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Abalone 60 Season Days And 5 Bag Limit

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#1 Ian Williams

Ian Williams


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Posted 01 September 2005 - 03:15 PM

Hi Everyone.

Here’s the latest I have to provide you with information regarding the Abalone Regulation Changes resulting from last years Regulatory Impact Statement.
It was written in Word with more embeded hyper-links to reference material beyond the ones that appear in this posting. To obtain the full benefit you will need to down load the original from here. (http://www.staff.vu....eAugust2005.doc).
This saga still hasn’t finished and has consumed an enormous amount of time. I’ve tried to condense a huge amount below and you still don’t have all of it. The quick summary after 18 months of follow up and research is this.

At the lower end, as recreationals you’re very good with a high level of compliance (95% or better- refer Rob Jolly’s presentation to AFC & RMFC) with the amount of abalone you take at 0.7% compared to 99.3% for the commercials;
Middle level poaching is down over the past 18 months (refer Rob Jolly, Dallas De Silva, Scott Falconer);
Only a small number of inner, shallow and easy access reefs are noted (“several inshore reefs” as referred to by Department of Environment and Heritage abalone assessment report, page 22 );
Fisheries officer numbers have doubled to 80;
1300FISH reporting is now available as an enforcement tool;
Abalone theft now is now an indictable offence with up to 10 years jail;
Marine Parks (love ‘em or hate ‘em) already help protect abalone stocks;
And last, of the “scientific” survey Fisheries referred to in the RIS, 22 of the 59 sample sites included water 2 feet deep (Ab Rec survey.zip).
Closure of a localised area specific to a known or temporary problem is a common tool used by Fisheries. However, local inner reef closure (excluding deeper richer areas) was not included as an alternative option within the RIS. This I believe, contravenes the Subordinate Legislation Act 1994.
‘For a regulation to represent the most efficient solution to an identified problem, it must not only be shown to be likely to yield benefits greater than the costs it imposes but also to yield greater net benefits (i.e. benefits less costs) than any of the feasible alternative approaches. It is for this reason the RIS must include cost/benefit analysis of not only the proposed regulation but of all the identified alternatives. (Italics mine)'.
This along with some of the information below will need to go to the Scrutiny of Acts and Regulations Committee, as well as the State Ombudsman. Any offers of help will be greatly appreciated in background or planning these steps. We will not succeed in overturning the legislation otherwise.

At the moment, the Minister has pushed ahead with his planned bag limit reduction from 10 to 5 and a 60 day season, for the 1st September, despite opposition from SDFV and VRFish. In essence, you’ve been done over badly by elements within Fisheries, the Abalone Fisheries Committee and a number of commercials.

The full details and changes are here at (http://www.gazette.v.../GG2005S165.pdf)

Dates are as follows (and not as we requested either). They wanted to meet the printers deadlines rather than obtain feedback. I personally think it’s a dog’s breakfast and pity the poor Joe Average when he gets booked. All dates inclusive
1,2 October 2005
29 Oct- 1Nov 2005
19,20 Nov 2005
3,4 Dec 2005
27 Dec 2005 – 29 January 2006
11- 13 Mar 2006
25,26 Mar 2006
14-18 April 2006
22-25 April 2006
27-28 May 2006

The main benefactors are the commercial sector who appears to have a disproportionate say in recreational regulations. They will be able to continue to take their full quota while our take can only go down by an enormous amount. Incidentally, fixed days such as the open season in Western Australia has resulted in drowning and near deaths as people push the limits when they can only fish on those days. For the minister’s sake, let’s hope it doesn’t happen here. http://www.postnewsp.../news/002.shtml

With the going price for a commercial licence valued at anywhere between 6-8 million dollars and there are 70 licence holders taking more than 99% of the ‘shared’ resource, I personally think greed and self preservation has got the better of a number of them, and Fisheries through the RIS and outcomes has catered to this at the expense of the recreationals.

Anyhow, here’s some thing you may not have known about the process or the abalone fishery.

