Wildlife (Marine Mammals) Regulations 2019 (Victoria)

Mechanically, the Wildlife (Marine Mammals) Regulations 2019 (the Regulations) prescribe a detailed operational regime for interactions with whales and seals in Victorian waters. They do four things in statutory form: (1) set minimum approach distances and behavioural restrictions for aircraft, vessels, persons and dogs in the vicinity of marine mammals (Parts 2 and 4, notably regs 7-15 and 20-26); (2) create a mechanism for declaring protected areas , whale sanctuary zones and seal breeding colonies , by Secretary determination (regs 16-17) and a fixed seasonal exclusion zone for Logan’s Beach (reg 19 and Schedule 1); (3) prescribe conditions for commercial tour permits (whale watching by aircraft and vessel, whale swim tours, seal tours) and record-keeping obligations for permit-holders (Parts 5 and 6, regs 27-34); and (4) set fees for those permits (reg 32) and penalties for non-compliance (scattered penalties, typically 20 penalty units, e.g. regs 12-14, 18(4)-(5), 20-26, 33).

The Regulations were made under ss 85A and 87 of the Wildlife Act 1975 (reg 2), came into operation on 23 November 2019 (reg 3) and revoke the 2009 regulations (reg 4). Their stated objectives are to provide for the long‑term protection of marine mammals by prescribing minimum approach distances, prohibiting or regulating activities in their vicinity, prescribing permit conditions for whale‑watching, whale‑swim and seal tours and prescribing permit fees (reg 1). Those objectives are the official policy claim; the Regulations implement that claim by creating prescriptive, operational constraints and administrative requirements rather than broad principles.

Incentive and cost structure created by the instrument is concrete. Commercial operators face permit fees (reg 32), recurring reporting and inspection risk (monthly returns in reg 33, and electronic submission powers in reg 34), and prescriptive on‑water and in‑water controls (Part 5). The public and recreational users face criminal offences for proximity, touching, feeding, making loud noise, contravening dog rules and entering declared zones (e.g. regs 12-15, 22-26, 18(1), 19(1)). Decision‑making powers are concentrated in the Secretary (determinations under regs 16-17, electronic form requirements under reg 34) and, for one exception, the Minister (temporary suspension of Logan’s Beach exclusion under reg 19(3)). Enforcement roles and exceptions also rely on other statutory actors specified in the Regulations: authorised officers, POCTA inspectors, port managers, Victoria Police and Surf Life Saving Victoria are all referenced where activities might be permitted or excepted (see, for example, regs 7(2), 11, 15, 16(6), 20(5)).

Version No. 002

Wildlife (Marine Mammals) Regulations 2019

S.R. No. 109/2019

Version incorporating amendments as at
20 September 2022

TABLE OF PROVISIONS

Regulation Page

Part 1—Preliminary 1

Division 1—General 1

1 Objectives 1

2 Authorising provisions 1

3 Commencement 1

4 Revocation 2

5 Definitions 2

Division 2—Application of Regulations 6

6 Exemptions 6

Part 2—Minimum distances from marine mammals 7

Division 1—Minimum distances for whales 7

7 Prescribed minimum distance from whales for regulated aircraft 7

8 Prescribed minimum distance from whales for prohibited vessels 7

9 Prescribed minimum distances from non-dolphin whales and dolphins for allowable vessels 8

10 Prescribed minimum distances from non-dolphin whales and dolphins for swimming 8

11 Prescribed minimum distance for a stranded or entangled whale 9

Division 2—Minimum distances for seals 10

12 Minimum distances from seals for prohibited vessels 10

13 Minimum distances from seals for allowable vessels 10

14 Minimum distances from seals for persons 11

15 Exceptions to offences 12

Part 3—Protected areas 14

16 Whale sanctuary zones 14

17 Seal breeding colonies 14

18 Offence to enter or approach a seal breeding colony 15

19 Offence to enter Logan's Beach Exclusion Zone 17

Part 4—General restrictions on activities relating to marine mammals 18

20 Restrictions on operation of regulated aircraft in the vicinity of marine mammals 18

21 Restrictions on operation of vessels in the vicinity of marine mammals 19

22 Entering the water in the vicinity of whales 22

23 Feeding marine mammals 23

24 Touching marine mammals 23

25 Noise in the vicinity of marine mammals 24

26 Dogs in the vicinity of marine mammals 25

Part 5—Conditions of permits 27

27 Prescribed conditions of whale watching tour permits (aircraft) 27

28 Prescribed conditions of whale watching tour permits (tour vessel) and whale swim tour permits 28

29 Additional prescribed conditions of whale swim tour permits 31

30 Offence to conduct seal tour—prescribed person 34

31 Prescribed conditions of seal tour permits 34

Part 6—Fees and record keeping 37

32 Prescribed fees for tour permits 37

33 Monthly returns 38

34 Electronic recording of information 40

Schedule 1—Logan's Beach Exclusion Zone 42

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Endnotes 43

1 General information 43

2 Table of Amendments 45

3 Explanatory details 46

Version No. 002

Wildlife (Marine Mammals) Regulations 2019

S.R. No. 109/2019

Version incorporating amendments as at
20 September 2022

Part 1—Preliminary

Division 1—General

1 Objectives

The objectives of these Regulations are—

(a) to provide for the long-term protection of marine mammals by—

(i) prescribing minimum approach distances for whales and seals; and

(ii) prohibiting or regulating activities in the vicinity of whales and seals; and

(iii) prescribing conditions for whale watching tour permits, whale swim tour permits and seal tour permits; and

(b) to prescribe the fees payable for the issue of whale watching tour permits, whale swim tour permits and seal tour permits.

2 Authorising provisions

These Regulations are made under sections 85A and 87 of the Wildlife Act 1975.

3 Commencement

These Regulations come into operation on 23 November 2019.

4 Revocation

The Wildlife (Marine Mammals) Regulations 2009[1] are revoked.

5 Definitions

In these Regulations—

Reg. 5 def. of agreed activity inserted by S.R. No. 87/2022 reg. 3.

agreed activity has the same meaning as in section 79 of the Traditional Owner Settlement Act 2010;

allowable vessel means a vessel that is not a prohibited vessel;

calf means—

(a) a whale that is not more than half the average length of an adult female whale of the same species; or

(b) a whale with visible foetal folds; or

caution zone, for a marine mammal, means an area around the mammal with a radius of the following—

(a) for a dolphin, 150 metres;

(b) for a non-dolphin whale, 300 metres;

dolphin means any wildlife that is a member of the family Delphinidae of the sub-order Odontoceti of the Order Cetacea, excluding Orcinus orca and members of the sub-family Globicephalinae (small toothed whales);

Note

The meaning of whale under the Act includes a dolphin so any reference to whale in these Regulations includes a dolphin.

haul out means any site or structure on which 5 or more seals are consistently present to rest or socialise that is not—

(a) a seal breeding colony; or

(b) water infrastructure;

Logan's Beach Exclusion Zone means the area shown hatched on the plan in Schedule 1;

marine mammal means a whale or a seal;

mermaid line means a line with floats attached that is connected to a tour vessel;

narrow waterway means any part of a waterway that is less than 300 metres in width;

Examples

Narrow waterways include—

(a) rivers and river mouths; and

(b) confined bays and inlets; and

that are less than 300 metres in width.

non-dolphin whale means a whale that is not a dolphin;

operate, in relation to a vessel, includes—

(a) determining or exercising control over the course or direction of a vessel or over the means of propulsion of a vessel (whether or not the vessel is underway); and

(b) piloting a vessel;

permit holder's website means, in relation to a whale watching tour permit, a whale swim tour permit or a seal tour permit, a website operated or controlled by the permit holder that contains information about the business operated by the permit holder under the permit;

POCTA inspector has the same meaning as in the Prevention of Cruelty to Animals Act 1986;

port manager has the same meaning as in the Port Management Act 1995;

prohibited vessel means a vessel that is a personal motorised water craft, a parasail, a hovercraft, a wing-in-ground effect craft, a tethered underwater mobile device or a motorised diving aid, and includes a remotely-operated water craft;

Examples

Jet skis, motorised underwater scooters and remote‑controlled speed boats.

regulated aircraft means an aircraft or a remotely piloted device;

Note

Under the Act the definition of aircraft is limited to any machine or equipment designed to be flown by a person.

remotely piloted device means any machine or equipment capable of flying that is not under the direct physical control of a person when being flown;

seal breeding colony means an area determined by the Secretary under regulation 17(1);

seal pup means a seal that is not more than half the average length of an adult female of the same species;

Surf Life Saving Victoria means Surf Life Saving Victoria ACN 004 704 652;

swimming includes snorkelling, diving and the use of surfboards and small personal buoyant devices less than 2 metres in length that are not vessels;

the Act means the Wildlife Act 1975;

tour operator exclusion zone means an area specified under regulation 17(2)(b);

tour supervisor means a person appointed by the holder of a whale watching tour permit, a whale swim tour permit or a seal tour permit to supervise persons participating in a tour conducted under the permit;

tour vessel, in relation to a whale watching tour permit, a whale swim tour permit or a seal tour permit, means the vessel specified in the permit;

Reg. 5 def. of traditional owner group inserted by S.R. No. 87/2022 reg. 3.

traditional owner group has the same meaning as in the Traditional Owner Settlement Act 2010;

Reg. 5 def. of traditional owner group agreement inserted by S.R. No. 87/2022 reg. 3.

traditional owner group agreement means an agreement under Part 6 of the Traditional Owner Settlement Act 2010;

Victoria Police has the same meaning as in the Victoria Police Act 2013;

Victorian Fisheries Authority has the same meaning as Authority has in the Victorian Fisheries Authority Act 2016;

water infrastructure means a structure—

(a) any part of which is connected or attached to land above the low water mark; and

(b) which is designed for or used by persons, vessels or other vehicles to access or enter the water;

Examples

Boat ramp, jetty, platform and pier.

whale sanctuary zone means an area determined by the Secretary under regulation 16(1);

whale swim means any part of a whale swim tour that involves persons being in water to observe or swim with whales.

Note

Distances are to be measured horizontally, unless otherwise specified in these Regulations—see section 43 of the Interpretation of Legislation Act 1984.

Division 2—Application of Regulations

6 Exemptions

These Regulations do not apply to—

(a) a zoological park within the meaning of the Zoological Parks and Gardens Act 1995; or

(b) a person acting in accordance with a licence or authorisation issued under the Act at a premises in respect of which the licence or authorisation has been issued.

