Pearling Act 1990

The Act primarily regulates commercial participants in the Western Australian pearling industry. Holders of pearling licences, hatchery licences or permits are the central regulated class; they may not carry out activities except in accordance with their authorisation and its conditions (ss.7-8). Natural persons must hold pearl diver's licences before diving (s.13), while boats used off-farm require pearl boat licences and masters require pearl boat master's licences (ss.14-15).

Farm lease holders occupy a privileged position: they enjoy deemed ownership of pearls, oysters and spat on their lease used for authorised activities (s.18), may exclude unauthorised persons after CEO authorisation (s.17), and are the only persons from whom oysters may be taken from a farm (s.26(4)). Employees and agents are personally liable for breaches unless they prove reasonable belief that their principal or employer was authorised (defences in ss.7(3), 8(6)).

The Act reaches upstream to suppliers and downstream to buyers: hatchery-produced oysters cannot be sold without CEO approval (s.12), and undersized or oversized oysters cannot be possessed, sold or brought into the State (s.21(1)). Any person interfering with authorised activities commits an offence (s.20). Masters of boats are vicariously liable for offences committed using their vessel (s.57).

Inspectors (departmental officers and all fisheries officers under the Fish Resources Management Act 1994) exercise powers that affect any person encountered during patrols. The Pearling Industry Advisory Committee membership is drawn from persons with relevant expertise (s.39), while the CEO and Minister hold broad discretionary powers affecting applicants for leases, licences and transfers.

Recreational fishers are largely outside the Act's scope except where they intersect with declared species or marine reserves. Foreign boats are expressly excluded from certain State management arrangements (s.44). Joint Authority fisheries extend the Act's reach to Commonwealth waters when arrangements are in force, affecting operators who would otherwise fall under the Fisheries Management Act 1991 (Cth).

Indirectly the Act affects pearl wholesalers, processors, exporters and tourism operators near pearl farms, as well as traditional owners whose native title rights may intersect with exclusive farm leases. The marine reserve provisions (ss.23A, 27A, 27B) engage the conservation bureaucracy administering the Conservation and Land Management Act 1984.

Holders of authorisations owe duties to comply with every condition (s.8(1)), pay annual fees on time or face automatic cancellation (s.27(2)), move all production to a farm by the statutory deadline (s.16), and keep required records (Sch. 2 item 3). Quota holders must not exceed prescribed numbers, with all hatchery product bought or obtained during a period deemed taken under the licence for quota purposes (s.11). Identification and container regulations are treated as quota conditions (s.8(3)-(4)).

Farm lease holders must actively use the site "in the better interests of the pearling industry" or risk cancellation (s.30(2)). They enjoy the right to exclude trespassers once authorised by the CEO (s.17) and benefit from the property presumption in s.18. All authorisation holders have the right to apply for renewal, transfer (subject to CEO approval under s.32) or review in the SAT where the CEO refuses issue, renewal, imposes conditions, cancels or suspends (s.33).

The CEO must give written reasons for refusals (ss.12(3), 23(7), 27(5), 30(3), 32(7)) and publish notice of new farm leases, pearling or hatchery licences in the Gazette, triggering review rights (s.23(8)). Inspectors must produce identification (s.35(4)) and may be required to compensate vessel operators for transport and accommodation costs (s.37(3)).

Defence rights exist for employees who reasonably believed their employer held authority (s.7(3)) or lacked knowledge of a condition (s.8(6)). Persons charged with size offences can shift financial liability to their principal if they received the oysters in the same state and were ignorant (s.21(5)-(6)).

The Minister may issue policy guidelines (s.24) and temporary prohibitions (s.19), while the Joint Authority may issue policy statements binding its delegates (s.51). Members of the Advisory Committee and officials enjoy personal liability protection for good-faith acts (ss.42, 61). Information obtained under the Act is protected from unauthorised disclosure (s.62).

