SPANISH MACKEREL FISHERY MANAGEMENT PLAN 2004

The Plan defines several key concepts that structure its operation. Spanish mackerel means fish of the species Scomberomorus commerson (cl 4). The fishery to which the Plan applies is the Spanish mackerel fishery declared under s 22 of the Act by notice in Gazette G28 dated 17 July 1991 (cl 3). Allowable catch is defined by cl 6(1) as 450 tonnes greenweight per year. That figure is stated as a single number; the Plan does not tie it to any stock assessment or biomass estimate. The licence is a central concept: there are two types. A restricted licence is a Spanish Mackerel Fishery licence granted to a person because they held a pelagic licence endorsed for trolling in 1992 (cl 8(1)). The holder may take fish and may transfer the licence, but a person to whom the licence is transferred on or after 1 July 1994 may not take fish under that licence, though they may transfer it again (cl 8(3)). So restricted licences lose their fishing entitlement upon any transfer after that date and become purely tradable shells. An unrestricted licence is created by the surrender of two restricted licences to the Territory (cl 9(1) and (2)). The holder of an unrestricted licence may take fish and may transfer it (cl 9(3)). There is no restriction on transfer for unrestricted licences. Licensee includes not only the holder of a licence but also a person assisting the licensee conduct operations for the purposes of the licence (cl 4). That extension captures deckhands, crew and other assistants, making them personally liable for breaches. A dory is a vessel used in conjunction with the mother boat for trolling under a licence (cl 4). Floating handline means a line with only one hook or one set of joined hooks attached (cl 4). Troll line similarly means a line with only one hook, one set of joined hooks attached to one piece of bait, or one lure to which hooks may be attached (cl 4). A Spanish mackerel restricted bait net is a net with pocket and net mesh no larger than 65 mm, a drop of not more than 5 m, and a length (excluding haul lines) not longer than 100 m or, if used as a surrounding net from a vessel, 200 m (cl 4). Release means return to the water as soon as practicable after taking (cl 4). The Plan also introduces the concept of a review of management triggered by various numeric thresholds under cl 7, which the Director must conduct if certain catch levels are reached or falls occur. These concepts together define the regulatory architecture: a fixed cap on participants, a fixed total allowable catch, prescribed gear, transferred fishing rights that erode over time, and mandatory triggers for government review.

The Plan directly affects several groups. The most immediate are the holders of Spanish mackerel commercial fishing licences outstanding when the Plan commenced, and any subsequent transferees. Because the Plan caps the number of licences at the pre 2005 number and reduces that cap upon surrender, cancellation or non renewal (cl 10), existing licence holders are given a legally protected, scarce entitlement. New entrants cannot obtain a licence except by purchasing an existing one; even then, a restricted licence transferred after 1 July 1994 confers no fishing right, so a buyer of such a licence acquires only a tradeable shell that may be sold again or surrendered to create an unrestricted licence (by combining with another restricted licence). The practical effect is to restrict participation to those who held a pelagic trolling endorsement in 1992 or bought a licence before the transfer restriction cut off. Commercial fishing operators fishing for other species who incidentally take Spanish mackerel are also captured: the Plan’s objects state it controls taking whether as principal catch or incidental, and whether or not the fish is released (cl 5(a)). Amateur fishers are affected by the possession limit of two Spanish mackerel (cl 16). That limit applies to any person carrying out amateur fishing, regardless of method, and regardless of where the fish are held, unless at the person’s permanent residence. This means a recreational fisher who catches and releases still may possess no more than two at any point, even at a camp or holiday house that is not a permanent residence. The Plan also mentions “Fishing Tour Operator licensees” in its objects and in the review triggers (cl 5(a) and (c); cl 7(1)(c)). Those operators are not further defined in the Plan; they would be licensed under other provisions of the Fisheries Act. Their catch counts towards the trigger for management review if it falls 20% from the previous year. Aborigines are also mentioned in the objects (cl 5(c)) and in the review triggers (cl 7(1)(c)). The Plan does not create special access or exemptions for Aboriginal fishers; rather, a drop of 20% in their catch can trigger a review of management. The Director of Fisheries must conduct reviews in the circumstances specified in cl 7, and the Minister is empowered to allocate the allowable catch to stated persons (cl 6(2)), giving the Minister direct distributive power over the catch among commercial, tour operator, and possibly other groups. The Territory itself is affected through the reduction in the licence pool: each surrendered, cancelled or expired licence permanently reduces the total number in force, which reduces the potential future licensing revenue and the administrative base. The compliance burden falls most heavily on commercial operators who must ensure gear and vessel specifications are met, maintain returns, and avoid prohibited species. Any person assisting a licensee is also exposed to penalties, broadening the range of individuals who can be fined.