Part 2—Minimum distances from marine mammals

Division 1—Minimum distances for whales

7 Prescribed minimum distance from whales for regulated aircraft

(1) For the purposes of section 77A(1) of the Act, the prescribed minimum distance for a person operating a regulated aircraft is 500 vertical metres if the person is operating the regulated aircraft within a 500-metre radius of a whale.

(2) The minimum distance specified in subregulation (1) does not apply if the regulated aircraft is being used—

(a) to search for or rescue persons under the authority of Victoria Police; or

(b) to patrol for sharks under the authority of Surf Life Saving Victoria; or

(d) by a person attending an emergency within the meaning of the Emergency Management Act 2013.

8 Prescribed minimum distance from whales for prohibited vessels

For the purposes of section 77A(1) of the Act, the prescribed minimum distance from a whale for a person operating a prohibited vessel is 300 metres.

9 Prescribed minimum distances from non-dolphin whales and dolphins for allowable vessels

(1) Subject to regulation 11, for the purposes of section 77A(1) of the Act, the prescribed minimum distance from a non-dolphin whale for a person operating an allowable vessel is—

(a) 200 metres; or

(b) 100 metres, if in a narrow waterway.

(2) Subject to regulation 11, for the purposes of section 77A(1) of the Act, the prescribed minimum distance from a dolphin for a person operating an allowable vessel is—

(a) 100 metres, if outside a whale sanctuary zone; or

(b) 200 metres, if inside a whale sanctuary zone; or

10 Prescribed minimum distances from non-dolphin whales and dolphins for swimming

(1) Subject to regulation 11, for the purposes of section 77A(1) of the Act, the prescribed minimum distance from a non-dolphin whale for a person who is swimming is—

(a) 50 metres; or

(b) 30 metres, if in a narrow waterway.

(2) Subject to regulation 11, for the purposes of section 77A(1) of the Act, the prescribed minimum distance from a dolphin for a person who is swimming is 30 metres.

11 Prescribed minimum distance for a stranded or entangled whale

For the purposes of section 77A(1) of the Act, for any person the prescribed minimum distance from a whale that is stranded or entangled is 300 metres, unless—

(a) the person is acting in accordance with a commercial fishery licence within the meaning of the Fisheries Regulations 2009[2] and is tending to commercial fishing equipment within the meaning of the Fisheries Act 1995; or

(b) the person is acting in accordance with a permit or authorisation granted or issued under the Act; or

(c) the person is an authorised officer acting in the course of the officer's duties or a person acting under the direction of an authorised officer; or

(d) the person is a POCTA inspector acting in the course of the inspector's duties or a person acting under the direction of a POCTA inspector; or

(e) the person is within a distance that is less than 300 metres because it was necessary to do so in order to comply with an Act or regulations relating to navigation; or

(f) the person has been engaged by a port manager to undertake work to review or maintain the integrity of navigational aids under the control and management of the port manager; or

(g) the person is undertaking research, study or investigation pursuant to section 20 of the National Parks Act 1975.

Notes

1 For the penalty for approaching a whale at a distance that is less than the prescribed minimum distance, see section 77A(1) of the Act.

2 Different minimum approach distances apply to permit holders acting in accordance with a permit granted under Division 2 of Part X of the Act. See Part 5 of these Regulations.

Division 2—Minimum distances for seals

12 Minimum distances from seals for prohibited vessels

A person operating a prohibited vessel must not allow that vessel to approach within 50 metres of a seal, if the seal is on land or a haul out.

Penalty: 20 penalty units.

13 Minimum distances from seals for allowable vessels

(1) A person operating an allowable vessel must not allow that vessel to approach within—

(a) 10 metres of a seal—

(i) if the seal is on a haul out; and

(ii) the person operating the vessel is the holder of a tour operator licence granted under the National Parks Act 1975; or

(b) 30 metres of a seal—

(i) if the seal is on a haul out; or

(ii) if the seal is on land; or

Penalty: 20 penalty units.

(2) A person does not commit an offence against subregulation (1) merely because the person is within a distance that is less than the approach distance specified in subregulation (1)(a) or (b) (as the case requires) because it was necessary to—

(a) avoid damage or prevent further damage to person or property; or

(b) pass through the entrance to the structure known as Pope's Eye within the Port Phillip Heads Marine National Park located at 38.277°S 144.699°E.

14 Minimum distances from seals for persons

(1) A person must not approach within—

(a) 5 metres of a seal, if the seal is on water infrastructure or on a haul out; or

(b) 30 metres of a seal, if the seal is on land.

Penalty: 20 penalty units.

(a) pass a seal on land; or

(b) pass a seal on water infrastructure; or

(d) enable the person to launch or retrieve a vessel.

15 Exceptions to offences

A person does not commit an offence against regulation 12, 13(1) or 14(1) merely because—

(a) the person is—

(i) acting in accordance with a commercial fishery licence within the meaning of the Fisheries Regulations 2009; and

(ii) tending to commercial fishing equipment within the meaning of the Fisheries Act 1995; or

(b) the person is acting in accordance with a permit or authorisation granted or issued under the Act; or

(c) the person is an authorised officer acting in the course of the officer's duties or a person acting under the direction of an authorised officer; or

(d) the person is a POCTA inspector acting in the course of the inspector's duties or a person acting under the direction of a POCTA inspector; or

(e) the person is within a distance that is less than the distance specified in regulation 12, 13(1) or 14(1) (as the case requires) because it was necessary to do so in order to comply with an Act or regulations relating to navigation; or

(f) the person has been engaged by a port manager within the meaning of the Port Management Act 1995 to undertake work to review or maintain the integrity of navigational aids under the control and management of the port manager; or

(g) the person is undertaking research, study or investigation pursuant to section 20 of the National Parks Act 1975.

Note

Different minimum approach distances apply to permit holders acting in accordance with a permit granted under Part XA of the Act. See Part 5 of these Regulations.

Part 3—Protected areas

16 Whale sanctuary zones

(1) The Secretary, by determination published in the Government Gazette, may declare any area of water in which there is a need to protect whales as a whale sanctuary zone.

(2) A determination under subregulation (1) must specify—

(a) the type of whale to which the whale sanctuary zone applies; and

(b) the area or limits of the whale sanctuary zone.

(3) A determination under subregulation (1) may specify any area of the whale sanctuary zone by reference to any of the following—

(a) a map contained in the determination;

(b) a description of the area containing geographical coordinates;

17 Seal breeding colonies

(1) The Secretary, by determination published in the Government Gazette, may declare any area of land or of land and water in which seals breed as a seal breeding colony.

(2) A determination under subregulation (1) must specify—

(a) the area or limits of the seal breeding colony; and

(b) an area within the seal breeding colony that tour vessels are prohibited from entering.

(3) The Secretary must not make a determination under subregulation (1) unless the Secretary is satisfied that seals are breeding in, or are likely to breed in, the area or the limits of the seal breeding colony.

(4) A determination under subregulation (1) may specify any area referred to in subregulation (2) by reference to any of the following—

(a) a map contained in the determination;

(b) a description of the area containing geographical coordinates;

18 Offence to enter or approach a seal breeding colony

(1) A person must not enter a seal breeding colony.

Penalty: 20 penalty units.

(2) A person does not commit an offence against subregulation (1) merely because the person enters a seal breeding colony because it was necessary to do so in order to comply with an Act or regulations relating to navigation.

(3) Subregulation (1) does not apply to a person who is acting in accordance with a permit granted under section 85C of the Act.

(4) A person operating a regulated aircraft must not fly lower than 300 vertical metres within a 300‑metre radius of a seal breeding colony.

Penalty: 20 penalty units.

(5) A person operating a prohibited vessel must not allow that vessel to approach within 200 metres of a seal breeding colony.

Penalty: 20 penalty units.

(6) A person does not commit an offence against subregulation (1), (4) or (5) merely because—

(a) the person is—

(i) acting in accordance with a commercial fishery licence within the meaning of the Fisheries Regulations 2009; and

(ii) tending to commercial fishing equipment within the meaning of the Fisheries Act 1995; or

(b) the person is acting in accordance with a permit or authorisation granted or issued under the Act; or

(c) the person is an authorised officer acting in the course of the officer's duties or a person acting under the direction of an authorised officer; or

(d) the person is a POCTA inspector acting in the course of the inspector's duties or a person acting under the direction of a POCTA inspector; or

(e) the person has been engaged by a port manager to undertake work to review or maintain the integrity of navigational aids under the control and management of the port manager; or

(f) the person is undertaking research, study or investigation pursuant to section 20 of the National Parks Act 1975.

Note

Different minimum approach distances apply to permit holders acting in accordance with a permit granted under Part XA of the Act. See Part 5 of these Regulations.

19 Offence to enter Logan's Beach Exclusion Zone

(1) A person operating a vessel must ensure that the vessel does not enter or remain in the Logan's Beach Exclusion Zone at any time from 1 June to 31 October in any year.

Penalty: 20 penalty units.

(2) A person does not commit an offence against subregulation (1) if—

(a) the person is an authorised officer acting in the course of the officer's duties or a person acting under the direction of an authorised officer; or

(b) the person is an employee of the Department or the Victorian Fisheries Authority acting in the course of the employee's duties; or

(3) The Minister, by instrument published in the Government Gazette, may declare that subregulation (1) does not apply during any part of the time period during which subregulation (1) otherwise applies.

Part 4—General restrictions on activities relating to marine mammals

20 Restrictions on operation of regulated aircraft in the vicinity of marine mammals

(1) A person who is operating a regulated aircraft must not approach a marine mammal from head on.

Penalty: 20 penalty units.

(2) A person who is operating a regulated aircraft must not fly directly over or pass the shadow of the aircraft directly over a marine mammal.

Penalty: 20 penalty units.

(3) A person who is operating a regulated aircraft must not land on water or taxi on water within the caution zone of a marine mammal.

Penalty: 20 penalty units.

(4) A person operating a regulated aircraft capable of hovering must not cause or permit that aircraft to hover if the person is operating the regulated aircraft within a 500-metre radius of a marine mammal.

Penalty: 20 penalty units.

(5) A person does not commit an offence under subregulation (1), (2), (3) or (4) if the regulated aircraft is being used—

(a) to search for or rescue persons under the authority of Victoria Police; or

(b) to patrol for sharks under the authority of Surf Life Saving Victoria; or

(d) by a person attending an emergency within the meaning of the Emergency Management Act 2013.

