Chapter 9

The following table gives a guide to the principal legislation you may need to refer to.

The commercial fishing industry makes a valuable contribution to the Tasmanian economy and to regional employment. However, in the past a lack of regulation resulted in over-exploitation of certain fish stocks.

There has been community concern that natural marine ecosystems are being irretrievably damaged through over-exploitation. As a result, new legislation has been enacted and updated to keep abreast with research and community expectations.

The fishing industry has necessarily had to face a reduction in the fishing of some over-exploited species, in order to protect its long term future.

Protection of the marine environment is generally regulated under the Living Marine Resources Management Act 1995 (Download it). This Act is part of the state's Resource Management and Planning System which provides opportunities for public participation (☞ Go to Chapter 4)

This Act has overriding implications for both commercial and recreational fisheries, as well as for aquaculture, marine reserves, marine pollution, release and importation of fish, disease and pests and other marine habitat protection issues. Under the Act, a fish is defined to include aquatic reptiles, all invertebrates, fish and sharks, marine plants and even protozoa and bacteria (Section 4).

The marine environment is extremely complex, and fisheries management has to straddle commercial issues with many competing recreational, social and environmental concerns. Effective management of the industry requires both legislation and management strategies, including community education.

The Act and its regulations set minimum sizes of fish that can be taken, gear that is allowable, total allowable catches, and bag limits for fisheries at risk of over fishing. The commercial fishing industry must comply with strict quotas and licensing regulations.

The Act also provides for various licences which must be obtained before anyone can catch, process or handle fish commercially. The court may make an order suspending or cancelling a licence if the licence holder does not comply with the conditions of the licence (section 90).

Sections 174 to 201 of the Act give wide power to fisheries officers to enter and search premises, vessels and fish processing plants, detain vessels, make arrests and seize fish catches.

Persons who breach the Act risk the forfeit of not only their fish catch, but their equipment and fishing vessel as well (section 225).

Section 125 of the Act makes it an offence to allow any introduced fish to escape into state waters (unless you have a special permit). Offenders risk a maximum fine of $130,000.

Under the Act, DPIPWE prepares draft Fisheries Management Plans which set out the rules for each fishery. Management plans for a specified fishery can address a wide variety of matters, such as prohibitions on the taking of particular fish, fishing seasons, where fishing vessels can be unloaded, and measures to limit 'accidental catches' (also called ‘bycatch’).

Once a Draft Management Plan has been prepared, public notice is given and any person can make a written representation within the time period set out in the notice (no less than 60 days). The Secretary must consider all representations and may make changes to the draft plan to address the concerns raised by the public before submitting the plan to the Minister. Before approving the plan, the Minister must be satisfied that the plan promotes and develops commercial or recreational fishing without detriment to the fish habitat and environment.

From time to time, Fisheries Management Plans can be reviewed. The public will be notified of a proposed review and can make representations. Where urgent action is required to protect fish stocks, the Minister can make a ministerial order amending a Fisheries Management Plan without going through a formal review process. The order must be published in the Gazette (See Section 49).

Generally speaking, Tasmanian laws apply to all waters within 3 nautical miles of Tasmanian coastline and Commonwealth laws apply outside that limit.

However, the Offshore Constitutional Settlement (OCS), agreed in the early 1980s, allows the Commonwealth and States to enter into more practical arrangements for managing some major fisheries. In general, States retain responsibility for day-to-day management of all recreational fishing. Some Commonwealth marine areas are also subject to state control under OCS arrangements.

The Commonwealth is responsible for the migratory tuna fisheries (including southern blue-fin tuna, yellow-fin and big-eye), the central zone of the Bass Strait Scallop Fishery and the Southern Shark Fishery. Commonwealth legislation also provides protection for nationally listed threatened and migratory species

In addition, a range of Commonwealth laws attempt to give effect to various international treaties – eg, to protect and manage fish resources, to protect the Antarctic environment, to regulate sea dumping, to protect endangered species of fish and marine life and to control pollution by ships (Marpol convention).

☞ Go to Chapter 15 for more information about federal species protection laws and the application of Commonwealth laws to marine conservation.

