Shoalwater Bay (Dugong) Plan of Management 1997

Area: The area to which the plan applies is described in the Schedule by a series of geodesic lines and coastline segments, starting at Macdonald Point and running via Swan Island, Townshend Island and Reef Point, then back along the mainland coastline at low water. The boundary is defined by geographical coordinates (AGD66 datum) and is depicted generally on a map in the Schedule. Anyone intending to comply with or enforce the plan must ascertain whether a specific location falls within that boundary, which requires careful mapping.

Net restrictions: Clause 6.2 prohibits having in the area a net that is capable of being used for the taking of fish. This is a strict liability prohibition - the net need not be in use, or even capable of being used at that moment, provided it is capable of being used for fish taking. Clause 6.5 clarifies that a person may be taken to have a net in the area whether or not the net is stowed or secured. There are three exceptions: (a) a research permission; (b) a net that is part of a dilly for use only to catch crabs; and (c) a cast net that is for use only to catch fish for bait, is not more than 6 metres in diameter, and has a mesh size of not more than 28 millimetres. Clause 6.4 further limits possession to no more than one cast net at any time.

Cast net and dilly: Both terms are imported from the Fisheries Regulation 1995 (Qld) as in force at the date of the plan (2 April 1997). This means the definitions are static; subsequent amendments to the Queensland regulation do not automatically update the plan. A cast net is a circular throwing net; a dilly is a type of crab pot or net. The reference to the Queensland regulation creates an interdependence with state law for definitional purposes, which may cause interpretive difficulty if the regulation has since been repealed or amended.

Collecting, taking and interfering: “Collecting” and “taking” have the same meanings as in the zoning plan. “Interfere with” is defined only for clause 8 and does not include collect (whether by traditional hunting and gathering or otherwise). This means clause 8 deals with non‑collection interference such as harassing, injuring or damaging a dugong or its carcass, while collection is separately regulated by clauses 5 and 7.

Traditional hunting and gathering: This term also has the same meaning as in the zoning plan. It is not defined in this plan. Clause 5.2 allows the Authority to grant a relevant permission for traditional hunting and gathering of dugong. This is discretionary - the Authority may grant it, but is not required to. The plan does not create an automatic exemption for Indigenous people; a permission is required, and the Authority can impose conditions.

Ecologically sustainable use: The plan declares under clause 4 that netting of fish must be managed on the basis of ecologically sustainable use. This is a policy statement that reflects the objects of section 39Y(c) of the Act. It does not itself create obligations but informs the exercise of discretion by the Authority in relation to permissions and the development of any future management measures.

Precautionary principle: The recitals to the plan reference the precautionary principle within the meaning of section 3.5.1 of the Intergovernmental Agreement on the Environment. This principle is used to justify the restrictions, but is not incorporated as a binding rule within the plan. It may influence judicial review of Authority decisions under the plan.

The plan directly affects any person who enters or uses the Shoalwater Bay area, whether for commercial, recreational, research or traditional purposes. The primary group affected is fishers who use mesh nets, gill nets or any net capable of taking fish. Commercial net fishers are effectively excluded from the area unless they are crabbing using a dilly or using a single small cast net for bait. Recreational fishers are similarly limited to one cast net for bait fishing, which may be insufficient for those accustomed to line fishing with a net for live bait. Line fishing itself is not prohibited by the plan, but if a fisher wants to bring a net as backup, that net must fall within the exceptions.

Indigenous people seeking to exercise traditional hunting and gathering rights are affected because the plan does not create an automatic exemption. They must obtain a relevant permission from the Authority under clause 5.2. This imposes a transaction cost: a person must apply for permission, wait for a decision, and comply with any conditions. The Authority has discretion to grant or refuse, and the plan does not specify criteria for decision‑making. This contrasts with the zoning plan, which may already permit traditional hunting; the plan layers an additional permission requirement.