(6) A person does not commit an offence against subregulation (1), (2), (3) or (4) merely because it is necessary to operate the regulated aircraft in order to—

(a) avoid damage or prevent further damage to person or property; or

(b) allow the regulated aircraft to take off or land; or

21 Restrictions on operation of vessels in the vicinity of marine mammals

(1) A person operating a vessel within the caution zone of a marine mammal must not cause or permit that vessel to—

(a) approach the marine mammal from head on at an angle less than 30 degrees to its observed direction of travel; or

(b) approach the marine mammal from the rear at an angle less than 30 degrees to its observed direction of travel; or

Penalty: 20 penalty units.

(2) A person operating a vessel within the caution zone of a marine mammal must not cause or permit that vessel to separate any individual marine mammal from a group of marine mammals.

Penalty: 20 penalty units.

(3) A person operating a vessel within the caution zone of a marine mammal must not cause or permit that vessel to come between a mother whale and calf or a mother seal and seal pup.

Penalty: 20 penalty units.

(4) A person operating a vessel within the caution zone of a marine mammal must not cause or permit that vessel to pursue a marine mammal, unless the person is acting in accordance with a permit granted under section 83A or 83D of the Act.

Penalty: 20 penalty units.

(5) A person operating a vessel within the caution zone of a marine mammal must move the vessel at a constant speed that does not exceed 5 knots.

Penalty: 20 penalty units.

(6) A person operating a vessel within the caution zone of a marine mammal must avoid sudden changes in speed or direction.

Penalty: 20 penalty units.

(7) A person operating a vessel within the caution zone of a marine mammal must manoeuvre the vessel to outside the caution zone if the marine mammal shows any sign of disturbance.

Penalty: 20 penalty units.

Examples

The following are signs of disturbance—

(a) for a whale—

(i) attempts to leave the area or vessel; and

(ii) sudden changes in surface behaviour; and

(iii) rapid changes in direction or speed of swimming; and

(iv) deep dives away from the vessel; and

(v) changes in breathing patterns; and

(vi) increased time spent under water compared to time spent at the surface; and

(vii) changes in acoustic behaviour; and

(viii) the onset of aggressive behaviours such as tail slaps or trumpet blows;

(b) for a seal—

(i) rapid movement toward or into the water if on land; and

(ii) sudden awakening from sleep on land; and

(iii) female attempting to shield a seal pup with her body or by her movements; and

(iv) vocalisation or growling in the direction of a vessel or person; and

(v) baring teeth in the direction of a vessel or person; and

(vi) blowing bubbles from the mouth, if in the water, in the direction of a vessel or person.

(8) A person operating a vessel within the caution zone of a marine mammal must manoeuvre the vessel to outside the caution zone if a calf is detected.

Penalty: 20 penalty units.

(9) A person operating a vessel must not enter a caution zone of a whale if more than 2 vessels are already within that caution zone, unless it is necessary to ensure safe passage through a narrow waterway.

Penalty: 20 penalty units.

(10) A person operating a vessel must not be within 100 metres of a tour vessel conducting a whale swim.

Penalty: 20 penalty units.

(11) A person operating a vessel in a narrow waterway must not remain within the caution zone of a marine mammal for longer than is necessary to ensure safe passage of the vessel through that waterway.

Penalty: 20 penalty units.

(12) A person does not commit an offence against subregulation (1), (2), (3), (4), (5), (6), (7), (8) or (10) merely because it is necessary to operate the vessel in order to—

(a) avoid damage or prevent further damage to person or property; or

(b) comply with an Act or regulations relating to navigation.

(13) In this regulation—

pursue, in relation to a marine mammal, means to alter speed or course to remain with the marine mammal.

22 Entering the water in the vicinity of whales

(1) A person must not enter the water within 50 metres of a non-dolphin whale.

Penalty: 20 penalty units.

(2) A person must not enter the water within 30 metres of a dolphin.

Penalty: 20 penalty units.

(3) A person does not commit an offence against subregulation (1) or (2) if—

(a) the person is an authorised officer acting in the course of the officer's duties or a person acting under the direction of an authorised officer; or

(b) the person is acting in accordance with a permit or authorisation granted or issued under the Act.

23 Feeding marine mammals

(1) A person must not feed a marine mammal.

Penalty: 20 penalty units.

(2) A person must not attempt to feed a marine mammal.

Penalty: 20 penalty units.

(3) A person must not dispose of food or waste within the caution zone of a marine mammal.

Penalty: 20 penalty units.

(4) A person does not commit an offence against subregulation (1), (2) or (3) if—

(a) the person is an authorised officer acting in the course of the officer's duties or a person acting under the direction of an authorised officer; or

(b) the person is acting in accordance with a permit or authorisation granted or issued under the Act; or

(c) the person is undertaking licensed commercial fishing operations and is routinely returning bycatch, if that person takes reasonable efforts to avoid doing so near a marine mammal.

24 Touching marine mammals

(1) A person must not touch a marine mammal.

Penalty: 20 penalty units.

(2) A person must not attempt to touch a marine mammal.

Penalty: 20 penalty units.

(3) A person does not commit an offence against subregulation (1) or (2) if—

(a) the person is a registered veterinary practitioner within the meaning of the Veterinary Practice Act 1997 or a person acting under the direction of a registered veterinary practitioner; or

(b) the person is acting in accordance with a permit or authorisation granted or issued under the Act; or

(c) the person is an authorised officer acting in the course of the officer's duties or a person acting under the direction of an authorised officer; or

(d) the person is a POCTA inspector acting in the course of the inspector's duties or a person acting under the direction of a POCTA inspector.

Reg. 24(4) inserted by S.R. No. 87/2022 reg. 4.

(4) Subregulations (1) and (2) do not apply to a person who is a member of a traditional owner group if—

(a) the member touches or attempts to touch a dead marine mammal in carrying out an agreed activity in accordance with a traditional owner group agreement by which that member is bound; and

(b) the member is on land to which the agreement applies.

25 Noise in the vicinity of marine mammals

(1) A person within the caution zone of a marine mammal must not make or cause to be made any loud or sudden noise.

Penalty: 20 penalty units.

(2) A person within the caution zone of a marine mammal must not play back or cause to be played back an underwater sound or a recording of any kind.

Penalty: 20 penalty units.

(3) A person does not commit an offence against subregulation (1) or (2) if—

(a) the person is acting in accordance with a permit or authorisation granted or issued under the Act; or

(b) the person is an authorised officer acting in the course of the officer's duties or a person acting under the direction of an authorised officer.

26 Dogs in the vicinity of marine mammals

(1) A person who is in charge of a dog must not allow that dog to be within the caution zone of a seal.

Penalty: 20 penalty units.

(2) A person who is in charge of a dog must not allow that dog to enter the water within the caution zone of a whale.

Penalty: 20 penalty units.

(3) A person who is in charge of a dog must not allow that dog to be within 300 metres of a stranded whale.

Penalty: 20 penalty units.

(4) A person does not commit an offence against subregulation (1) if—

(a) it is necessary to allow the dog to be within the caution zone of a seal to enable the person to pass the seal; and

(b) the dog is on a leash; and

(5) A person does not commit an offence against subregulation (1) if the dog is on a vessel.

(6) A person does not commit an offence against subregulation (3) if—

(a) it is necessary to allow the dog to be within 300 metres of a whale to enable the person to pass the whale; and

(b) the dog is on a leash; and

Part 5—Conditions of permits

27 Prescribed conditions of whale watching tour permits (aircraft)

For the purposes of section 83H of the Act, the following are prescribed conditions for a whale watching tour permit that specifies that the holder may conduct tours from an aircraft—

(a) the permit holder must, for each tour conducted, provide each person on the tour, who is not an employee of the permit holder, with clear and accurate information on the biology and conservation status of and threats facing each species of marine mammal encountered on the tour;

Examples

Information on the biology of marine mammals includes information on their morphology, behaviour, distribution and reproductive cycle.

(b) the permit holder must ensure that signs are clearly posted on the aircraft in places where all persons on the aircraft are reasonably likely to see them, advising of the requirements of these Regulations;

(d) the permit holder must ensure that the aircraft does not fly lower than 300 vertical metres within a 300-metre radius of a whale;

(e) if operating a helicopter or gyrocopter, the permit holder must ensure that the aircraft does not hover within a 300-metre radius of a whale.

28 Prescribed conditions of whale watching tour permits (tour vessel) and whale swim tour permits

(1) For the purposes of section 83H of the Act, the following are prescribed conditions for a whale watching tour permit that specifies that the holder may conduct tours from a tour vessel and for a whale swim tour permit—

(a) the permit holder must ensure that the requirements of these Regulations and the conditions of the permit are displayed on the permit holder's website;

(b) the permit holder must ensure that customers are advised of the requirements of these Regulations and the conditions of the permit prior to their tour;

(c) the permit holder must, for each tour conducted, provide each person on the tour, who is not an employee of the permit holder, with clear and accurate information on the biology and conservation status of and threats facing each species of marine mammal encountered on the tour;

Examples

Information on the biology of marine mammals includes information on their morphology, behaviour, distribution and reproductive cycle.

(d) the permit holder must ensure that signs are clearly posted on the tour vessel in places where all persons on the tour vessel are reasonably likely to see them, advising of the requirements of these Regulations and the conditions of the permit;

(e) the permit holder must ensure that before the tour vessel enters the caution zone of a whale, all persons on the tour vessel are verbally advised of the conditions of the permit and the requirements of these Regulations;

(f) the permit holder must ensure that all persons on the tour vessel, other than an employee of the permit holder, are under the direct supervision of a tour supervisor at all times;

(g) the permit holder must take reasonable steps to ensure that no person on the tour vessel breaches these Regulations;

(h) the permit holder must ensure that no motorised diving or swimming aid is used or allowed to be used within the caution zone of a whale from the tour vessel;

(i) the permit holder must ensure that no prohibited vessel is used or allowed to be used within 300 metres of a whale from the tour vessel;

(j) unless a greater distance is specified in the permit—

(i) the permit holder must ensure that the tour vessel does not approach within 50 metres of a dolphin or 100 metres of a non-dolphin whale, except when the tour vessel is in a narrow waterway; and

(ii) the permit holder must ensure that when the tour vessel is in a narrow waterway, the tour vessel does not approach within 25 metres of a whale; and

(iii) the permit holder must ensure that when the tour vessel is in a whale sanctuary zone, the tour vessel does not approach within 200 metres of a whale;

Note

While section 77A of the Act provides that the prescribed minimum approach distances in Division 1 of Part 2 of these Regulations do not apply to the holder of a whale watching tour permit or a whale swim tour permit, the approach distances for seals specified in Division 2 of Part 2 of these Regulations apply to the holders of these permits.