• Environment Protection and Biodiversity Conservation Act 1999
• Environment Protection and Biodiversity Conservation Regulations 2000
• Fisheries Management Act 1991
• Antarctic Marine Living Resources Conservation Act 1981
• National Environment Protection Council Act 1994

In the past ten years fish farming (or marine aquaculture) has become a major growth industry in Tasmania and a highly profitable one. Over 140 marine farms have sprung up around our coastline, and fish farming now comprises over 2,000 hectares.

Species being farmed are principally Pacific Oysters, Atlantic Salmon and Ocean Trout (all introduced species) as well as scallops, mussels and abalone. Farming of other marine species has also been mooted.

A marine farming lease conveys a right of exclusive occupation of a marine area, which may previously have been accessible to the general public, to the leaseholder. In this way, marine farming can change the use and amenity of coastal and estuarine waters.

Given the extent of potential changes in Tasmanian coastal and estuarine waters, many communities have raised concerns about the impacts of marine farming. Marine farming development plans have been approved for the areas in which marine farming occurs within Tasmania. These include the Huon River and D’Entrecasteaux Channel, Pitt Water, Pipe Clay Lagoon, Tasman Peninsula and Norfolk Bay, Great Oyster Bay and Mercury Passage, Georges Bay, the Tamar River, Port Sorell and the Far North West (Duck Bay, Big Bay and Montagu) Trumpeter Bay and Macquarie Harbour.

Community concerns include visual disturbances, ecological consequences on the marine environment, including the spread of exotic 'feral' species, potential disease outbreaks in the marine environment, damaging effects on adjacent national parks, and alienating other users of the sea (swimming, boating etc).

The Marine Farming Branch of the Department of Primary Industries, Parks, Water and Environment.

The rapid growth of marine farming in Tasmania in the 1990s resulted in specific legislation being established to manage this activity. Unlike other industries, marine farming is not subject to general planning controls; it is assessed, approved and regulated under a different process.

The Marine Farming Planning Act 1995 shares the Objectives of the Resource Management and Planning System (described in Chapter 4), including encouraging public participation. However, concerned citizens have more limited appeal rights in relation to marine farming than some other land-based developments.

The MFPA provides for the development of Marine Farming Development Plans. These plans identify zones in which marine farming is a permitted activity. Outside of these zones, marine farming is prohibited.

Under the Act, the public are given an opportunity to comment on Draft Marine Farming Development Plans (see below). The process for developing (or amending) a plan is similar to the process in place for land-based planning schemes under the Land Use Planning and Approvals Act.

If the Marine Farming Planning Review Panel believes that current or future land-based activities in the area may have a negative impact upon marine farming, the Panel can request the Tasmanian Planning Commission to prepare an amendment to the local government Planning Scheme to address these concerns.

The Marine Farming Planning Act 1995 purports to protect the marine environment and give stakeholders a say in marine farming development, largely through the development and implementation of Marine Farming Development Plans (MFDPs).

There are currently fourteen MFDPs in force for Tasmania’s coastal marine and estuarine waters. These plans are available from the Marine Farming Branch of DPIPWE or from its website www.dpipwe.tas.gov.au

Each MFDP identifies areas suitable for marine farming and incorporates these areas into marine farming zones. Within a marine farming zone there may be a number of farms, existing or potential, that may grow a range of species.

• a description of all marine farming zones in the plan area;

• a description of the maximum area of the zone that can be leased;

• an environmental impact statement (EIS). The level of information in the EIS will vary depending on the scale of the proposed plan and the public interest in the proposal. At a minimum, the EIS must address the potential environmental impacts of the proposal and make sure that the draft plan is consistent with the objectives of the RMPS.

• draft management controls.

• species that may be grown in each zone;

• other activities that may take place in the area;

• environmental testing that must be carried out;

• protecting or conserving the marine area (including water quality limits and restrictions on noise, light and disturbance); and

• matters that must be considered before issuing a marine farm lease and conditions that must be attached to a lease.

Draft Marine Farming Development Plans are submitted to the Marine Farming Planning Review Panel for certification. Following certification, the draft plans are released for public comment for at least 2 months.