Commercial licensees have the right to take fish in accordance with their licence (cl 8(2)(a) for restricted, cl 9(3)(a) for unrestricted) and the right to transfer the licence (cl 8(2)(b) and cl 9(3)(b)), subject to the transfer restrictions on restricted licences. A person who surrenders two restricted licences is entitled to receive one unrestricted licence (cl 9(2)). A licensee or a person who acquires a restricted licence after 1 July 1994 has no right to fish under that licence, but retains the right to transfer it (cl 8(3)). The Plan imposes a series of clear duties and prohibitions on commercial operators. A licensee must not take or possess barramundi, mud crab, shark or threadfin salmon (cl 12). The duty is absolute: there is no allowance for incidental catch or for size or sex. The operator must use no gear other than troll lines, floating handlines or rods to take fish (cl 13). To take bait, the operator may only use a Spanish mackerel restricted bait net and must comply with the detailed restrictions in cl 14: haul only by hand, do not stake or fix the net at more than one end, do not use the net in water less than 30 cm deep when clearing the catch, do not use the net in the Mary River Fish Management Zone, and use bait taken only for bait under the operator’s own licence. Dories operated under a licence must not exceed 6.5 m in length, may not operate independently from the mother boat for more than six hours, and the licensee may not operate more than two dories (cl 15). The right to use a dory is thus limited in time, size and number. Amateur fishers have the right to possess up to two Spanish mackerel (cl 16(1)), and the right to possess more than two if the fish are at their permanent residence (cl 16(2)(b)). They also have an exception for fish taken under a commercial licence (cl 16(2)(a)). But that exception is narrow: it applies only to fish “taken under a licence”, not to fish taken by a person who happens to hold a commercial licence while amateur fishing. The Director has duties to conduct management reviews if any of the six triggers in cl 7(1) are met. The Minister has the power to allocate the allowable catch to stated persons by Gazette notice (cl 6(2)), which creates a potential right for those persons to catch that allocation, but the Plan does not create an entitlement to receive an allocation; it is purely discretionary. The Plan does not grant a right to compensation if the Minister reduces an allocation or fails to allocate. The overall pattern is one of tightly circumscribed rights combined with prescriptive duties that leave little room for operational innovation.

The Plan sets maximum penalties for each offence. For taking or possessing prohibited species (barramundi, mud crab, shark, threadfin salmon), the maximum penalty is $5,000 (cl 12). For using fishing gear other than troll lines, floating handlines or rods to take fish, the maximum penalty is $10,000 (cl 13). For using a bait net that does not comply with the Spanish mackerel restricted bait net definition or for breaching the detailed net usage restrictions in cl 14(2), the maximum penalty is $5,000 (cl 14). Each of the three dory offences (vessel over 6.5 m, operation independent for more than six hours, operating more than two dories) carries a maximum penalty of $10,000 (cl 15). For amateur possession, the penalty structure is graduated: possession of three Spanish mackerel carries a penalty of $5,500 (cl 16(1)). Possession of four or more Spanish mackerel carries a penalty of $10,000 plus $1,000 for each Spanish mackerel in excess of four (cl 16(1)). So possessing exactly four fish attracts $10,000; possessing five fish attracts $11,000; possessing six fish attracts $12,000; and so on. This stepped structure imposes a steep jump from three fish ($5,500) to four fish ($10,000), and then a linear increase thereafter. The penalty maximums appear to have been increased by the Spanish Mackerel Fishery Management Plan Amendment 2009 (SL No. 41, 2009), which amended clauses 12 through 16. The 2004 original penalties are not stated in the source, but the Endnote indicates that cl 12-15 and cl 16 were amended by the 2009 instrument. The Plan does not specify the enforcement body, but the Director under the Fisheries Act would typically have inspections, seizure and prosecution powers. The Plan’s definition of “licensee” includes a person assisting a licensee (cl 4), so crew and deckhands can be individually prosecuted for breaches. The amateur possession limit applies to “possession”, not just to fish on the water, so enforcement could occur at boat ramps, in vehicles, at temporary accommodation, or even at home if it is not a permanent residence. The only safe harbour is the person’s permanent residence (cl 16(2)(b)). That defence would require the enforcer to accept evidence that the location is a permanent residence, creating potential disputes. The Plan does not create any demerit point or licence suspension provisions; those would be in the principal Act. However, because the licence cap shrinks with each surrender or cancellation, a single cancellation of a licence reduces the total pool permanently, making the penalty potentially industry wide as well as individual. The escalating amateur penalty for four or more fish suggests a policy of deterring even modest over bag possession, but the steep jump may also catch a person who inherits or receives fish as a gift and cannot prove they were taken under a licence.