Applicants for research permits benefit from a lower threshold: the CEO need only be satisfied the activity is for research, investigation or a prescribed purpose (s.23(5)). Owners of seized oysters or spat that are later found not to involve offences may recover proceeds or compensation from the Fisheries Research and Development Account (s.55(4)-(5)).

Penalties are graduated and deterrent. Unlicensed pearling or hatchery activities attract a $50,000 fine plus a mandatory further penalty of twice the wholesale value of oysters or spat involved (s.7(2)). Breaches of conditions attract $10,000 unless quota or area provisions are engaged.

Quota offences under s.8 trigger a three-tiered regime in s.9: under 100 oysters on a first offence is $10,000; second offence or 100+ oysters is $40,000 with temporary quota reduction (2-3 years); third or subsequent (or second serious) offence is $100,000 with permanent quota reduction rounded up to the nearest 1,000. Knowledge of the holder is presumed (s.9(6)). Area breaches carry $50,000 plus twice wholesale value (s.10).

Other offences are lower: diving without a licence, using an unlicensed boat or acting as master without a licence each attract $2,000 (ss.13-15). Failure to move oysters to a farm by deadline is $10,000 (s.16). Taking undersized or oversized oysters is $5,000 (s.21). Ministerial prohibitions attract $10,000 (s.19(2)). Interfering with activities or false information to inspectors is $2,000 or, for authorisation holders, $10,000 (ss.20, 58). Obstructing inspectors or preventing compliance is $20,000 (s.59). Regulations may create offences up to $2,000 (s.60(3)).

Enforcement tools are robust. Inspectors may stop vessels, board, search, seize, direct vessels to port, require assistance and arrest without warrant if necessary to prevent continuation (s.36(3)). Seized oysters or equipment may be forfeited on conviction (s.54) or sold pending prosecution with proceeds held (s.55). Master vicarious liability applies (s.57). Corporate officers are liable under Criminal Code s.39 for listed offences (s.56). Evidentiary presumptions simplify proof: allegations of location are conclusive absent contrary evidence; possession of oysters presumes authorised activities (s.53).

Automatic cancellation occurs on third s.8 conviction in 10 years (s.29) or loss of supporting hatchery or pearling licence (s.30(1)). SAT review stays most adverse decisions pending outcome (s.34), preserving business continuity.

The Act is expressly linked to several statutes. Definitions cross-reference the Fisheries Management Act 1991 (Cth) for "Australian fishing zone" and "foreign boat", and the Fish Resources Management Act 1994 for "Department", "CEO" and "Fisheries Research and Development Account" (s.3(1)). Part 7 operates in tandem with (now repealed) Part IIA of the Fisheries Act 1905 but remains relevant for existing arrangements; it modifies application to Joint Authority fisheries, displacing the Act for foreign boats in the AFZ (s.44) and conferring Joint Authority licensing powers (s.46).

Marine reserve provisions (ss.23A, 27A, 27B) are tightly integrated with the Conservation and Land Management Act 1984. No authorisations may be issued in marine nature reserves or pearling-exclusion zones of marine parks; other marine park or management areas require concurrence of the CALM Minister, and renewals must be consistent with management plans or follow consultation (s.23A(2), (4)).

The State Administrative Tribunal Act 2004 governs review procedure (Part 4). The Personal Property Securities Act 2009 (Cth) is engaged by a declaration that farm leases, pearling licences, hatchery licences and permits are not personal property (s.23(2A)).

The Criminal Code (WA) supplies officer liability (s.56) and general principles. Sentencing legislation affects how the mandatory additional penalties operate. The Acts Amendment (Marine Reserves) Act 1997 and State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 substantially reshaped the marine and review provisions.

Transitional savings in Sch. 3 preserved pre-1991 ship, diver and exclusive licences, converting them into deemed authorisations under the new Act. The Aquatic Resources Management Act 2016 (uncommenced) would replace large parts of the current regime if proclaimed.