After considering the draft plans, the EIS and any representations received, the Panel decides whether to approve the Marine Farming Development Plan.

Marine Farming Development Plans have now been completed for all 14 regions of the State under consideration. Click HERE to see details of current marine farm plans.

In the event that a new plan is to be developed, the Department holds public meetings to gather information about the current uses and values of the area. Notice of public meetings is given in regional newspapers.

It is really important to attend such meetings because it is an important opportunity to identify other water users and stakeholders in the area.

At these meetings, the Department will outline its proposed draft plan and the public will be invited to respond, either orally or to follow up in writing, describing the ways they may use the area (eg for recreational or commercial fishing, sailing or water skiing etc).

After initial consultation, the Department or a planning authority may prepare a Draft Marine Farming Plan for public exhibition.

Once a draft plan is developed, it is released for public exhibition for at least two months. There will be a public notice informing the community where the draft MFDP is available and how to make representations in relation to the plan.

Generally, the draft plans are available on the internet. If you do not have access to the internet, you will be able to inspect the draft plan at a DPIPWE office or to purchase a copy.

It is a good idea for your representation to draw attention to any requirements in Part 3 of the Marine Farming Planning Act 1995 (especially, Sections 21 – 24), that have not been addressed in the draft plan. For example, you may believe that an identified Marine Farming Zone will not be sustainable because of the impacts on seagrass species, that mitigation measures proposed for environmental impacts are inadequate, that additional monitoring should be required or that alternatives to the proposed marine zones should be discussed.

The Department reviews all written representations and prepares a report to the Marine Farming Planning Review Panel. This report must contain a copy of the written representations received and the Department’s response to these representations.

The Panel must consider all representations and must hold public hearings if one of the representors has requested this. If you made representation, you may be invited to attend the hearing and speak to the Panel. The hearings are generally fairly informal, and usually there will be an opportunity to ask questions from the floor.

The Panel will consider all submissions, the provisions of the legislation and the State Coastal Policy and decide whether to approve the Draft Marine Farming Development Plan.

There is no specific right of appeal if you do not agree with the Panel’s decision to approve a Marine Farming Development Plan.

If you believe that the Panel acted unlawfully, you could seek orders in the Supreme Court for judicial review of the Panel’s decision. For example, you may be able to seek judicial review if:

• your evidence highlighted the deficiencies in the Environmental Impact Statement, and the Panel did not give weight to it, or

• you were not given the opportunity to comment on other scientific evidence presented to the Panel by the proponents of the MFDP.

Please note: Land based facilities associated with marine farming, such as on-shore sheds, are controlled by local councils and are subject to normal planning and pollution controls as prescribed under LUPAA and EMPCA. (☞ Go to Chapters 5 and 6 for information)

Marine farm leases give leaseholders exclusive right of access to the lease area for up to 30 years. The lessee can also apply for renewal of the lease.

Once a lease has been issued, you may still need a licence to carry out marine farming activities. Licensing of these activities is regulated by the Living Marine Resources Management Act 1995.

If you are concerned about the possibility of the release of pests, such as feral Pacific Oysters, from an approved marine farm, contact DPIPWE. Under the Living Marine Resources Management Act, DPIPWE must act to minimise the outbreak of disease and control pests. To achieve this, DPIW can issue control orders in relation to marine farms.

It is your democratic right to lobby outside of the statutory planning processes prescribed by the Marine Farming Planning Act 1995. Many concerned citizens choose to lobby in order to get their message heard. To be most effective, you will need to start lobbying as soon as possible after you hear about a proposed Marine Farming Development Plan.

• Write letters to the Minister and Shadow Minister for Primary Industries and to the Marine Farming Branch of DPIPWE. You can also write to your local politicians, councils and newspapers.

• Get together with other concerned people in your area to lobby jointly.

• Contact other groups around the state who have had experience in lobbying to identify what worked for them.

• Inform the local and extended community about what is being proposed, so as to gain public support for conservation of your waterway.

• The Panel's focus is on environmental and other impacts of the proposed development. You should collect reliable scientific information as to the environmental impacts of the proposal – including expert evidence on such issues as noise, water currents, invasive species and suggested placement of nets.