The Plan is a statutory instrument under the Northern Territory Fisheries Act 1988 (the Act). The Act would contain the general framework for enforcement, appeals, licence applications, returns and record keeping, and definitions of terms such as “take”, “fish”, “amateur fishing” and “commercial fishing”. The Plan does not reproduce those provisions; they apply automatically. The Act also likely provides powers of inspection, seizure and prosecution that are not detailed in the Plan. The Plan mentions the Barramundi Fishery Management Plan 1998 in cl 14(2)(d), which prohibits use of the Spanish mackerel restricted bait net in the Mary River Fish Management Zone as defined in that Plan. That creates a cross reference: an operator licensed under the Spanish mackerel Plan who wishes to use a bait net must check the Barramundi Plan’s definition of the zone and comply with both instruments. The Plan also directly prohibits taking of barramundi and other species (cl 12), so a Spanish mackerel licensee who accidentally catches barramundi must not retain it, even if the barramundi is taken in a jurisdiction where barramundi fishing is otherwise lawful. That creates a conflict for the operator: if the operator holds a separate barramundi licence, they still cannot retain barramundi taken while fishing for Spanish mackerel under this Plan. The Plan does not provide any exemption for authorised barramundi fishing. The Plan’s objects refer to “Fishing Tour Operator licensees” (cl 5(a) and (c)). Those operators are licensed under separate provisions of the Act or other plans; this Plan does not regulate them directly, but their catch counts toward management review triggers and the Plan’s possession limits apply to them if they take fish for charter clients. The Plan does not interact with Commonwealth fisheries legislation (e.g. the Fisheries Management Act 1991 (Cth)), as the fishery is entirely within Northern Territory waters and the Spanish mackerel stock is not managed by a joint authority or a Commonwealth plan. However, the allowable catch of 450 tonnes may be relevant to any broader cross jurisdictional stock assessment that includes Queensland or Western Australian catches, but the Plan does not address that. The Interpretation Legislation Amendment Act 2018 (NT) made general formal amendments to the Plan (e.g. to cl 1 and 14, see Endnotes), but those are purely formal. The Plan’s repeal of the 1993 management plan (cl 17) means that licences and permits previously issued under that plan would need to be transitioned; the 2004 Plan’s licensing provisions (cl 8-10) are the replacement regime. The Plan does not address transitional licensing arrangements in detail; the direction is that the new licence categories apply from 1 January 2005.