I believe most damning and what most of you will not have known is the published RIS was not gazetted and while everyone thought the closing date was 27 October (as advertised and the minister’s press release), it wasn’t. Many of you would have received a submission closure notification email to that affect as well. However because of a mistake, Fisheries didn’t gazette the RIS. It was then secretly opened 8th November (5 days later) and closed 7 December to cover their mistake. (Gazettes found at http://www.gazette.vic.gov.au/ & search abalone for Nov 2004). I’ve been told, Recreational Fisheries Manager, Greg Hayes, is now saying he spoke VRFish’s executive officer about it but funnily enough I have already had an email from Ray Page, 2 months earlier, saying he was never informed. SDFV certainly weren’t told about it and I don’t think FCC were either. There is a bit more to this about submissions made after the first(?) closing date but confidentiality comes in with regards to AFC meetings (at which Dallas is also a member) and will need to wait for our Freedom of Information request to come back. As a hint, I will put it politely this way. When you talk to Greg Hayes, make sure you take notes at the same time. His recollection seems to change further down the track about details of conversations you’ve had.

There will also be a bit more to be investigated when the Fisheries Co-Management Council FOI request is processed. A submission was verbally requested, after the first publicized closing date, from the AFCs by Dallas D’Silva who was then Fisheries Senior Project Officer (Abalone) and also analyzing RIS submissions. This was correctly declined by the executive officer but the AFC then went ahead and wrote a submission at the meeting anyhow. This is despite the fact that a report had already be made by the FCC. The request to the AFC submission was then made to the executive officer via an email and accepted. At this stage I do not know if it went to the minister, FCC or Greg Hayes. However, forgive my suspicion but when an officer helps request, author, authorize and analyze, after the official FCC report has been done, alarm bells should ring as to his impartiality in processing RIS submissions. As stated, we will need to wait for our Freedom of Information request to come back. (FoI Request FCC.doc)

The requirement to change the Abalone Management plan was done the next day 9 November with the closing date 9 December. I’m not a lawyer so it would be nice if anyone can tell if the plan actually requires 60 days in which case they may have technically goofed again. http://www.gazette.vic.gov.au/

The consultation and RIS process as defined by legislation was there only as much as it fulfilled their legal requirements only with VRFish & SDFV. (see http://www.sdfv.org....oneRegsbad.pdf). We were told in no uncertain terms (let me be crystal clear on this), that recreationals were going to take a cut prior to the RIS being put out. Strangely we mostly ended up with what was submitted on a form letter. This was purporting to be and having spoken to other recreational fishermen, but written by a commercial asking for a bag limit 5 & a 60 day season. (Commercial Form Letters)

The data presented by Fisheries was misleading and preconceived to their above aims. (see corrected Chart on web for details) As an indication they promoted the success in curtailing poaching in 1999 by a 6 month ban applied to recreational. What they didn’t point out is over the same season, the commercial sector took an unprecedented amount of abalone from your Port Phillip Bay because of then higher prices for smaller abalone. (Page 17 FCC 2001-2002 annual report.)

They did not want a public workshop where the wider views of the recreational sector could be canvassed as part of the consultative process. (See AFC minutes when availabe)

Getting information or confirming data from fisheries was like getting blood out of a stone. (Hence we have a current FOI to Fisheries, download for a copy).

Dallas D’Silva will be the focus of allegations by me, with the support of some other recreational representatives with regard, to lying and mis-representation of data. It will be interesting to see what actions comes of this through a planned future meeting with the Director. As indicated above, but we now appear to have someone else in Fisheries changing their story, in light of the mistake in the RIS process and not informing the public at large. This could be interesting as well.

Despite the impression the Minister’s press releases or Fisheries may have led you to believe, the fishery is not under threat. The setting of quota has always made allowances for fish thieves and taken into account. I’m not against commercials having the successful enterprise that they do. Good luck to them. But when as a consequence you and I bear the brunt of being squeezed out of the fishery, to further benefit their multi million dollar industry, it starts to smell.

The Abalone Management in March 2002 (and as approved by Environment Australia) specifically stated no change to the season or bag limits. (See page 27 Abalone Fishery Management Plan 2002 “There is no closed season applying to blacklip. These arrangements are to remain unchanged.” And “These daily limits will continue to apply”. (Abalone FMP.pdf)

1999 was when Fisheries also tried to introduce abalone restrictions but it didn’t occur. It would be interesting to get this data as well.