Researchers are affected positively: they can obtain permission to collect dugongs (clause 5.1) and to possess nets (clause 6.3(a)). However, they must still apply and satisfy the Authority that the collecting is for research. The term “research” is not defined in the plan, leaving the Authority with broad discretion.

Tour operators and other recreational users who do not use nets are largely unaffected, unless they interfere with dugongs (clause 8) - for example, by feeding, touching or approaching them in a way that might constitute interference. The prohibition on interference extends to carcasses, which affects any activity involving handling dead dugongs, such as for educational or cultural purposes, unless written authority is obtained.

The plan also affects the Authority itself and its staff: they must process applications for permissions and written authorities, enforce the net restrictions, and manage compliance. The compliance burden includes patrolling the area to detect possession of nets, which is complicated by the provision that stowed nets count as possession.

Finally, the plan indirectly affects the Queensland Government because it relies on definitions from the Fisheries Regulation 1995 (Qld). Any inconsistency between the plan and Queensland fisheries laws in the area would have to be resolved under the Commonwealth Act’s supremacy provisions.

The plan imposes three main prohibitions. First, a person must not have in the area a net that is capable of being used for the taking of fish (clause 6.2). This duty is absolute, subject to the three exceptions. The duty extends to any net, regardless of whether it is stowed or secured. Possession of a cast net in excess of 6 metres diameter or mesh larger than 28 mm is prohibited. Possession of more than one cast net is also prohibited. These duties apply even if the person is not fishing; carrying a net on a boat or in a vehicle while in the area is caught.

Second, a person must not collect a dugong in the area except in accordance with a relevant permission (clause 7). “Collect” includes any taking, capturing, or gathering. This duty applies to all persons, including those with traditional hunting rights, unless they have a permission.

Third, a person must not interfere with a dugong or its carcass in the area except in accordance with a written authority from the Authority (clause 8). “Interfere with” is defined broadly to mean any action other than collecting. Examples could include chasing, touching, feeding, or moving a carcass. Importantly, interference with a carcass is covered, so removing a dead dugong for study or burial requires written authority.

The plan also grants certain rights or liberties. A person may possess a net if it is part of a dilly for use only to catch crabs. This right is limited: the net must be part of a dilly (a specific type of gear), and it must be for use only to catch crabs. Using a dilly that can also catch fish could fall outside the exception.

A person may possess a single cast net if it is for use only to catch fish for bait, is not more than 6 metres in diameter, and has a mesh size of not more than 28 mm. This right is narrow: the net can only be used for bait fishing, not for taking fish for consumption or sale. The “for use only” language creates a purpose limitation; using the cast net for anything else would breach the prohibition.

A person may collect dugongs for research if granted a relevant permission by the Authority. The Authority must not grant a permission for collecting dugong unless it is for research (clause 5.1). This imposes a duty on the Authority to refuse non‑research applications. However, the Authority may grant a permission for traditional hunting and gathering of dugong; this is a discretionary power, not a duty.

A person may interfere with a dugong or its carcass if the Authority gives written authority. The plan does not specify the criteria for granting such authority, leaving the Authority with broad discretion.

The plan does not grant any general right to the public. There is no right to fish using other methods; those are not restricted by the plan but are subject to the zoning plan and the Act. The plan operates as a set of prohibitions with narrow exceptions, so the default position is that most activities involving nets or dugongs are prohibited.

The plan itself does not prescribe penalty amounts or imprisonment terms. Instead, it relies on the enforcement provisions of the Great Barrier Reef Marine Park Act 1975. Section 38A of the Act makes it an offence to use or enter a zone for a purpose other than a purpose permitted under the zoning plan. Section 38B makes it an offence to use or enter a zone without a relevant permission where required. Section 38C makes it an offence to contravene a condition of a relevant permission.