The Spanish Mackerel Fishery Management Plan 2004 was notified as SL No. 44 of 2004 and commenced on 1 January 2005. The source document is the reprint as in force at 1 January 2010, which incorporates one specific amendment: the Spanish Mackerel Fishery Management Plan Amendment 2009 (SL No. 41 of 2009), notified on 21 December 2009 and commencing on 1 January 2010. The Endnotes indicate that cl 12 through 15 were amended by the 2009 amendment (cl 5 of that instrument), and cl 16 was amended by r 4 of that instrument. The 2009 amendment increased the maximum penalties that had been in the original 2004 Plan. The original penalty amounts are not provided in the source, but the amendment is recorded as “amd No. 41, 2009”. Given the date, the 2009 amendment likely reflected a decision to strengthen deterrence after five years of operation under the 2004 Plan. The 2009 amendment also introduced the graduated penalty structure for amateur possession that now appears in cl 16: the original 2004 version may have had a flat penalty for possession of more than two. The Plan was also subject to general amendments of a formal nature by the Interpretation Legislation Amendment Act 2018 (NT) (Act No. 22 of 2018), which is noted in the Endnotes and which amended clauses 1 and 14. However, that Act post dates the 1 January 2010 reprint and is not part of the reprint’s text. The Plan has not been repealed or replaced as of the reprint date. The original 1993 Spanish Mackerel Fishery Management Plan was repealed by cl 17 of this Plan. The 1993 plan had been in operation for about 12 years before being superseded. The 2004 Plan broadly continued the same structure of cap on licences, catch limit and gear restrictions, but introduced the new licence categories (restricted and unrestricted) and the mechanism for reducing the licence cap upon surrender or cancellation. The 2009 amendment suggests that penalty levels were seen as inadequate in the original regime. No other amendments appear in the record up to 1 January 2010. Given the Plan’s structure, any future amendment would likely require a formal notice under the Fisheries Act, potentially with consultation, but the Plan does not specify any amendment procedure. The Minister can also modify the allowable catch by notice in the Gazette (cl 6(2) and (3)), which is a form of subordinate amendment without amending the Plan itself.

The source text of the Plan does not reference any litigation, does not cite any court cases, and does not contain any provisions for dispute resolution, appeals, or judicial review. That is not surprising: the Plan is a statutory instrument that creates offences and allocations, but does not itself record litigation history. Any legal challenges to decisions made under the Plan, such as the Minister’s allocation of allowable catch, the Director’s review findings, or prosecutions for offences, would be heard under the general law and the Fisheries Act. The Act would likely provide rights of appeal to the Local Court or the Northern Territory Civil and Administrative Tribunal against licensing decisions. The Plan does not create a private right of action for a person aggrieved by an allocation or by the cap on licences. Because the Plan reduces the total number of licences upon surrender or cancellation (cl 10), a person who loses a licence through cancellation or non renewal cannot obtain a new licence; the cap shrinks permanently. That could give rise to a challenge on the basis of legitimate expectation or property rights, but no such challenge is recorded in the Plan. The transfer restriction on restricted licences (cl 8(3)) effectively extinguishes the fishing entitlement for any transferee after 1 July 1994. That could be challenged as an acquisition of property without compensation, but the Plan does not note any such challenge. The Plan’s prohibition on taking certain species (cl 12) and its gear restrictions (cl 13-15) are prescriptive; any prosecution would need to prove the elements of the offence, but the Plan does not contain any reversal of the burden of proof or strict liability statements. The amateur possession limit in cl 16 is absolute, with a limited defence of permanent residence; litigation could arise over what constitutes a permanent residence. The escalating penalty for possession of four or more fish is unusual and could be challenged as manifestly excessive if a court considers it in a specific case, but the Plan does not refer to any such challenge. In summary, the Plan itself contains no litigation history. That absence suggests that either the Plan has not been heavily litigated, or that any litigation has not been recorded in the Plan’s text. Given the Plan’s restrictive nature, the potential for litigation over ministerial allocations, licence transferability, and the cap on licences is real but not documented in the source.