(k) the permit holder must ensure that when the tour vessel is within the caution zone of a whale, the tour vessel is not within 100 metres of another tour vessel;

(l) the permit holder must ensure that if a calf is detected, the tour vessel immediately withdraws to a distance from the calf that is at least—

(i) 100 metres for a dolphin; or

(ii) 200 metres for a non-dolphin whale;

(m) the permit holder must ensure that the tour vessel does not remain within the caution zone of any whale for more than a cumulative total of—

(i) 60 minutes each tour; and

(ii) 120 minutes each day.

(2) Subregulation (1)(f) does not apply in an emergency if human lives are threatened.

Note

Additional prescribed conditions for whale swim tour permits are set out in regulation 29.

29 Additional prescribed conditions of whale swim tour permits

(1) In addition to the conditions set out in regulation 28, for the purposes of section 83H of the Act, the following are prescribed conditions for a whale swim tour permit—

(a) the permit holder must not conduct a whale swim within a whale sanctuary zone;

(b) the permit holder must ensure that the tour vessel does not approach within 100 metres of a whale more than—

(i) 5 times each whale swim tour; and

(ii) 10 times each day;

(d) the permit holder must not conduct a whale swim if signs of mating are detected;

Examples

The following are signs of mating—

(a) jaw clicks;

(b) fin or tail slaps;

(d) aggressive behaviour such as repeated tail slaps;

(e) belly to belly contact;

(f) female swimming upside down and pursued by males;

(g) flanking behaviour observed, being 3 or more dolphins in close contact side-by-side exhibiting increased surface activity.

(e) the permit holder must conduct no more than one whale swim for each approach within the caution zone of a whale;

(f) the permit holder must ensure that a mermaid line is placed in the water before any person enters the water from the tour vessel;

(g) the permit holder must ensure that each person who takes part in a whale swim tour from the tour vessel, who is not the permit holder or an employee of the permit holder, holds onto the mermaid line at all times while each person is in the water;

(h) while in the water for any purpose—

(i) the permit holder must remain within 10 metres of the mermaid line; and

(ii) the permit holder must not approach a whale from head on or from directly behind; and

(iii) the permit holder must not approach a whale from above or from underneath;

(i) the permit holder must ensure that an employee of the permit holder, while in the water for any purpose—

(i) remains within 10 metres of the mermaid line; and

(ii) does not approach a whale from head on or from directly behind; and

(iii) does not approach a whale from above or from underneath;

(j) the permit holder must ensure that the tour vessel is not repositioned during a whale swim;

(k) the permit holder must ensure that the tour vessel is in a neutral gear at all times during a whale swim except where it is necessary to avoid damage or prevent further damage to person or property;

(l) the permit holder must not tow swimmers during a whale swim;

(m) at a distance of less than 30 metres from a whale, the permit holder must not enter the water from the tour vessel;

(n) at a distance of less than 30 metres from a whale, the permit holder must ensure that no person enters the water from the tour vessel;

(o) the permit holder must ensure that no more than 10 persons, not including the permit holder or an employee of the permit holder, participate in a whale swim at any one time;

(p) the permit holder must not attempt to attract or herd a whale towards the tour vessel or a person;

(q) the permit holder must ensure than an employee of the permit holder does not attempt to attract or herd a whale towards the vessel or a person;

(r) the permit holder must ensure that if a whale swim has commenced and a calf is detected—

(i) all persons involved in the whale swim immediately reboard the tour vessel; and

(ii) the tour vessel remains in neutral gear until the calf is at least—

(A) 100 metres from the vessel for a dolphin calf; or

(B) 200 metres from the vessel for a non-dolphin whale calf;

(s) the permit holder must ensure that if a whale swim has commenced and signs of mating are detected—

(i) all persons involved in the whale swim immediately reboard the tour vessel; and

(ii) the tour vessel remains in neutral gear until the mating activity is at least—

(A) 100 metres from the vessel for a dolphin; or

(B) 200 metres from the vessel for a non-dolphin whale;

(t) the permit holder must ensure that a person who participates in a whale swim from the tour vessel does not use underwater breathing equipment other than a snorkel while the person is in the water;

(u) the permit holder must ensure that at the end of a whale swim, the mermaid line is retrieved immediately and the tour vessel withdraws outside the caution zone of the whale.

(2) Subregulation (1)(j), (k) and (l) do not apply in an emergency if human lives are threatened.

30 Offence to conduct seal tour—prescribed person

For the purposes of section 85B(2) of the Act, a person who conducts a seal tour outside a seal breeding colony is a prescribed person in the prescribed circumstances.

31 Prescribed conditions of seal tour permits

For the purposes of section 85H of the Act, the following are prescribed conditions for a seal tour permit—

(a) the permit holder must ensure that the requirements of these Regulations and the conditions of the permit are displayed on the permit holder's website;

(b) the permit holder must ensure that customers are advised of the requirements of these Regulations and the conditions of the permit prior to their tour;

(c) for each tour conducted, the permit holder must provide all persons on the tour, other than an employee of the permit holder, with clear and accurate information on the biology and conservation status of and threats facing each species of marine mammal encountered on the tour;

Examples

Information on the biology of marine mammals includes information on their morphology, behaviour, distribution and reproductive cycle.

(e) the permit holder must ensure that before the tour vessel approaches a seal breeding colony, all persons on the tour vessel are verbally advised of the requirements of these Regulations;

(f) the permit holder must ensure that all persons on the tour vessel, other than an employee of the permit holder, are under the direct supervision of a tour supervisor at all times during a seal tour;

(g) the permit holder must take reasonable steps to ensure that no person on the tour vessel breaches these Regulations;

(h) at a seal breeding colony, the permit holder must ensure that the tour vessel does not enter the tour operator exclusion zone;

(i) outside of a seal breeding colony, the permit holder must ensure that the tour vessel does not approach a seal within a distance of 10 metres, if the seal is on land;

(j) the permit holder must ensure that the tour vessel moves at a constant speed not exceeding 5 knots within a seal breeding colony;

(k) the permit holder must ensure that the tour vessel does not make sudden changes in speed or direction within a seal breeding colony;

(l) the permit holder must ensure that no prohibited vessel launched from the tour vessel is used or allowed to be used within a seal breeding colony;

(m) the permit holder must ensure that if a seal shows any signs of disturbance, the tour vessel is immediately moved outside the seal breeding colony;

Note

Examples of signs of disturbance are set out at the foot of regulation 21(7).

(n) the permit holder must ensure that when a seal is in a cave, no vessel operated by the permit holder, or any person on the tour, enters the cave;

(o) the permit holder must ensure that the tour vessel does not come between a mother seal and a seal pup.

Part 6—Fees and record keeping

32 Prescribed fees for tour permits

(1) For the purposes of section 83GE of the Act, the prescribed fee for a whale watching tour permit that specifies that the holder may conduct tours from an aircraft is 26 fee units for each year of the period for which the permit is granted.

(2) For the purposes of section 83GE of the Act, the prescribed fee for a whale watching tour permit that specifies that the holder may conduct tours from a tour vessel is 26 fee units for each year of the period for which the permit is granted.

(3) For the purposes of section 83GE of the Act, the prescribed fee for a whale swim tour permit is 121 fee units for each year of the period for which the permit is granted.

(4) For the purposes of section 85E of the Act, the prescribed fee for a seal tour permit is 26 fee units for each year of the period for which the permit is granted.

(5) If a permit referred to in subregulation (1), (2), (3) or (4) is issued for less than 12 months, the prescribed fee is the fee prescribed in the subregulation divided by 12 and multiplied by the number of months the permit will remain valid.

(6) If a permit referred to in subregulation (1), (2), (3) or (4) is issued for more than 12 months, but less than 18 months, the prescribed fee is the number of fee units prescribed for one year for a permit in the subregulation divided by 12 and multiplied by the number of months the permit will remain valid.

(7) For the purposes of subregulation (5) or (6), when calculating the number of months the permit will remain valid, a part month should not be included in any calculation.

(8) The prescribed fee for an application for the replacement of a lost or damaged permit referred to in subregulation (1), (2), (3) or (4) is 1 fee unit.

(9) The prescribed fee for an application to vary a permit referred to in subregulation (1), (2), (3) or (4) is 2 fee units.

33 Monthly returns

(1) The holder of a whale watching tour permit, a whale swim tour permit or a seal tour permit must, for each month, keep a monthly return in the form provided by the Secretary.

Penalty: 20 penalty units.

(2) The holder of a whale watching tour permit or whale swim tour permit must ensure that, for each tour conducted, the following information is recorded—

(a) the name of the tour supervisor on the tour;

(b) the number of persons, other than the permit holder and any employee of the permit holder, on the aircraft or vessel during the tour;

(d) for a whale watching tour permit that specifies that the holder may conduct tours from an aircraft, the time of day for each instance the aircraft passed over a whale or whales;

(e) for a whale watching tour permit or whale swim tour permit that specifies that the holder may conduct tours from a vessel, the time of day for each instance that the vessel entered and left the caution zone of a whale;

(f) the location of any whales sighted;

(g) the species and number of whales sighted;

(h) any other information required by the Secretary.

(3) In addition to any information required to be recorded under subregulation (2), the holder of a whale swim tour permit must ensure that, for each whale swim tour conducted, the following information is recorded before any person disembarks from the tour vessel—

(a) the number of persons, other than the permit holder and any employee of the permit holder, on the whale swim tour who participated in the whale swim during that tour;

(b) the time of day that the whale swim commenced and finished;

(d) any other information required by the Secretary.

(4) The holder of a seal tour permit must ensure that, for each tour conducted, the following information is recorded—

(a) the name of the tour supervisor on the tour;

(b) the number of persons, other than the permit holder and any employee of the permit holder, on the vessel during the tour;

(d) the time of day for each instance that the vessel entered a seal breeding colony;

(e) the location of seals sighted;

(f) any other information required by the Secretary.

(5) The holder of a permit must ensure that any information required to be recorded under subregulation (2), (3) or (4) is included in the return kept under subregulation (1) for the calendar month in which the relevant tour is conducted.

Penalty: 20 penalty units.

(6) The holder of a permit must ensure that each return kept under subregulation (1) is submitted to the Secretary by the fourteenth day of the month following the calendar month to which the return relates.

Penalty: 20 penalty units.

(7) The holder of a permit must ensure that a return kept under subregulation (1) is made available for inspection by an authorised officer upon request.

(8) The holder of a permit must comply with a request from an authorised officer to inspect a return kept under subregulation (1).

Penalty: 20 penalty units.

34 Electronic recording of information

(1) Where these Regulations require a person to record or keep information for any purpose, the Secretary may require the information to be recorded or kept in an electronic form.

(2) Where these Regulations require a person to provide or submit information for any purpose, the relevant body may require the information to be provided or submitted to the Secretary by means of an electronic communication.