Middle level abalone poaching has gone down in recent time so less a threat to abalone stocks. By the way, less a threat doesn’t mean more abalone in the water. This will ultimately go back to the commercial sector via increased quota, usually guided by the Abalone Fishery Committee. Fortunately, some of these members do provide expert advice to the Minister, and any commercial or monetary gain in a multi million dollar industry spread between 70 individuals, is put aside to the benefit of the 10,000 odd public recreational abalone fishermen. (They’ve taken gullible out of the dictionary too). (see FCC guidelines page9)

On the data provided so far, when the penalty statistics provided by fisheries are corrected for factors such as cutting foot, double the officers, specific targeting of the number of lower level (individual, family, cultural, etc.) groups would have decreased. I would like to prove this further but I am still waiting for a breakdown of infringements) to be provided since 9th June 2005 with three reminders so far to no avail. (RJ email extract)

On the concept of providing requested information, VRFish officially requested from the Director of Fisheries to show the link detailed in the ministers press release detailing large scale abalone bust and recreational involvement. Sadly this link has not yet been given to us but then it’s only been 12 weeks and yes it was given to Dallas D’Silva to handle. (Copy of letter is here)

As we speak, the current ‘historical’ stock estimates are in the process of being changed for the central zone. It seems portions of the commercial sector hugely understated their ‘official’ amount of abalone landed in early years. The details were revealed in an anonymous survey a long time ago so the tax man wouldn’t be interested now. However the prospect of bigger quota is always high on the agenda. Don’t worry as a recreational, you do not have a TAC allocation (as in crayfish), because your total take is so small. I quote the Abalone Fishery Management Plan to put into perspective the miniscule effect we have on abalone. “The recreational catch is very small by comparison with the commercial component of the fishery”. (page 26 Abalone FMP.pdf).

As I stated above, because of an oversight, they forgot publish the RIS in the government gazette. While everyone can make a mistake, it’s a bit sad and certainly looks like a cover up when a recreational manager is recently saying he had told VRFish of the mistake. I mention this again to reinforce the fact that openness from Fisheries has certainly not been forthcoming. Indeed, this is the same person, for those who didn’t have the opportunity to witness it at the Bell Hotel meeting, who gave his answer to a question from me, “I’m not going to give you any more ammunition to fire back. I’m not stupid”. In my opinion, this now encroaches into the code of conduct for public servants and needs to be addressed as a separate issue. I had stated plainly and in writing to them from the start that their responses and actions were to be scrutinized, as well as being put out to the public. Somehow I don’t think they took me seriously and we will pursue this even though the RIS is “done and dusted, move on” to use their words. (Email extracts)

Last but not least is the scientific survey referred to in the RIS. Paid for by FRAC money this is a little bit of an embarrassment. Offered as proof of declining stock in shallow waters (where commercial fisherman never go but everyone’s seen them), due to over fishing compared to deeper (where recreationals never go obviously because we’re now going to be locked out). While it may be construed they did find less abalone, it’s biased. Of the 54 sample readings taken at the sites 23 of these were in 2 feet of water. Some would have been high and dry when the tide went out. At no time did the depth exceed 13 feet. By decree, the survey sites needed to be close to car parking, easy access and shallow water. The difference between these locations and deeper, harder access and further remote reefs would be the same for any type of fish or harvest. The principal would be the same if you were picking mushrooms or blackberries or anything else that comes to mind. Ask any fisherman, diver or hunter about seeking less popular or isolated locations. Don’t ask Fisheries though as this principal appears lost to them and worthy of banning us access. To use the above survey in the RIS only proves the lack of science in using such a comparison as evidence, and reflects badly on Fisheries management. I say this with respect to abalone scientists Harry Gorfine’s excellent work but this has been taken and completely used out of context by Fisheries to promote their own agenda. I also understand it will not to be published formally due to the lack of quality data.

While I have not put all the emails or information regarding the RIS process or staff conduct out to the public, I am willing to provide them on an individual basis to those who specifically ask or have an interest in helping. Just send me your request and reason to Ian.Williams@vu.edu.au .

Thanks and bye for now

Ian Williams

Edited by Ian Williams, 01 September 2005 - 03:18 PM.

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#2 glen


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Posted 01 September 2005 - 04:53 PM

Hi Ian,

FOI Requests

Thanks for that update on the regulations. While on the topic of FOI requests, I just had a look at the Subordinate Legislation Act 1994 and found the following section -

10(3) The responsible Minister must ensure that independent advice as to the adequacy of the regulatory impact statement and of the assessment included in the regulatory impact statement is obtained and considered in accordance with the guidelines.

