On 28 September 2019, the Minister for Primary Industries and Regional Development announced a full ban on snapper fishing in the Spencer Gulf, West Coast and Gulf St Vincent until 31 January 2023. The move effects all commercial, charter and recreational fishers. Once the ban comes into place, commercial and recreational fishers in the South East may continue to take snapper, subject to the usual seasonal bans (November-January each year) and a new total allowable catch limit.
As at the time of writing, the Government has taken no regulatory action to implement the proposed ban. However, information provided by PIRSA as part of the announcement states that ‘initially the changes will be implemented through a Notice issued under section 79 of the Fisheries Management Act 2007…until other regulations are implemented.’
The Fisheries Management Act 2007 (the Act) controls fisheries management, including for commercial and recreational fishers, in South Australia. Section 79 of the Act empowers the Minister, by notice in the Government Gazette, to declare that it is unlawful for a person to engage in a fishing activity of a specified class during a specified period. Such a declaration can only remain in force for up to 12 months, and may only be renewed for a further period not exceeding 12 months. It is worth noting that such administrative action could potentially face a legal challenge.
Penalties for breaching a direction given under section 79 include an expiation fee of $315 and a fine of up to $20,000 (for a third offence).
Currently on 1 October 2019, no notice has been published in the Gazette. However, as the usual seasonal ban commences on 1 November 2019, it may be that no action will be taken until January 2020.
Further, given that the Minister has said the ban is intended to last for three years, additional regulatory changes will need to be implemented. The Act provides a number of ways in which this could be done and we will need to wait and see how the Government chooses to proceed.
That is a tricky question and, for the reasons explained above, in part we cannot know the answer to that until the longer-term changes are actually implemented. However, at this stage the Government has not suggested that compensation will be available. Further, given the current regulatory framework, it seems that the likely answer is ‘no’. There are a few reasons for this.
Firstly, the Act does not expressly provide for compensation to licence-holders when a total ban is implemented. The Act does contemplate compensation to persons whose licences or licence entitlements are compulsorily acquired in order to reduce the share allocated to the commercial fishing sector and increase the share allocated to another sector (e.g. recreational or charter). However, those provisions do not appear to apply when the overall allocation is being reduced (or in this case, banned completely).
Further, it appears that the ban on snapper fishing will not be a compulsory acquisition as the Government is not seeking to ‘buy-back’ licenses (or allocations). Rather, it is simply revoking the right to fish for one of the more than 60 species listed as part of a commercial marine scalefish fishery (MSF) licence. Currently, MSF licence-holders account for approximately 96% of all commercial fishing in South Australia and snapper accounts for approximately 30% of MSF production (down from around 60% in 2010).
As a result, although other species may still be taken, the (temporary) removal of snapper from the MSF licence will likely have a significant financial impact on commercial fishing in South Australia. Given this, the impact is comparable to the legalisation of rideshare companies – the government did not abolish or compulsorily acquire taxi licences, it just implemented legislation which significantly de-valued them. In that case, the compensation offered by the then-government was both voluntary and relatively low.
It should also be noted that the snapper ban is different from the introduction of the Marine Parks as that legislation specifically provides for the payment of compensation.
As set out in its press release, the Government has offered certain incentives, including a 50% reduction in licence fees. However, as no changes have yet been implemented, it is difficult to know who will be able to apply for the assistance package. It appears from the wording of the press release that the reduction will not be open to all MSF licence-holders but only those that can show they are ‘impacted’ by the ban. That may require each licence-holder to provide evidence of historical reliance on snapper in order to receive the fee-relief. It is also not clear if or how that relief may apply to charter operators.
For the reasons set out above, we will need to wait to see how the Government implements the ban and whether it chooses to offer any further assistance or compensation.
However, those affected should review any commercial contracts they may have in place. For example, charters operators may have already taken bookings or deposits for next year, or commercial fishers may have ordered new equipment or entered into new supply contracts for the next season.
Changes to government regulations will usually be taken to frustrate a contract, but professional advice should be sought to determine what each party’s obligations are under the contract.
This article was written by Partner, Victoria Gilliland.