(3) Where the Secretary has issued a requirement under this regulation, a reference to an application in regulation 32 or reference to a return in regulation 33 includes a reference to the application or return in that electronic form.

Schedule 1—Logan's Beach Exclusion Zone

Regulations 5, 19(1)

View image in the official source

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Endnotes

1 General information

See www.legislation.vic.gov.au for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.

The Wildlife (Marine Mammals) Regulations 2019, S.R. No. 109/2019 were made on 19 November 2019 by the Governor in Council under sections 85A and 87 of the Wildlife Act 1975, No. 8699/1975 and came into operation on 23 November 2019: regulation 3.

The Wildlife (Marine Mammals) Regulations 2019 will sunset 10 years after the day of making on 19 November 2029 (see section 5 of the Subordinate Legislation Act 1994).

INTERPRETATION OF LEGISLATION ACT 1984 (ILA)

Style changes

Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.

References to ILA s. 39B

Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided regulation, rule or clause of a Schedule is amended by the insertion of one or more subregulations, subrules or subclauses the original regulation, rule or clause becomes subregulation, subrule or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original regulation, rule or clause.

Interpretation

As from 1 January 2001, amendments to section 36 of the ILA have the following effects:

• Headings

All headings included in a Statutory Rule which is made on or after
1 January 2001 form part of that Statutory Rule. Any heading inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, forms part of that Statutory Rule.
This includes headings to Parts, Divisions or Subdivisions in a Schedule; Orders; Parts into which an Order is divided; clauses; regulations; rules; items; tables; columns; examples; diagrams; notes or forms.
See section 36(1A)(2A)(2B).

• Examples, diagrams or notes

All examples, diagrams or notes included in a Statutory Rule which is made on or after 1 January 2001 form part of that Statutory Rule. Any examples, diagrams or notes inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, form part of that Statutory Rule. See section 36(3A).

• Punctuation

All punctuation included in a Statutory Rule which is made on or after
1 January 2001 forms part of that Statutory Rule. Any punctuation inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, forms part of that Statutory Rule.
See section 36(3B).

• Provision numbers

All provision numbers included in a Statutory Rule form part of that Statutory Rule, whether inserted in the Statutory Rule before, on or after
1 January 2001. Provision numbers include regulation numbers, rule numbers, subregulation numbers, subrule numbers, paragraphs and subparagraphs. See section 36(3C).

• Location of "legislative items"

A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of a Statutory Rule is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.

• Other material

Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of a Statutory Rule. See section 36(3)(3D)(3E).

2 Table of Amendments

This publication incorporates amendments made to the Wildlife (Marine Mammals) Regulations 2019 by statutory rules, subordinate instruments and Acts.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Wildlife (Marine Mammals) Amendment Regulations 2022, S.R. No. 87/2022

Date of Making:	20.9.22
Date of Commencement:	20.9.22

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

3 Explanatory details

Reg. 4: S.R. No. 143/2009. ↑
Reg. 11(a): S.R. No. 2/2009. Reprint No. 2 as at 1 July 2017. Reprinted to S.R. No. 58/2017. Extended in operation by S.R. No. 112/2018 and subsequently amended by S.R. No. 11/2019.

——

Fee Units

These Regulations provide for fees by reference to fee units within the meaning of the Monetary Units Act 2004.

The amount of the fee is to be calculated, in accordance with section 7 of that Act, by multiplying the number of fee units applicable by the value of a fee unit.

The value of a fee unit for the financial year commencing 1 July 2022 is $15.29. The amount of the calculated fee may be rounded to the nearest 10 cents.

The value of a fee unit for future financial years is to be fixed by the Treasurer under section 5 of the Monetary Units Act 2004. The value of a fee unit for a financial year must be published in the Government Gazette and a Victorian newspaper before 1 June in the preceding financial year.

Penalty Units

These Regulations provide for penalties by reference to penalty units within the meaning of section 110 of the Sentencing Act 1991. The amount of the penalty is to be calculated, in accordance with section 7 of the Monetary Units Act 2004, by multiplying the number of penalty units applicable by the value of a penalty unit.

The value of a penalty unit for the financial year commencing 1 July 2022 is $184.92. The amount of the calculated penalty may be rounded to the nearest dollar.

The value of a penalty unit for future financial years is to be fixed by the Treasurer under section 5 of the Monetary Units Act 2004. The value of a penalty unit for a financial year must be published in the Government Gazette and a Victorian newspaper before 1 June in the preceding financial year. ↑

1 Wildlife (Marine Mammals) Regulations 2019

Version No. 002

Wildlife (Marine Mammals) Regulations 2019

S.R. No. 109/2019

Version incorporating amendments as at
20 September 2022

TABLE OF PROVISIONS

Regulation Page

Part 1—Preliminary 1

Division 1—General 1

1 Objectives 1

2 Authorising provisions 1

3 Commencement 1

4 Revocation 2

5 Definitions 2

Division 2—Application of Regulations 6

6 Exemptions 6

Part 2—Minimum distances from marine mammals 7

Division 1—Minimum distances for whales 7

7 Prescribed minimum distance from whales for regulated aircraft 7

8 Prescribed minimum distance from whales for prohibited vessels 7

9 Prescribed minimum distances from non-dolphin whales and dolphins for allowable vessels 8

10 Prescribed minimum distances from non-dolphin whales and dolphins for swimming 8

11 Prescribed minimum distance for a stranded or entangled whale 9

Division 2—Minimum distances for seals 10

12 Minimum distances from seals for prohibited vessels 10

13 Minimum distances from seals for allowable vessels 10

14 Minimum distances from seals for persons 11

15 Exceptions to offences 12

Part 3—Protected areas 14

16 Whale sanctuary zones 14

17 Seal breeding colonies 14

18 Offence to enter or approach a seal breeding colony 15

19 Offence to enter Logan's Beach Exclusion Zone 17

Part 4—General restrictions on activities relating to marine mammals 18

20 Restrictions on operation of regulated aircraft in the vicinity of marine mammals 18

21 Restrictions on operation of vessels in the vicinity of marine mammals 19

22 Entering the water in the vicinity of whales 22

23 Feeding marine mammals 23

24 Touching marine mammals 23

25 Noise in the vicinity of marine mammals 24

26 Dogs in the vicinity of marine mammals 25

Part 5—Conditions of permits 27

27 Prescribed conditions of whale watching tour permits (aircraft) 27

The Regulations are structured around a few core regulatory concepts. Those concepts are the legal building blocks that determine who can do what, when, where and at what administrative cost.

Marine mammal definitions and caution zones. “Marine mammal” is defined as a whale or a seal; “whale” under the Act includes dolphins (reg 5 note). The Regulations create a concept of a “caution zone” around an individual animal with species‑specific radii: dolphins 150 metres, non‑dolphin whales 300 metres, seals 50 metres (reg 5 definitions). The caution zone is used as the operative spatial unit in many behavioural rules (see regs 20-21, 25).
Prescribed minimum approach distances. Separate from caution zones, the Regulations prescribe minimum approach distances for aircraft, prohibited vessels, allowable vessels, swimmers and for stranded or entangled whales (regs 7-11, 12-14). For example, a regulated aircraft must maintain 500 vertical metres if operating within a 500‑metre radius of a whale (reg 7). Prohibited vessels (a defined set including personal motorised craft, parasails, hovercraft and remotely‑operated water craft) must keep 300 metres from whales (reg 8) and 50 metres from seals on land or haul outs (reg 12). Allowable vessels face a more graduated set of minima depending on species and context (reg 9).
Differentiation between vessel/aircraft types and activities. The instrument distinguishes “allowable vessels” (anything not a prohibited vessel), “tour vessel” (as specified in a permit), “regulated aircraft” (including remotely piloted devices) and prohibited vessels. That taxonomy determines which distance and conduct rules apply and whether different permit conditions can override default minima (reg 5 definitions; reg 28 note).
Spatial protection designations. The Secretary may declare whale sanctuary zones (reg 16) and seal breeding colonies (reg 17) by Gazette determination. Those determinations must specify area/type/limits and may use maps or coordinates (regs 16(2)-(3), 17(2)-(4)). Separate to Secretary determinations, the Regulations fix a Logan’s Beach Exclusion Zone, seasonally enforced (reg 19 and Schedule 1).
Permit structure and conditions. The Regulations prescriptively set conditions for different permits (whale watching by aircraft, whale watching by vessel, whale swim tour permits and seal tour permits) for the purposes of the corresponding sections of the Wildlife Act 1975 (regs 27-31). These include information and signage duties, supervision (tour supervisors), limits on numbers and duration (reg 28(1)(m) caps a vessel’s cumulative time in the caution zone to 60 minutes per tour and 120 minutes per day), strict rules for whale swims (reg 29), and recording and reporting duties (reg 33).
Exceptions and statutory overlaps. Numerous exceptions exist where the Regulations do not apply or do not create offences: zoological parks and licensed premises (reg 6), persons acting under licences or permits under other statutes (e.g. Fisheries Act 1995, National Parks Act 1975), authorised officers or POCTA inspectors acting in their duties, urgent navigation / emergency circumstances, and authorised research (see regs 11, 15, 16(6), 21(12), 23(4), 24(3), 24(4) , the latter specifically providing an exception for members of traditional owner groups in narrow circumstances).
Compliance and data collection. Permit‑holders must keep monthly returns in a prescribed form with detailed fields (reg 33), make returns available to authorised officers and submit them by statutory deadlines. The Secretary may require electronic recording and submission (reg 34). The Regulations also prescribe fees (reg 32) and penalties (typically 20 penalty units for many contraventions).
Measurement and interpretative anchors. Distances are to be measured horizontally unless otherwise specified, citing the Interpretation of Legislation Act 1984 (reg 5 note). Examples and notes within the Regulations are declared to form part of the instrument (endnotes), which matters for interpretation of the “Examples” that list signs of disturbance and mating behaviour (reg 21(7) and reg 29(1)(d) examples).

These concepts create an operational legal regime where spatial buffers, activity controls, permit conditions and reporting obligations interlock. The Secretary’s power to declare sanctuary zones and breeding colonies is the principal mechanism for area‑based protection, while prescriptive rules and permit conditions shape everyday operator behaviour and monitoring.

The Regulations create distinct effects across several groups. Identifying who pays costs, who makes decisions and who faces compliance risk allows stakeholders to see where incentives land.