The plan’s restrictions on nets and dugongs effectively become conditions or limitations on permitted uses. For example, a person who enters the area for recreational fishing (a permitted use under the zoning plan) but brings a net that does not fall within the exceptions would be using the zone for a purpose not permitted under the plan, and thus potentially in breach of section 38A. Alternatively, if the zoning plan requires a relevant permission for that activity, failing to have one could be a breach of section 38B.

The introductory notes to Part 4 of the plan indicate that regulations may be made under paragraph 66(2)(ba) of the Act to give effect to the enforcement provisions of the plan. This suggests that additional specific offences or penalties could be created by regulation, though none are within the plan itself.

Because the plan is a legislative instrument, breaches can also attract civil penalty provisions under the Act, if applicable. The Authority has enforcement powers including directions, seizure of nets, and prosecution. Since the prohibition on nets is strict (no mental element specified), a person can be liable even if unaware of the plan or the boundary. Good faith is not a defence to the prohibition itself, though it may be relevant to penalty.

The burden of proof for exceptions lies with the defendant: if a person claims a net is a dilly for crabbing, they must prove that on the balance of probabilities. The plan does not create any defence of emergency for net possession; clause 6.1 only excludes the whole clause for persons who use or enter the area solely for saving human life or securing safety of an aircraft or vessel. That exception covers entry, but not necessarily net possession; however, if a person enters for emergency purposes and has a net, they may still be caught if they are not “only” in the area for that purpose.

For interference with dugongs or carcasses, the requirement for a written authority creates an additional enforcement tool. Any person found interfering without an authority can be prosecuted under section 38A or 38B, depending on the circumstances.

Fines under the Act for individuals can be significant; for corporations, higher maximum penalties apply. The exact amounts change over time due to indexation, so reference should be made to the current version of the Act. The practical enforcement challenge is surveillance of a large coastal area; compliance relies on sporadic patrols and reporting.

The plan operates within the hierarchy of the Great Barrier Reef Marine Park Act 1975. It is made under Part VB and must be consistent with the Act and any zoning plan. The zoning plan for the Mackay/Capricorn Section (in force 1 August 1988) is the underlying spatial framework. The plan imposes additional restrictions beyond the zoning plan: for example, even if the zoning plan permits net fishing in a particular zone, the plan prohibits nets in the Shoalwater Bay area unless they fall within the exceptions.

The plan references the Fisheries Regulation 1995 (Qld) for definitions of “cast net” and “dilly”. This creates a dynamic interaction with Queensland fisheries law. However, because the definitions are fixed as at the date of the plan (2 April 1997), any subsequent amendment to the Queensland regulation does not automatically change the plan’s meaning. This can lead to inconsistency if the Queensland regulation has been replaced or renamed. This is a potential trap: a Queensland fisher using a net that meets the current Queensland definition of “cast net” might not satisfy the 1997 definition, or vice versa.

Dugongs are listed as vulnerable under the Queensland Nature Conservation Act 1992, as noted in the background. That state legislation may impose additional requirements, but the Commonwealth plan does not incorporate them. A person who complies with the plan may still need a state permit. Conversely, a state permit does not override the plan’s prohibitions because the Marine Park is Commonwealth managed.

The plan also interacts with the Intergovernmental Agreement on the Environment, which is referenced in the recitals. The precautionary principle from that agreement is noted but is not given binding force in the plan. However, a court could use it to interpret the plan or to review the Authority’s decisions.

The World Heritage values of the Great Barrier Reef Marine Park are also mentioned in the recitals. The plan is intended to protect those values by conserving dugongs. This linkage means that any challenge to the plan could involve international law obligations under the World Heritage Convention, though those do not directly create private rights.

If a person holds a relevant permission under the zoning plan for an activity that conflicts with the plan, the plan would prevail because it is a later and more specific instrument. The Authority must ensure any permission granted is consistent with the plan.

Finally, the plan interacts with any subsequent plans of management. It does not state that it overrides other plans; any inconsistency would be resolved by the Act’s provisions or by later plans.