Marine Protected Areas (reserves) have essentially the same purpose as land-based national parks and reserves: setting aside habitats to protect natural ecosystems and plant and animal species.

Marine reserves are also very important to the long term survival of the fishing industry, as an aid to protecting fish stocks and breeding grounds.

Although Tasmania has extensive areas of land within its reserve system, a much smaller percent of its coastal waters have been protected to date – despite having a very high biological diversity.

There has been strong commercial antagonism to setting aside marine reserves. At present Tasmania lags behind the rest of Australia, having by far the smallest area of marine reserves, and also the lowest proportion of its waters protected.

For a long time, only a handful of Marine Protected Areas were established around the Tasmanian coastline – located at Governor Island, Tinderbox and Ninepin Point, Maria Island, Port Davey - Bathurst Harbour (17 000 ha) and the Kent Group of Islands. The last three are marine extensions of terrestrial national parks.

In 2009, the government declared 14 new marine reserves following some of the Commission's recommendations in relation to its review of the Bruny Bioregion. All current marine reserves are listed on the DPIPWE website.

A larger reserve has also been declared around Macquarie Island in the far Southern Ocean.

Outside the ‘3 nautical mile zone’ the Commonwealth can make reservation decisions. The little known Sea Mounts Marine Reserve (60 km south of Hobart) was declared by the Commonwealth government in 1999. The reserve was revoked in 2007 and formally incorporated in the large Huon Commonwealth Marine Reserve.

Recognising the failure to adequately reserve marine habitats, all states and the Commonwealth are now gradually working towards a National Representative System of Marine Protected Areas, to ensure that sea habitats are adequately protected.

In Tasmania, moves towards greater protection of marine areas are very slow. However, the Marine and Marine Industries Council (comprising stakeholders and experts) have finalised a Marine Protected Areas Strategy (Download it HERE).

Under the Strategy, the Tasmanian Planning Commission is responsible for undertaking public inquiries to identify and select new marine protected areas (under the process set out in Part 2 of the Public Land (Administration and Forests) Act 1991). These inquiries are initiated by the Minister for Planning and involve extensive public consultation.

For more information on the process for developing a marine reserve, visit this DPIW website. For information about the Public Inquiry process, visit the Planning Commission website.

Marine reserves can be created under the Living Marine Resources Management Act (Part 5) (Download) or the Nature Conservation Act (Download). You will need to look at both Acts to find out what provisions apply (see Chapter 7 for information about species protection under these Acts).

There are several different types of reserve areas with different rules and management strategies, depending on the purpose of the reserve and the values being protected. Management rules generally provide for habitat and species protection whilst allowing certain activities to take place (such as diving).

Marine reserve rules are enforced by the Marine Police, and by Parks and Wildlife officers.

☞ Go to Chapter 7 to see how Tasmania's coastal zone is generally managed.

Some reserves are 'no-take' reserves, whilst others allow certain types of fishing in certain areas. Generally, within a dedicated marine reserve, you must not:

• collect any living or dead materials

• harm or remove plants or animals

• fish or set nets or pots within the reserve.

For the larger Kent Group and Port Davey / Bathurst Harbour marine reserves, there are ‘no take’ zones and restricted fishing zones where you can collect abalone and rock lobster and carry out line fishing.

Fishing in marine reserves is controlled by the Fisheries Rules 1999 under which zones are identified allowing fishing or restricted fishing within the marine components of the Kent Group, Maria Island and Southwest National Parks.

To see what activities are permitted and prohibited in each of the Tasmanian marine protected areas, go to this DPIPWE website

DPIPWE also issues permits for people who are undertaking research in Marine Protected Areas. Fishing is also restricted in a number of Research Reserves around Tasmania, so that research and monitoring can take place in those areas.

Affected communities are consulted in the early stages.

Then there is formal public consultation, when a draft management plan is advertised for comment. Any person may submit a written representation in relation to the draft plan within the period set out in the notice.

- then all representations will be forwarded to the Commission to consider. The Commission may hold a public hearing before making a recommendation report to the Minister in relation to the draft Management Plan.