Commercial tour operators. Operators of whale watching tours by aircraft or vessel, whale swim operators and seal tour operators are directly regulated. They must hold the relevant permit under the Act and comply with prescribed permit conditions (Part 5: regs 27-31). Permit fees are prescribed (reg 32: typically 26 fee units for most tour permits, 121 fee units for whale swim permits). Permit‑holders must keep monthly returns, record detailed tour data (reg 33), display conditions on their websites and on vessels or aircraft (regs 27, 28, 31), supervise customers via tour supervisors (regs 28(1)(f), 31(f)) and observe limits on approaches, durations and participant numbers (reg 28(1)(j),(l),(m); reg 29(1)(o)).
Recreational boaters, pilots and drone operators. The Regulations apply to any person operating a vessel, aircraft or remotely piloted device. “Regulated aircraft” explicitly includes remotely piloted devices (reg 5), bringing drone operators within the airborne rules (reg 7, 20). “Prohibited vessel” encompasses personal motorised craft and remotely‑operated water craft (reg 5), so many recreational craft are directly restricted (regs 8, 12, 21).
Swimmers and general public. Persons are constrained in entering the water close to whales and dolphins (reg 22) and in approaching seals on land or water infrastructure (reg 14). Feeding, touching, deliberate noise and dog proximity rules apply to the public (regs 23-26). Specific seasonal exclusion at Logan’s Beach prohibits vessels from entering the exclusion zone from 1 June to 31 October (reg 19).
Traditional owner groups. The Regulations explicitly accommodate traditional owner activities in narrow circumstances. Reg 24(4) (inserted by S.R. No. 87/2022) provides that members of a traditional owner group may touch or attempt to touch a dead marine mammal in carrying out an agreed activity under a traditional owner group agreement, provided the activity occurs on land to which the agreement applies. Definitions of “agreed activity”, “traditional owner group” and “traditional owner group agreement” were inserted by S.R. No. 87/2022 (reg 5).
Statutory agencies and authorised officers. The Regulations rely on authorised officers and other statutory actors for enforcement and for exceptions. POCTA inspectors have specific exceptions when acting in the course of duties (regs 11, 15, 24(3)). Victoria Police, Surf Life Saving Victoria and port managers are named in other exception mechanisms (regs 7(2), 20(5), 11(e),(f)). The Secretary is the decision‑maker for sanctuary and colony determinations (regs 16-17) and has power to require electronic forms (reg 34), while the Minister may temporarily suspend the Logan’s Beach ban (reg 19(3)).
Commercial fishers and maritime operators. Persons acting in accordance with a commercial fishery licence and tending commercial fishing equipment have specific exceptions to approach distances in certain contexts (regs 11(a), 15(a)). Persons engaged by a port manager to review or maintain navigational aids are also excepted in a number of provisions (regs 11(f), 15(f), 16(6)(e)).
The Secretary and permit‑issuing authority. Administrative burden and discretion rest with the Secretary who issues determinations for protected areas (regs 16-17), prescribes permit forms, may require electronic submission (reg 34), and receives monthly returns (reg 33). The Secretary also prescribes conditions for permits (Part 5, regs 27-31).

Who pays: primarily commercial operators (permit fees, administrative compliance, constrained operations) and the recreational public who may be subject to fines for breaches. Who decides: the Secretary determines protected areas and electronic form requirements, the Minister can create short‑term exceptions for Logan’s Beach, and authorised officers exercise enforcement powers and can require inspection of returns (reg 33(7)-(8)). Behavioural changes: operators must restructure tours (approach distances, durations, supervision), persons must avoid entering waters or approaching animals in many contexts, and pilots/drone operators must modify flight paths and altitudes.

The Regulations impose a bundle of express duties on operators, permit‑holders and members of the public, and also set out limited statutory rights and exceptions. Below are the principal duties and the statutory carve‑outs.

Principal duties (selected, with citations)

Maintain minimum distances. Aircraft operators must keep at least 500 vertical metres when within a 500‑metre radius of a whale, subject to specified exceptions (reg 7). Prohibited vessels must keep 300 metres from whales (reg 8). Allowable vessels face species‑ and context‑dependent minima (reg 9). Persons who swim must keep 50 metres from non‑dolphin whales, 30 metres in narrow waterways, and 30 metres from dolphins (reg 10). Seals have specific vessel and person approach distances (regs 12-14).
Aircraft operational constraints. Regulated aircraft must not approach marine mammals head‑on, fly directly over them or their shadow, land or taxi within the caution zone, or, where capable of hovering, hover within 500 metres of a marine mammal (reg 20).
Vessel behaviour within caution zones. Vessel operators within a marine mammal’s caution zone must not approach head‑on or rear at angles less than 30 degrees to the animal’s direction, must not separate individuals from a group, must not come between mother and calf/pup, must not pursue the animal, must maintain a constant speed not exceeding 5 knots and avoid sudden changes, must withdraw if signs of disturbance appear, must withdraw if a calf is detected, and must not enter a whale’s caution zone if more than two vessels are already present except for safe passage in narrow waterways (reg 21).
Swimming rules. Persons must not enter water within 50 metres of non‑dolphin whales or within 30 metres of dolphins, subject to exceptions for authorised officers and permit holders (reg 22).
Prohibitions on feeding, touching and loud noise. Feeding, attempting to feed, touching or attempting to touch marine mammals are prohibited for the public (regs 23-24). Loud or sudden noise and playback of underwater sounds or recordings within a caution zone are also prohibited (reg 25).
Dogs. Persons in charge of dogs must not allow dogs within the seal caution zone, into the water within whale caution zones, or within 300 metres of a stranded whale, with limited exceptions for passing (reg 26).
Permit‑holder duties. Permit conditions are prescriptive. For aircraft‑based whale watching: signage, informational materials, and specific altitude/hovering limits (reg 27). Vessel‑based permit conditions include website disclosure of rules, customer briefing, signs on vessels, supervision by tour supervisors, prohibitions on prohibited vessels and motorised diving aids within 300 metres, approach distances tailored to context, limits on cumulative time in the caution zone (60 minutes per tour, 120 minutes per day) and inter‑tour vessel separation (reg 28). Whale swim permit conditions add further controls: prohibition inside whale sanctuary zones, maximum number of approaches per tour and per day, no swims when calves or mating signs present, mermaid line rules, limit of 10 participants per swim, and strict vessel gear and movement rules during swims (reg 29). Seal tour permit conditions are similarly prescriptive (reg 31).
Record keeping and returns. Permit‑holders must keep monthly returns in the form provided by the Secretary and submit them by the 14th day of the following month (reg 33). The returns require detailed entries per tour including supervisor name, numbers, times of entering/leaving caution zones or aircraft passes, species, locations and additional information the Secretary requires (reg 33(2)-(4)).

Rights, exceptions and carve‑outs

Statutory exceptions for certain actors. Multiple provisions exempt or carve out licenced activities and statutory duties: persons acting under a commercial fishery licence (reg 11(a), 15(a)); persons acting under a permit or authorisation under the Wildlife Act or other legislation (regs 11(b), 15(b)); authorised officers or people acting under their direction (regs 11(c), 15(c)); POCTA inspectors acting in the course of duties (regs 11(d), 15(d)); compliance with navigation requirements or port manager engagements to maintain navigational aids provide additional exceptions (regs 11(e)-(f), 15(e)-(f)). Emergency services and specified patrols are exempt from some aircraft restrictions (reg 7(2), 20(5)).
Permit‑holder overrides. The Regulations note that the prescribed minimum approach distances in Division 1 of Part 2 do not apply to holders of whale watching or whale swim permits acting under those permits; instead the permit conditions in Part 5 govern approach distances for permit‑holders (reg 9 and the note at reg 28).
Limited cultural exception. Reg 24(4) (inserted by S.R. No. 87/2022) allows members of a traditional owner group to touch a dead marine mammal when carrying out an agreed activity under a traditional owner group agreement, but only on land covered by the agreement.
Administrative discretion. The Secretary and Minister have decision‑making space: the Secretary declares sanctuary zones and seal breeding colonies (regs 16-17), the Minister may declare that the Logan’s Beach Exclusion Zone does not apply for part of the specified season (reg 19(3)), and the Secretary can require electronic forms and submissions (reg 34).

Measurement and interpretative anchors

Distances are to be measured horizontally unless otherwise stated (reg 5 note referencing the Interpretation of Legislation Act 1984). Examples and notes are part of the statutory text (endnotes), which affects how examples (for instance, “signs of disturbance”) are read.

Taken together, the duties create a prescriptive compliance regime of spatial buffers, behaviour controls, administrative reporting and detailed permit conditions. The rights and exceptions carve out public authorities, licensed fishers, permitted research and limited cultural practices from some of those duties.

Penalties

Most of the offences specified in the Regulations attract a penalty of 20 penalty units (examples include regs 12, 13(1), 14(1), 18(1), 18(4)-(5), 20(1)-(4), 21(1)-(11), 22(1)-(2), 23-26, 33(1), 33(6), 33(8)). The instrument’s endnotes explain that penalty units are to be interpreted under section 110 of the Sentencing Act 1991 and their monetary value is fixed under the Monetary Units Act 2004 (endnotes). For the financial year commencing 1 July 2022 the value of a penalty unit is stated as $184.92 (endnotes). That converts a 20 penalty unit offence into a notional monetary amount of $3,698.40 for that financial year (20 × $184.92), subject to statutory variation in future years.
Administrative fees for permits are expressed in fee units (reg 32). The endnotes give the value of a fee unit for the 2022 financial year as $15.29, and explain the method for calculating fees when permits are issued for less than or more than 12 months (endnotes). For example, a whale swim tour permit is fixed at 121 fee units (reg 32(3)); at the 2022 fee unit value that equates to $1,849.09 (121 × $15.29), again subject to the Treasurer’s future adjustments.

Enforcement mechanics

Enforcement is performed by authorised officers and other specified statutory actors. The Regulations repeatedly reference authorised officers, POCTA inspectors, port managers and specified agency employees in the context of exceptions and enforcement (see regs 11, 15, 16(6), 18(2), 19(2), 20(5), 23(4), 24(3)). The Regulations give authorised officers explicit rights to inspect returns and require permit‑holders to make returns available on request (reg 33(7)-(8)). Refusal to comply with an inspection request is itself a 20 penalty unit offence (reg 33(8)).
Administrative monitoring and data collection. The requirement for detailed tour records (reg 33(2)-(4)) and monthly returns creates a paper trail for enforcement. The Secretary may require information to be recorded and submitted electronically (reg 34), which enables centralised collection and oversight and facilitates audit and enforcement.
Deterrence and graduated intervention. The Regulations rely primarily on criminal penalty units and permit conditions to influence behaviour. There is no bespoke civil infringement notice scheme created in the Regulations text , enforcement therefore takes the form of prosecutions for offences under the Regulations and administrative oversight of permit conditions and returns.
Geographic enforcement and decision‑maker powers. The Secretary determines sanctuary zones and seal breeding colony boundaries (regs 16-17), and those determinations can be made by map, coordinates or plan lodged in the Central Plan Office (regs 16(3), 17(4)). The Minister can suspend the Logan’s Beach Exclusion Zone in part via Gazette instrument (reg 19(3)), which provides a short‑term executive route to alter an exclusion.