The Shoalwater Bay (Dugong) Plan of Management 1997 was made by the Great Barrier Reef Marine Park Authority on 20 February 1997. It includes alterations made by the Authority under paragraph 39ZE(3)(a) of the Act, notice of which was published in the Commonwealth of Australia Gazette on 2 April 1997. That date is the commencement date for the plan (except Part 4, which commences on a date declared by regulations under paragraph 66(2)(ba)). The plan appears to have commenced as notified; it does not indicate any subsequent amendments.

The source text provided does not include any amendment history beyond the initial publication. It is possible the plan has been amended or revoked in the years since 1997, but the user’s source does not show that. For a practitioner, the current version should be checked on the Federal Register of Legislation, because this plan may have been superseded or incorporated into a broader management plan.

The plan itself notes that it includes alterations before notification. Those alterations might have been minor corrections; the nature is not specified. No formal amendment instruments are referenced.

Given the plan’s age (over 25 years), it is plausible that the scientific and management context has changed. Dugong population estimates and threats may have evolved. The Authority may have replaced this plan with a new one for the area, or incorporated the restrictions into a zoning plan amendment. However, until formally revoked, the plan remains legally in force for the defined area.

If the plan has not been amended, its static definitions from 1997 (e.g., referring to the Fisheries Regulation 1995 (Qld)) become increasingly problematic as Queensland law changes. The plan does not contain a “sunset” clause or a review date, so it continues indefinitely unless amended or repealed.

The source text does not mention any litigation concerning this plan. No cases are cited in the plan itself. It is possible that the plan has been the subject of judicial review or prosecutions, but the user’s source does not provide that information. In a deep dive, we can note that the absence of litigation history in the source does not mean none exists; it may simply not be recorded in the plan.

Given the substantive restrictions, litigation could arise in several scenarios: a commercial fisher challenges the validity of the plan or the prohibition on nets on the grounds that it exceeds the Authority’s power under the Act; a traditional hunter challenges the requirement for permission as contrary to native title rights; or a researcher challenges a refusal of permission. Any such cases would be decided by the Federal Court of Australia.

The plan’s reliance on the precautionary principle and the Authority’s consideration of world heritage values could be grounds for judicial review if procedural fairness or reasonableness is at issue. However, the Authority has broad discretion under the Act, so challenges face a high bar.

Without access to case law databases, we cannot confirm whether litigation exists. The plan itself provides no cases.

Several provisions of the plan contain traps for the unwary. First, the prohibition on nets applies to any net “capable of being used for the taking of fish”. This includes nets that are broken, stored, or intended for non‑fishing use, as long as they could be used to take fish. A person who brings a spare net on a boat for emergencies is caught. The only exceptions are precisely defined.

Second, clause 6.5 states that a person may be taken to have a net in the area whether or not it is stowed or secured. This eliminates any argument that a net stored in a locker or under a cover is not “in” the area. Possession is determined by having it within the geographic boundary.

Third, the exception for cast nets is narrow: the net must be “for use only to catch fish for bait”. Using a cast net to catch fish for consumption, or catching more than needed for bait, could violate the prohibition. The plan does not define “bait”, which can lead to disputes. Also, the net must not exceed 6 metres in diameter and have mesh not more than 28 mm. These dimensions are specific; a slightly larger net (e.g., 6.2 metres) is prohibited.

Fourth, only one cast net is allowed at any time. Possessing two or more cast nets, even if one is a spare, is an offence. This limits the ability to have backup gear.

Fifth, the exception for a dilly is for use only to catch crabs. If a dilly is designed to catch both crabs and fish, or if it is used for fish, the exception is lost. The term “dilly” is defined by reference to the 1995 Queensland regulation, which may have specified dimensions or construction. A person using a crab net that does not meet that definition is not protected.

Sixth, the plan does not exempt Indigenous persons from the net prohibition. Traditional hunting and gathering is only mentioned in relation to collecting dugongs. A traditional fisher who wants to use a net for fishing would need to fall within the general exceptions (research permission, dilly, cast net). There is no separate traditional right to use nets.

