone a location falls in.

The Regulation applies subject to other laws -- in both directions. Clause 1.4 means that the Regulation cannot be used to authorise conduct that is prohibited by the Fisheries Management Act or the National Parks and Wildlife Act, even if the zone otherwise permits the activity. Conversely, activities permitted by the Regulation must still comply with those other laws.

Example 1: Recreational fishing in Jervis Bay Marine Park. A recreational fisher wants to fish in the waters off the Beecroft Peninsula in the Jervis Bay Marine Park. Under Part 3, the Hare Bay area is classified as a sanctuary zone (the Hare Bay Sanctuary Zone). Fishing of any kind in that area is prohibited under clause 1.11(1). The fisher must check the zone map before entering the water.

Example 2: Abalone diver in habitat protection zone. A diver wishes to collect abalone in a habitat protection zone of the Solitary Islands Marine Park (Part 2). "Taking" an abalone is taking an animal. Because abalone is a fish under the Fisheries Management Act 1994 definition (it is an aquatic animal including molluscs), it falls within the carve-out in clause 1.16(1)(a) (harm to animals "other than fish"). However, the diver must still comply with any fisheries management restrictions on bag limits and closures under the FM Act.

Example 3: Aquaculture operator. A shellfish farmer holds an aquaculture lease over an area of the Port Stephens-Great Lakes Marine Park. If the lease area falls in the sanctuary zone, aquaculture is not permissible (clause 1.12). If it falls in the habitat protection zone, aquaculture requires Ministerial consent (clause 1.18).

Example 4: Aboriginal person fishing in a sanctuary zone. An Aboriginal person with a traditional connection to the Jervis Bay area wishes to take fish for personal consumption from within the Hare Bay Sanctuary Zone, claiming it is a traditional use. This does not give an automatic right to take fish. Ministerial consent would be required under clause 1.11(2), and the traditional use ground for consent applies only to personal, domestic, or non-commercial communal needs (clause 1.3 definition). Commercial fishing cannot be characterised as a traditional use under the Regulation. The native title defence under section 211 of the Native Title Act is also available but has its own requirements, as considered in the Connolly case.

Example 5: Research vessel anchoring in sanctuary zone. A marine research vessel wishes to anchor in the sanctuary zone of the Cape Byron Marine Park (Part 5) to conduct underwater surveys. Anchoring at an undesignated location is prohibited by clause 1.14. The researchers must either use a designated mooring or anchorage (if any), or obtain Ministerial consent for the research activity which could also cover mooring at a non-designated location.