Information disclosure restrictions (s.62) interact with freedom of information and privacy legislation. Quota transfers must follow regulations made under Sch. 2 item 2, which may require partial surrender.

The most recent substantive amendment was the Directors’ Liability Reform Act 2023 Pt. 3 Div. 45, which inserted s.56 to apply Criminal Code s.39 to listed pearling offences. This reflects a statewide policy to standardise corporate officer liability rather than maintain bespoke provisions.

Earlier, the Personal Property Securities (Consequential Repeals and Amendments) Act 2011 added s.23(2A) to ensure pearling authorisations fall outside the PPSA regime, preserving State control over transfers and avoiding security interest complications.

The Machinery of Government (Miscellaneous Amendments) Act 2006 transferred functions from the Fisheries Department to the CEO of the new Department, updated definitions, and inserted delegation powers (s.62A). Financial Legislation Amendment and Repeal Act 2006 redirected certain fees and updated account references.

The State Administrative Tribunal reforms in 2004 replaced ministerial or local court review with SAT applications (ss.33-34), streamlined decision notification, and added procedural savings. This was part of a general overhaul of administrative review in Western Australia to create a single merits review body.

The Acts Amendment (Marine Reserves) Act 1997 inserted ss.23A, 27A and 27B to prevent pearling authorisations conflicting with the expanding marine protected area estate. These changes responded to growing community and scientific pressure to protect biodiversity while grandfathering existing operations.

The Pearling Amendment Act 1998 refined fee structures, policy guidelines and SAT references. Earlier 1994 and 1995 amendments aligned the Act with native title legislation and adjusted penalties following the Sentencing (Consequential Provisions) Act 1995.

These changes collectively modernise administration, strengthen environmental integration, update review mechanisms, and align with contemporary corporate criminal responsibility principles without altering the Act's fundamental licensing and quota architecture.

The source text contains no reported court challenges. However, the structure invites certain disputes. SAT reviews under s.33 have occurred (though not detailed in the Act itself), particularly around refusal of new farm leases or imposition of stringent quota conditions. The presumption of holder knowledge in s.9(6) for quota penalties has potential to be challenged on natural justice or reverse onus grounds, though the Act treats it as an evidentiary device only "in the absence of proof to the contrary".

The broad inspector powers in s.36, including warrantless arrest (s.36(3)) and vessel detention for up to three days (s.36(1)(l)), could attract judicial scrutiny for proportionality, especially where commercial vessels are held without immediate charge. The automatic cancellation on third s.8 offence within 10 years (s.29) is draconian and has not been tested against administrative law unreasonableness principles.

Marine reserve restrictions have been controversial within the industry. The requirement for CALM Minister concurrence and consistency with management plans (s.23A(2)) has the potential to create inter-departmental tension and delay. The property presumption in s.18 has not been litigated but could clash with native title claims over the seabed.

Evidentiary provisions (s.53) that make allegations of location or possession "conclusive evidence" absent contrary proof shift the burden and could be challenged under the Evidence Act or human rights instruments, although Western Australia has no statutory charter.

No High Court or Supreme Court decisions are referenced in the compilation table or notes. The absence of reported controversy may indicate high compliance or that disputes are resolved through administrative negotiation or SAT conciliation rather than contested hearings. The industry’s economic importance (pearls being a premium export) likely encourages cooperative rather than adversarial approaches.

Most practitioners assume that a hatchery licence automatically authorises sale of all produced oysters; s.12(1) imposes an absolute prohibition unless the CEO gives prior written approval, and the CEO may refuse if it is not in the "better interests of the pearling industry". This discretionary gatekeeping is rarely appreciated until a commercial transaction is blocked.

The interaction between hatchery product and wild quota is another trap: s.11 deems all hatchery oysters bought or obtained during a period to count against the pearling licence quota, even if the hatchery licence has its own production quota. Operators running integrated operations can inadvertently breach quota without taking a single wild oyster.