Seventh, interfering with a dugong carcass (e.g., moving it for burial, taking a sample) requires written authority from the Authority. Even well‑intentioned actions (e.g., reporting a stranding) could technically be interference if they involve touching or removing the carcass. The written authority requirement creates a bureaucratic hurdle.

Eighth, the plan’s boundary is defined by coordinates and coastline features. Some of these references (e.g., “low water”, “high water”) are subject to tidal variation and changes in coastline over time. The map is only “generally” indicative. A person could be uncertain whether a location is inside the area, especially near the high water mark on Swan Island. This creates compliance risk.

Ninth, the plan’s definitions are locked to 1997. If the Queensland Fisheries Regulation 1995 has been repealed, the definitions of “cast net” and “dilly” may be unclear. A court might need to interpret the plan by reference to extrinsic materials, increasing uncertainty.

Tenth, the plan does not include a grandfather clause for existing net fishers. Anyone who previously used nets in the area must cease immediately upon the plan’s commencement, with no transition period. This is a significant regulatory cost for fishers invested in the area.

To comply with the Shoalwater Bay (Dugong) Plan of Management 1997, a person who intends to enter the defined area must take the following steps.

First, ascertain whether the planned activity involves possessing a net. Any net capable of taking fish is prohibited unless it falls within one of the three exceptions. If the net is a cast net, ensure it is the only cast net on board or in possession, its diameter does not exceed 6 metres, its mesh size does not exceed 28 mm, and it will be used only to catch fish for bait. The person should be prepared to demonstrate measurement and purpose to an enforcement officer. If the net is part of a dilly, confirm that the dilly meets the definition in the Fisheries Regulation 1995 (Qld) and is used only for crabbing. If the net is for research, obtain a relevant permission from the Authority before entering the area. No other nets may be present.

Second, if the activity involves dugongs, do not collect a dugong unless a relevant permission has been granted. For research, apply to the Authority for permission under clause 5.1. For traditional hunting and gathering, apply for permission under clause 5.2; the Authority may grant it but is not obliged to. Do not rely on any other entitlement, such as native title or state permits, as these do not override the plan.

Third, avoid interfering with dugongs or their carcasses. Interference includes any action other than collection, such as touching, feeding, chasing, or removing a carcass. If an activity might involve such interference, seek written authority from the Authority before proceeding.

Fourth, understand the boundary of the area. Obtain accurate coordinates (AGD66 datum) for the points in the Schedule and plot them on a chart. Be aware of the high and low water marks along the mainland and islands, as the boundary follows these. Consider that the low water mark may shift over time.

Fifth, maintain records: keep copies of any relevant permissions or written authorities. For cast nets, keep documentation showing the diameter and mesh size (e.g., manufacturer’s specifications). Be prepared to explain the purpose (bait only) if questioned.

Sixth, if a net is found on board that does not meet the exceptions, the best compliance strategy is to not bring it into the area. Securing or stowing is not a defence. The only safe approach is to leave prohibited nets outside the boundary.

Seventh, monitor the Federal Register of Legislation for any amendments, replacement plans, or revocation. The plan may have been updated since 1997; a current search is essential.

Eighth, for businesses, consider the economic impact: compliance means no mesh netting. Evaluate whether alternative fishing methods (line fishing, crabbing with dillies) are viable within the area. If not, avoid the area altogether.

Ninth, if traditional hunting and gathering of dugong is sought, engage early with the Authority. The process for obtaining a permission is not detailed in the plan, so contacting the Authority’s permits office is necessary to understand requirements and timelines.

Tenth, if a stranding or injured dugong is encountered, do not interfere without authority. Contact the Authority or the relevant state marine wildlife authority. They may provide a written authority or direct an officer to handle the situation. Acting without authority could lead to enforcement action, even if the intent was to help.