- then all representations will be forwarded to the Secretary to consider before making a recommendation report to the Minister.

Once a management plan has been signed off by the Governor and published in the Gazette, there are no legislative avenues for appeal. The plans are generally reviewed after 10 years.

To find out about draft and finalised Marine Reserve Management Plans, contact the Marine Resources Branch or the Parks and Wildlife Service (Ph 6233 6487). Click HERE to see the list of current Management Plans.

The Commonwealth government declares its own system of Marine Reserves in nationally controlled waters. Click HERE to find out more about reserves in South East Australia.

Pollution of the sea is mostly regulated by general pollution laws, including pollution from land-based sources, such as sewage outfalls.

The Pollution of Waters by Oil and Noxious Substance Act 1987 deals specifically with discharges of oil from ships and other matters. This Act gives effect to the international MARPOL convention on marine pollution.

There have been very few prosecutions in Tasmania for marine pollution.

☞ Go to Chapter 6 for information about pollution laws and what to do if you are concerned about pollution, such as contacting the state pollution hotline on 1800 005 171.

Pollution outside of the 3-mile zone is controlled by the federal government under the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 and the Environment Protection (Sea Dumping Act) 1981.

Under new regulations, dumping of wastes in sea water is the responsibility of the federal government, except within bays and estuaries (from low water mark).

Legislation sets out heavy penalties for offences in marine protected areas.

However, the policing of the sea is very difficult so public assistance in reporting possible illegal activities is vital to fisheries and wildlife inspectors.

• For fisheries offences you can contact the Marine Police on freecall 1800 055 555.

• If the area is a marine reserve, you should contact a Parks & Wildlife ranger at their nearest station.

• If waterway pollution is involved you should contact the Environment Division on freecall 1800 005 171.
  ☞ Go to Chapter 6 for taking action regarding pollution.

• If the problem has implications for coastal policy, also contact the Coastal and Marine Program on 6233 3963.
  ☞ Go to Chapter 7 for information about coastal management.

• Try to find out as much as you can about the activities that are occurring, without putting yourself at risk.

• Take photos and videos for evidence.

• Record vehicle and boat registration numbers if possible.

• Make a log of how often you see the activity occurring.

• ☞ Go to Chapter 13 for more information about taking action.

• Fisheries Branch: (DPIPWE)
  PO Box 44, Hobart 7001 Ph: 6233 2044 Fax: 6233 3065

• Marine Farming Branch: (DPIPWE)
  PO Box 44, Hobart 7001 Ph: 6233 3370 Fax: 6233 3065
  Email: MarineFarming.Enquiries@dpipwe.tas.gov.au

• Parks and Wildlife Service Ph 6233 6487

• Environment Division:
  PO Box 44A, Hobart 7001. 134 Macquarie Street, Hobart 7000 Ph: 6233 8011

• Tasmanian Planning Commission
  144-148 Macquarie Street, (3rd Floor) Hobart 7000 Ph: 6233 2795
  Email: enquiry@planning.tas.gov.au

• Environmental Defenders Office Website
  131 Macquarie Street, Hobart 7000 Ph: 6223 2770 Fax: 6223 2074
  Email: edotas@edo.org.au

• Tasmanian Conservation Trust
  Ph: 6234 3552 Fax: 6231 2491
  Email: tct6@bigpond.com.au

• Living Marine Resources Management Act 1995

• Marine Farming Planning Act 1995

• Pollution of Waters by Oil and Noxious Substance 1987

• National Parks and Reserves Management Act 2002

• Nature Conservation Act 2002

• Inland Fisheries Act 1995

• Threatened Species Protection Act 1995

• State Coastal Policy 1996

• State Policy on Water Quality Management 1997

You can download the above Acts from: www.thelaw.tas.gov.au/

• Environment Protection and Biodiversity Conservation Act 1999

• Wildlife Protection (Regulation of Exports and Imports) Act 1982

• Protection of the Sea (Prevention of Pollution from Ships) Act 1983

• Environment Protection (Sea Dumping Act) 1981

You can download commonwealth Acts from www.austlii.edu.au/