Implementation and compliance risk

Inspection risk: permit‑holders must submit returns monthly and make them available on request (reg 33), creating ongoing inspection exposure. Because many substantive offences carry 20 penalty units, failure to adhere to the prescriptive rules has material financial exposure. The Secretary’s power to require electronic forms (reg 34) increases the risk of prompt discovery of non‑compliance.
Overlap with other enforcement regimes: exceptions for other statutory licences and duties (e.g. Fisheries Act 1995, National Parks Act 1975, Prevention of Cruelty to Animals Act 1986) create cross‑agency enforcement horizons. Those overlaps may require coordination and can create friction in enforcement practice if roles and priorities differ.
Temporal horizon: the Regulations will sunset ten years after making (see endnotes), which means the enforcement regime is framed with an expiry in mind (endnotes reference the Subordinate Legislation Act 1994).

In sum, the Regulations rely on conventional criminal penalties, prescriptive permit conditions and mandatory reporting to enforce the policy. Enforcement is enabled by authorised officers, data collection and central administrative discretion. The monetary scale of penalties and fees is tied to fee and penalty units fixed under other statutes; endnotes provide the relevant conversion values for the 2022 year.

The Regulations are an instrument under the Wildlife Act 1975 and repeatedly cross‑reference and integrate with a network of other statutory schemes. The interaction framework is largely exception‑based: other laws furnish exceptions, define actors, or supply the measures that the Regulations incorporate.

Primary authorising law

Wildlife Act 1975. The Regulations are made under ss 85A and 87 of the Wildlife Act 1975 (reg 2). Several rules reference specific sections of the Act , for example, the prescribed minimum distances are for the purposes of section 77A(1) of the Act (regs 7-11, and explanatory notes refer to penalties under s 77A(1)), and Part 5 conditions are prescribed for the purposes of the Act’s permit provisions (reg 27 references s 83H; reg 30 references s 85B(2); reg 31 references s 85H).

Cross‑referenced statutes and roles

Fisheries Act 1995 and Fisheries Regulations 2009. Commercial fishers who hold commercial fishery licences and are tending fishing equipment are expressly carved out in several exceptions (regs 11(a), 15(a)). Those exceptions mean that commercial fishing activities authorised under the fisheries framework can require proximity or certain actions that would otherwise be offences under these Regulations.
Prevention of Cruelty to Animals Act 1986. “POCTA inspector” is defined with reference to that Act and those inspectors are given specific operational exceptions when performing their duties (regs 11(d), 15(d), 24(3)).
National Parks Act 1975. Research, study or investigation carried out pursuant to section 20 of the National Parks Act is an exception in several clauses (regs 11(g), 15(g), 16(6)(f)). Also, the Regulations reference tour operator licences under the National Parks Act for a narrow approach distance exception (reg 13(1)(a)(ii)).
Port Management Act 1995. The definition and role of “port manager” come from this Act; persons engaged by a port manager to review or maintain navigational aids are excepted in a number of provisions (regs 11(f), 15(f), 16(6)(e)).
Emergency Management Act 2013. The Regulations exempt persons attending an emergency within the meaning of that Act from certain aircraft restrictions (regs 7(2)(d), 20(5)(d)).
Traditional Owner Settlement Act 2010. The Regulations adopt definitions from that Act (reg 5) and provide a narrow cultural exception (reg 24(4)) for members of traditional owner groups carrying out “agreed activities” under a traditional owner group agreement.
Interpretation of Legislation Act 1984. Measurement conventions (distances measured horizontally unless otherwise specified) are grounded by reference to that Act (reg 5 note). The endnotes also explain that examples, notes and headings form part of the instrument under the Interpretation Act framework, which is important for interpreting the “Examples” that describe signs of disturbance and mating behaviour.
Monetary Units Act 2004 and Sentencing Act 1991. The Regulations express fees and penalties in fee and penalty units (reg 32, multiple penalty clauses). The endnotes clarify how to convert those units to monetary amounts and record the unit values for 2022.

Practical interactions and potential friction points

Overriding permit regime. The Regulations explicitly state that the prescribed minimum approach distances in Part 2 do not apply to permit holders acting under Division 2 of Part X of the Act; instead, Part 5 permit conditions apply (see note in reg 9 and reg 28 note). That creates a two‑layered regime in which permit conditions can be more permissive or more restrictive than the default minima but are the controlling standard for permit‑holders.
Multiple enforcement jurisdictions. The involvement of fisheries, parks, port management, police and animal welfare inspectors introduces inter‑agency interaction in enforcement and exceptions. Where activities touch more than one statutory domain (for example, research near a seal breeding colony conducted by a fishery authorised vessel), coordination will be necessary and could produce administrative burdens or delay.
Cultural and research exceptions. The Regulations provide narrow pathways for cultural practices and research, but those exceptions are bounded by other statutory instruments and often require specific agreements or authorisations. For example, traditional owner group exceptions rely on the existence of a binding traditional owner group agreement under the Traditional Owner Settlement Act 2010 (reg 24(4)).
Gazette determinations and mapping. The Secretary’s power to determine sanctuary zones and seal breeding colonies requires public mapping or coordinate publication (regs 16-17). These tie the Regulations to planning and land/water gazette processes and to the Central Plan Office for plan lodging, which in practice demands cross‑agency information flows and publication.

In short, the Regulations are woven into a broader statutory fabric. They frequently defer to or incorporate other acts for definitions, role allocations and exceptions. Compliance and enforcement therefore often require attention to multiple Acts and inter‑agency authorisations.

The Regulations were made on 19 November 2019 and commenced on 23 November 2019 (reg 3; endnotes). They revoke the earlier Wildlife (Marine Mammals) Regulations 2009 (reg 4). The version provided to you is the version incorporating amendments as at 20 September 2022, and the Table of Amendments in the endnotes identifies the specific amending instrument as Wildlife (Marine Mammals) Amendment Regulations 2022, S.R. No. 87/2022, made 20 September 2022 (endnotes, Table of Amendments).

Key amendment markers recorded in the text

Insertions to definitions. The endnotes and marginal notes in reg 5 show that S.R. No. 87/2022 inserted definitions for “agreed activity”, “traditional owner group” and “traditional owner group agreement” by reg 3 of that amending instrument. Those insertions enable the cultural exception found at reg 24(4).
Cultural exception insertion. Reg 24(4) itself is noted as being inserted by S.R. No. 87/2022 reg 4. That subregulation provides that subregs (1) and (2) (the touching prohibitions) do not apply to members of a traditional owner group touching or attempting to touch a dead marine mammal in carrying out an agreed activity under a traditional owner group agreement, provided the activity occurs on land covered by the agreement.
Incorporation note. The Regulations display the version number and the statement “Version incorporating amendments as at 20 September 2022,” which confirms that S.R. No. 87/2022 is reflected in this consolidated text (header).

Other amendment‑relevant details in the endnotes

The endnotes emphasise interpretation matters introduced by the Interpretation of Legislation Act 1984 and note that examples and notes in the instrument form part of the statutory rule (endnotes). That change affects how inserted examples (for instance, the lists under regs 21(7) and 29(1)(d)) are treated legally.
Fee and penalty unit values. The endnotes set the fee unit and penalty unit values for the 2022 financial year ($15.29 per fee unit and $184.92 per penalty unit) and state the Treasurer will fix future values (endnotes). While not an amendment to the Regulations per se, these published values affect the real‑world monetary impact of fee and penalty provisions.

Sunset and repeal mechanics

The endnotes record that the Regulations will sunset ten years after the day of making on 19 November 2029 (endnotes referencing the Subordinate Legislation Act 1994). That sunset date frames the Regulations as a time‑limited subordinate instrument subject to future legislative review or renewal.

The amendment history as provided in the instrument is limited to the 2022 amending instrument noted above. No other subordinate amendments are shown in the reprint provided. For a full legislative history beyond what is included here, practitioners must consult the Victorian legislation database and the Government Gazette for determinations and amending statutory rules referenced in regs 16-19 and in the endnotes.

The Regulations as provided contain no citations to judicial decisions, no reported litigation history, and name no cases. The text also does not include any transitional or saving clauses that reference ongoing litigation. The endnotes and table of amendments list only subordinate instruments and amending regulations; they do not reference court proceedings.

Operationally, enforcement under the Regulations will proceed by prosecution for statutory offences (where the Regulations prescribe penalties) and by administrative oversight through the Secretary’s permit and return regime. Any litigation that arises is likely to fall into a few predictable categories , for example:

prosecutions for contraventions of the Regulations (criminal proceedings for offences specified in regs 12-15, 18, 20-26, 33, etc);
judicial review or administrative law challenges to Secretary determinations (whale sanctuary zones, seal breeding colony declarations under regs 16-17) or to Ministerial instruments (temporary suspension of the Logan’s Beach Exclusion Zone under reg 19(3));
disputes over the interpretation of permit conditions or alleged breaches leading to licence revocation or enforcement action;
civil disputes between operators or between an operator and an agency arising from enforcement directives.

None of those categories are reflected in the text as existing litigation. Practitioners should therefore assume there is no reported litigation history in the instrument itself and should search case law databases and contemporary reporting for any prosecutions, administrative appeals or judicial review proceedings that post‑date this consolidated version.

For readers preparing for litigation or enforcement, the relevant starting points are the offence provisions and permit conditions in the Regulations, the enabling statutory provisions in the Wildlife Act 1975 (not reproduced here) and the Secretary’s determinations and permit documents, which are likely to be central to any contested matter. Additionally, the Regulation’s cross‑references to other statutes (Fisheries Act 1995, Prevention of Cruelty to Animals Act 1986, National Parks Act 1975) indicate areas where multi‑statutory legal questions may arise in litigation.

The Regulations are detailed but contain several practical and legal pitfalls that practitioners and operators should note. Below are specific “gotchas” grounded in the text.