..it seems to me that the "independent advice" document would be worthwhile seeking through FOI. It would have probably been prepared by the VCEC (Vic Competition and Efficiency Commission) - www.vcec.vic.gov.au

Compliance with 28 day consultation requirement

In response to your comments about the failure to meet the 28 day requirement, I quote section 11 of the Subordinate Legislation Act 1994 below which is relevant -

11. Comments and submissions
(1) If a regulatory impact statement has been prepared, the responsible Minister must ensure that a notice in accordance with sub-section (2) is
published in—
a ) the Government Gazette; and
b ) a daily newspaper circulating generally throughout Victoria; and
c ) if the responsible Minister considers it appropriate, in such trade, professional or public interest publications as the responsible Minister determines.

(2) A notice must—
a ) state the reason for, and the objectives of, the proposed statutory rule;
b ) summarise the results of the regulatory impact statement;
c ) specify where a copy of the regulatory impact statement and of the proposed
statutory rule can be obtained;
d ) invite public comments or submissions within such time (being not less than 28 days from the publication of the notice) as is specified in the notice.

(3) The responsible Minister must—
a ) ensure that all comments and submissions are considered before the statutory rule is made; and
b ) ensure that a copy of all comments and submissions is given to the Scrutiny
Committee as soon as practicable after the statutory rule is made.

Here are my comments:
1) The notice MUST go in the gazette and a newspaper circulating thoughtout Victoria (e.g. The Age, Herald Sun etc) - optionally they can put the notice in smaller newspapers but that is optional only.

2) The public must be given notice of the 28 days submission period. If, the time when submissions closed was 7 December 2005 then there should have been a notice in the newspaper and gazette (at least) 28 days prior to this. If not, then the Act has not been complied with. What are the consquences of such as breach you might ask? Well, the Act is silent on this matter. Your best bet is to have a chat with SARC (http://www.parliamen...arc/default.htm) and see what they say on the matter. They are the ones who deal with this type of problem the most I would imagine.

Is the 60 day period legal?

Regarding whether the 60 days is legal or not under the new regulations I quote the wording in reg 506 -

The whole year, excluding any period specified by a fisheries
notice under section 152 of the Act

This means the fishery is completely closed unless fisheries are nice enough to give recreationals some access. They are not in any way obliged to open the fishery to recreationals for even 1 day if they do not want to.

Victorian Guide to Regulation
You might be interested to read the Victorian Guide to Regulations which was made to assist people implementing the Subordinate Legislation Act 1994. It is available on the VCEC website mentioned above. Unfortunately it does not elaborate on the 28 day issue. It was updated recently.

Failure to put up inshore reef closures as an option in the RIS

I note your comment about the failure to include an alternative in the RIS relating to a more limited closure of just the inner reef areas (rather than the whole central coastline and all of Port Phillip Bay). It may have been that it would not have been a practical option because of enforcement difficulties in determining what is an "inner reef" and what is not. Would you define them by water depth? Or distance from shore? Or a combination? Even something simple like the "no abalone in less than 2 metres rule" was found to be unworkable and unenforceable. So a "no abs on inshore reefs" rule would possibly be even more problematic. I do not think that you can argue the RIS was invalid on this ground alone. Of course there are other valid alternatives mentioned in the RIS. For example, the option of licensing abalone fisherman separately from normal recreational fisherman was a viable option in my opinion. It would have allowed greater control of the fishery without any requirement to reduce catch limits.


All the best Ian and please keep the updates coming. It is great that someone is really standing up to Fisheries and their second class management approach. It is my view that Fisheries Managers should be voted in by fisherman and it should be mandatory that they have an interest in fishing. New Zealand South Island Fish and Game have an election model and it works very well. (http://www.fishandgame.org.nz/)

While on the topic of fisheries changes, (going slightly off topic) I think one good change would be if fisheries sent out a reminder notice a month before my fishing licence expires so that I can renew the licence on time. I got caught a couple of weeks ago by Fisheries (quite embarassing for me since I always mean to have a licence) without a valid licence. It had expired a month before. In any case I was lucky to get a slap on the wrist and bought a new licence that same day. However it was an honest mistake on my part and it seems unfair on people to expect them to remember these things without any reminder notices being sent. This is the only "fee" I have to pay each year where no notice is sent. It seems to be a pretty primitive system that is now behind the times. I understand that this might add some administrative cost but fisheries would probably obtain more revenue anyway because forgetful people like me would renew their licence sooner and so effectively give fisheries more money each year.

Cheers, Glen
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