Quota offence escalations in s.9 are calculated over any rolling 10-year period, not calendar years or licence cycles. A holder who accumulated two minor breaches in 2015-2018 may face permanent quota reduction on a third breach in 2024, even if the licence has changed hands.

The marine reserve provisions contain a subtle "unattached" licence distinction in s.27B(4). A hatchery or pearling licence that relates partly to a farm lease and partly to open waters is deemed two separate licences for renewal purposes; the open-water portion cannot be renewed in a marine park without CALM concurrence. Industry participants frequently discover this only at renewal time.

Section 8(5) contains a harsh deeming rule: if the exact period in which excess quota was taken cannot be proved, the excess is attributed to the period when the contravention was reported to the CEO. An inspector’s report date can therefore crystallise liability for the highest-penalty period.

The property presumption in s.18 operates "unless or until proved to the contrary". In practice this reverses the onus in any dispute between a farm lease holder and a neighbouring operator or traditional owner, a nuance rarely explained in commercial contracts.

Finally, the Act’s definition of "Western Australian waters" is extraordinarily convoluted (s.3(2)), carving out exceptions for Commonwealth-managed recreational fishing and pre-arrangement fisheries. GPS coordinates alone are insufficient; operators must cross-reference zone declarations under s.5 and the prescribed Australian datum (s.4). A single misplaced decimal can move an operation from licensed State waters into an area where the Act does not apply or, worse, into a marine nature reserve.

Compliance begins with a current authorisation suite: farm lease (if culturing on site), pearling and/or hatchery licence, diver, boat and master licences as required. All applications must use CEO-approved forms (s.22) and be accompanied by the first instalment of the annual fee published in the Gazette (s.27(1)).

Maintain a detailed register of every oyster taken, purchased, moved, held or sold, cross-referenced to quota periods. Electronic logbooks should record GPS positions against Minister-declared zones (s.5). Because s.11 aggregates hatchery purchases against wild quota, reconcile hatchery and wild ledgers monthly.

Appoint a nominated responsible officer for corporate holders (s.26(2)(a)) and ensure that officer completes any prescribed training. Conditions imposed under s.26(1) must be kept on board vessels and at the farm; they can be varied by notice at any time.

Implement a "move-to-farm" protocol so that all live product is relocated by 31 December (or CEO-approved alternative date) and remains on the lease unless written CEO approval for removal is obtained. Physical separation of wild and hatchery stock on the farm assists in proving compliance with the s.18 ownership presumption and size limits.

For sales, obtain CEO approval before any hatchery oyster leaves the premises; retain the written approval and reasons for refusal (if any) for audit. Quota transfers under s.32(5) must follow regulations and, where required, involve partial surrender; execute formal deeds and obtain CEO endorsement before any biological transfer occurs.

Engage proactively with the Pearling Industry Advisory Committee and monitor Ministerial policy statements (s.24) and Gazette notices for new zones, size limits or prohibitions. In marine park areas, maintain evidence that operations are consistent with the relevant management plan or that CALM Minister consultation occurred.

Appoint a compliance officer to conduct mock inspections using the s.36 powers checklist. Train masters and divers that interference with inspectors or false statements carry personal liability up to $20,000 (ss.58-59). Retain all records for at least 12 months plus the limitation period for prosecution (s.52(2)).

Budget for annual fees, potential surcharge on instalments, and the Fisheries Research and Development Account levy. If a breach occurs, self-report promptly; the s.8(5) deeming rule makes late discovery far costlier. Where cancellation or refusal is threatened, lodge a SAT application immediately to trigger the stay under s.34.

Finally, maintain a current copy of the Act, all regulations, zone notices, size declarations and policy statements on every vessel and at every shore facility. In an industry where a single container breach can be deemed to exceed quota by a prescribed number of oysters (s.8(4)), meticulous documentation is the only reliable shield.