Several provisions in the Plan contain traps for the unwary. First, the definition of “licensee” includes a person assisting a licensee (cl 4). That means a deckhand or crew member can be personally penalised for breaches such as using unauthorised gear, possessing prohibited species, or exceeding dory time limits, even if the master of the vessel is the licence holder. The Plan does not limit liability to the licence holder. Second, the amateur possession limit applies to “possession” without specifying that it applies only to fish caught in the fishery. If a person receives Spanish mackerel as a gift or purchases it from a commercial fisher, and that fish is not at the person’s permanent residence, the person may be in possession of more than two fish and liable to the stepped penalty. The only defence is that the fish were taken under a licence (cl 16(2)(a)), but that defence requires the amateur to prove the provenance of the fish, which may be difficult. Third, the amateur penalty structure has a sharp discontinuity. Possession of three fish is a flat $5,500. Possession of four fish is $10,000, an increase of $4,500 for one additional fish. That is a larger step than the $1,000 per extra fish for five or more. There is no transitional penalty for between three and four; it jumps directly. Fourth, the bait net restrictions include a prohibition on using the net in the Mary River Fish Management Zone (cl 14(2)(d)). That zone is defined by reference to the Barramundi Fishery Management Plan 1998, which may have been amended or replaced. The Plan does not provide a definition; the operator must locate the current version of that zone. Fifth, the dory independent operation time limit of six hours (cl 15(2)) is a hard cap. If a dory exceeds six hours even by a few minutes due to weather or mechanical failure, the licensee faces a $10,000 penalty. There is no exception for emergency or force majeure. Sixth, a person who acquires a restricted licence after 1 July 1994 cannot take fish under it (cl 8(3)). That means the licence is essentially a non fishing permit that can only be traded or surrendered. A buyer who does not check the transfer date could purchase a licence with no fishing entitlement. Seventh, the Plan does not provide any right to an allocation of the allowable catch. The Minister may allocate it to stated persons (cl 6(2)), but there is no obligation to allocate to all licence holders, nor any criteria for allocation. A licensee could hold a licence but receive no catch allocation for a year, yet still be bound by the licence fees and reporting requirements under the Act. Eighth, the review triggers in cl 7(1) are asymmetric. A review is required if catch is at least 90% of allowable catch, but not if catch is markedly lower than 90% but still high relative to stock health. A review is also required if catch drops 30% from the previous year. That means a single year of exceptionally high catch could trigger a review the next year if there is a 30% drop even to a level still above the allowable catch? The wording is ambiguous. Ninth, the Plan does not contain any provision for catch reporting; it relies on the Act for returns. If returns are not provided, the Director may use records and information to decide the amount taken (cl 7(2)), which could be based on estimates that are not contestable by the licensee.

A commercial licensee must first ensure that the licence held is of the correct type. If the licence is a restricted licence and was transferred to the holder on or after 1 July 1994, the holder cannot fish at all; the only compliance option is to not take any fish and either transfer the licence or surrender it. If the licence is unrestricted or a restricted licence held continuously since before that date with no post 1994 transfer, the holder may take fish only in accordance with the Plan. The operator must use only troll lines, floating handlines or rods to take fish (cl 13). No other gear may be deployed, including any net other than the bait net, pots, traps, or longlines. All gear on board should be limited to those types to avoid any suggestion of possession of prohibited gear. When taking bait, only a Spanish mackerel restricted bait net may be used, and it must comply with the mesh size (65 mm maximum), drop (5 m maximum) and length (100 m if not surrounding net, 200 m if surrounding net) (cl 4). The net must be hauled by hand, not staked at more than one end, and must not be used in less than 30 cm of water while clearing the catch (cl 14(2)(a)-(c)). The net must not be used in the Mary River Fish Management Zone, as defined in the Barramundi Fishery Management Plan 1998 (cl 14(2)(d)). Bait taken must only be used for the operator’s own licence (cl 14(2)(e)). The operator must not take or possess barramundi, mud crab, shark or threadfin salmon (cl 12). If any of these are caught incidentally, the operator must release them immediately and ensure no possession. The operator should maintain a log of any incidental catch to demonstrate compliance. Dories used must not exceed 6.5 m overall length, may not operate independently from the mother boat for more than six hours in any session, and no more than two dories may be deployed under one licence (cl 15). The operator should monitor time and distance carefully. All returns and records required under the Fisheries Act must be submitted accurately and on time, because the Director uses those records to decide the amount taken for review triggers (cl 7(2)). For amateur fishers, compliance means never possessing more than two Spanish mackerel away from the person’s permanent residence (cl 16). If staying temporarily at a holiday home, caravan or camp, the limit applies. If the amateur catches fish, they should be consumed or given away promptly, or stored at the permanent residence. The amateur must not rely on the defence of “taken under a licence” unless they actually hold a commercial licence and the fish were taken by that licensed activity. An amateur who also holds a commercial licence should keep fish from each activity separate and be able to prove provenance. If a friend or family member has a commercial licence and gives fish, the amateur should keep a written record of the transaction to rely on the exemption in cl 16(2)(a). For tour operators, compliance requires ensuring each client does not possess more than two fish at any point, and that the operator’s total catch does not trigger a management review. All persons should note that the Plan’s penalties are high and that the definition of possession is broad. The safest approach for commercial operators is to adopt an internal compliance system: pre trip gear inspections, written checklists for dory limits and bait net conditions, and training for all crew so they understand they are also personally liable.