Multiple spatial regimes and overlapping terms. The instrument uses “caution zone” radii (reg 5) alongside “prescribed minimum distances” (Part 2) and permit‑specific approach distances (Part 5). Permit holders operate under Part 5, which can override default minima (note at reg 9 and reg 28 note). Confusion can arise when operators rely on a single rulebook; in practice they must reconcile the caution zone definition with species‑specific minima and, for permit holders, the permit conditions.
“Whale” includes dolphins in the Act but the Regulations adopt a separate “dolphin” category. The note in reg 5 states a “whale” includes a dolphin under the Act, yet regs 9-10 and others treat dolphins and non‑dolphin whales differently for approach distances. This requires careful reading: statutory definitions in the Act and the Regulations’ sub‑classifications both matter.
Regulated aircraft and remotely piloted devices. Reg 5 defines “regulated aircraft” to include remotely piloted devices. The Regulations thus bring drones within the aircraft rules (for example, reg 7 prescribes vertical distance; reg 20 prohibits flying over animals or causing their shadows to fall over them). Practitioners should not assume small drones are outside the rule set.
Prohibited vessel list is broad and includes remotely‑operated water craft. “Prohibited vessel” includes personal motorised water craft and remotely‑operated water craft (reg 5). Operators launching tenders, remote model boats or unmanned craft must check whether those craft are captured and hence subject to approach prohibitions (reg 8, 12).
Narrow waterways exception is context sensitive. Several provisions reduce distances in narrow waterways, with “narrow waterway” defined as any part less than 300 metres in width and examples given (reg 5 definition; regs 9-10, 21(11)). Operators in estuaries and confined bays must be ready to apply the narrow‑waterway rules and the safe passage exceptions.
Permit‑holder obligations are prescriptive and granular. Whale swim permits impose multiple operational constraints (reg 29): limits on approaches per tour/day, prohibition where calves or mating signs are present, mermaid line usage, limits on participant numbers and strict vessel gear rules (neutral gear except to avoid damage). Non‑compliance with even a technical condition may be enforceable.
Recording and timelines are strict. Monthly returns must be kept in the form provided and submitted to the Secretary by the 14th day of the following month (reg 33(6)). Returns must include specific time and location details (reg 33(2)-(3)). Failure to submit or to make returns available is itself an offence (reg 33(1), (6)-(8)). The Secretary may require electronic forms (reg 34), creating potential technical compliance demands.
Exceptions are fact‑sensitive. The Regulations create multiple exceptions for authorised officers, POCTA inspectors, commercial fishers, port maintenance personnel, research under the National Parks Act and emergency services (regs 11, 15, 16(6), 20(5), 23(4), 24(3)). Establishing that a particular activity fits an exception will often depend on documentary proof of a licence, authorisation or specific task order.
Secretary and Minister discretions. The Secretary determines sanctuary zones and seal breeding colony limits (regs 16-17); those determinations must be gazetted and may refer to plans lodged in the Central Plan Office. The Minister may also suspend the Logan’s Beach exclusion (reg 19(3)). Operators must monitor Gazette notices and plan registration to know spatially where rules apply.
Cultural and research carve‑outs are narrow. The traditional owner exception (reg 24(4)) applies only where a member touches a dead marine mammal while carrying out an agreed activity under a traditional owner group agreement and on land covered by the agreement. It does not create a general cultural exemption to approach or contact rules, and it was introduced by the 2022 amendment, which may limit transitional awareness.
Examples are statutory. The endnotes confirm that examples, diagrams and notes form part of the Statutory Rule. The lists of signs of disturbance and mating behaviours (regs 21(7) and 29(1)(d) examples) are therefore part of the legal text and can be relied upon by enforcement authorities; they are not mere guidance.
Monetary exposure is tied to fee/penalty unit values. Fees and penalties are expressed in units and the monetary consequences vary with Treasury values. Endnotes give values for 2022, but values can change annually, altering the real cost of non‑compliance and of permits.
Schedule 1 map reliance. The Logan’s Beach Exclusion Zone is defined by Schedule 1, but the photo/plan is not reproduced here (Schedule 1 displays a placeholder). Practitioners must consult the Gazette/official plan to determine exact boundaries before assuming compliance.

Each of these points can produce practical confusion or enforcement exposure. The remedy is granular operational planning: check Secretary determinations and Gazette notices, maintain documentary proof of licences/authorisations where exceptions are relied upon, and ensure records meet the exact fields the Secretary requires.

Compliance is a mix of legal, operational and record‑keeping actions. Below is a practical checklist based on the Regulations’ obligations, with references to the controlling provisions. The checklist is organised around prospective operator tasks and public behaviour adjustments.

For commercial operators (whale watching aircraft, vessel tours, whale swims, seal tours)

Check permit status and apply if required. The Regulations require a permit for whale watching tours (aircraft and vessel), whale swim tours and seal tours under the Act, and set prescribed fees (reg 32). Confirm which permit type is required and the annual fee units: 26 fee units for many permits, 121 fee units for whale swim permits (reg 32). Apply under the Wildlife Act sections referenced in regs 27-31.
Ensure the permit specifies the tour vessel/aircraft. “Tour vessel” is the vessel specified in the permit (reg 5). Ensure documentation and insurance align to the vessel specified in the permit.
Public information and signage duties. Display conditions and the Regulations on the permit‑holder’s website (reg 28(1)(a), 31(a)). Post signs in locations where customers will see them on vessels and aircraft (regs 27(b), 28(1)(d), 31(d)). Verbally brief customers about the Regulations and permit conditions before entering caution zones or approaching seals/breeding colonies (regs 28(1)(e), 31(e)).
Supervision and staffing. Appoint tour supervisors and ensure all non‑employees are under direct supervision at all times during tours (reg 28(1)(f), 31(f)). Train employees on distance rules, signs of disturbance and emergency procedures.
Operational rules to embed. Integrate the specific operational constraints into standard operating procedures: maintain the prescribed approach distances unless your permit provides otherwise (regs 7-11, reg 28); adhere to speed caps in caution zones and avoid sudden manoeuvres (reg 21(5)-(6)); do not come between mother and calf/pup (reg 21(3)); withdraw if disturbance signs appear (reg 21(7)); observe maximum cumulative time in whale caution zones (reg 28(1)(m): 60 minutes per tour, 120 minutes per day) and vessel separation rules (reg 28(1)(k) and reg 21(10)).
Whale swim specifics. For whale swim permits, implement mermaid line procedures, ensure the number of swimmers does not exceed limits (reg 29(1)(f)-(o)), do not conduct swims in sanctuary zones (reg 29(1)(a)), and be prepared to abort and retrieve swimmers immediately if calves or mating signs are detected (reg 29(1)(c),(d),(r),(s)). Ensure vessel is in neutral gear during swims except to avoid damage (reg 29(1)(k)).
Seal tour conditions. For seal tours, respect tour operator exclusion zones inside declared seal breeding colonies, avoid caves where seals occupy them, and maintain 5 knot speed limits and smooth navigation in breeding colonies (reg 31(h)-(n)).
Record‑keeping and returns. Keep monthly returns in the form provided by the Secretary and submit them by the 14th day of the following month (reg 33(1), (6)). Record required tour information while on the tour: supervisor name, passenger numbers, start/finish times, times entering/leaving caution zones or aircraft passes over whales (reg 33(2)-(3)). Make returns available to authorised officers upon request (reg 33(7)-(8)).
Adopt reliable data capture practices. While the Regulations do not mandate a particular technology, the return fields (times, locations, species, approaches) make GPS‑timestamped logs, vessel tracking, and documented supervisor checklists practical compliance tools. The Secretary may require electronic submission (reg 34), so ensure systems can produce the required electronic formats.
Website and customer communications. Post permit conditions and Regulations on the permit‑holder’s website (reg 28(1)(a), 31(a)), and provide pre‑tour briefings to customers (reg 28(1)(b), 31(b)). Record that briefings were given as part of compliance documentation.

For recreational vessel operators, pilots, drone operators and the public

Know the distances and buffer rules. For aircraft keep the vertical distances and no‑hover rules in mind (reg 7, 20). For vessels and swimmers be aware of the minimum approach distances and the caution zone definitions , they differ by species and context (regs 5, 9-14, 22). For dogs, do not allow dogs to enter seal caution zones or swim zones near whales and maintain leash rules where passing (reg 26).
Avoid prohibited vessel types near marine mammals. The Regulations list prohibited vessels (reg 5) and limit their proximity to whales and seals (regs 8, 12). If you use personal watercraft, underwater scooters or remote craft, assume the prohibited vessel rules apply.
Do not feed, touch, or make loud noise in caution zones. Feeding, touching, and loud or sudden noise in a caution zone are all offences with 20 penalty units attached (regs 23-25).
Observe declared areas and seasons. Do not enter Logan’s Beach Exclusion Zone between 1 June and 31 October (reg 19(1)), nor enter seal breeding colonies when declared (reg 18(1)). Check the Gazette and Central Plan Office for the Secretary’s determinations on sanctuary zones and seal breeding colonies (regs 16-17).

For everyone relying on exceptions

Maintain documentary proof. If acting under a commercial fishery licence, a permit, a port manager engagement or under the direction of an authorised officer, maintain documentary evidence of the licence, permit or engagement to rely on the explicit exceptions set out in regs 11, 15, 16(6), 18(3) and others.

Administrative compliance tips

Monitor Gazette and Secretary determinations. Sanctuary zones and seal breeding colonies are created by Gazette determination (regs 16-17). The Minister can temporarily suspend the Logan’s Beach exclusion via Gazette instrument (reg 19(3)).
Budget for fees and potential fines. Use the fee‑unit and penalty‑unit provisions in the endnotes to budget for permit fees and the monetary exposure of penalties (endnotes give 2022 values).
Train staff and document procedures. Given the prescriptive permit conditions and the risk of inspection, document staff training on signs of disturbance, approach angles, emergency procedures and return preparation.
Plan for electronic submission. The Secretary may require electronic recording and submission (reg 34). Prepare IT and record management systems capable of producing required electronic returns and retaining historical records for inspection.
Consult permit wording. Permit conditions may set distances greater than the default minima; ensure actual permit documents are reviewed and complied with in addition to the Regulations (reg 28 note).

By operationalising these steps , ensuring you have the correct permit, embedding the Rules into operations, keeping the precise records required, and monitoring Secretary determinations and Gazette notices , entities subject to the Regulations will position themselves to meet the prescriptive obligations set out in the instrument.

Wildlife (Marine Mammals) Regulations 2019

Plain English Summary

Deep Dive

What it does

Current sections

Wildlife (Marine Mammals) Regulations 2019

Source text: opening excerpt

1 Wildlife (Marine Mammals) Regulations 2019

Main concepts

Who it affects

Key duties and rights

Penalties and enforcement

How it interacts with other laws

Amendment history

Litigation history

Gotchas

How to comply