With the Commonwealth inquiry into property acquisition (noted here) in mind it is interesting to see the report of the Western Australian Parliament's Standing Committee on Public Administration regarding Private property rights: the need for disclosure and fair compensation.
The report states
1 The right to private property has long been considered fundamental to our social and economic security. This is tempered by the fact that, with the exception of native title land, the Crown ultimately owns all land and grants only ‘interests’ to private individuals.
2 The key message received by the Standing Committee on Public Administration was that the extent to which governments can restrict or interfere with property use and rights, without adequate consultation or compensation, is increasing. Two issues are at the core of this inquiry into Private Property Rights:
- the inadequate disclosure of government interests and encumbrances that affect property
- the inability to access fair and reasonable compensation where a government interference affects property.
3 The issues canvassed in this report are not new. Various inquiries and reviews have considered these matters over the past two decades. The Committee sought an update from the Western Australian Government on the implementation of previous recommendations, finding that many remain outstanding. This Inquiry has also highlighted relevant emerging issues. While precluded from inquiring into particular cases, the Committee uses a range of case studies to illustrate the systemic issues raised.
Encumbrances affecting land
4 There are a range of ways that governments can lawfully interfere with private property. Such measures can have adverse effects on individual landowners. The terms of reference of this Inquiry provided encumbrances for the Committee to focus on, including Bush Fire Prone Areas and implied easements for Western Power.
5 While environmental protection is widely considered to be in the public interest, the Committee heard that the cost and impact is often borne predominantly by individual landowners. Environmentally Sensitive Areas (ESAs) are an example. The Environmental Protection Act 1986 creates an offence for the unauthorised clearing of native vegetation. To prevent the incremental degradation of rare flora and wetlands, regulatory exemptions for low impact, routine land management practices do not apply in ESAs, and a clearing permit is required.
6 Landowners felt strongly about the impact of ESAs on their lives, livelihood and property rights. As all wetlands in the agricultural regions of Western Australia (WA) are ESAs, many pastoralists and graziers are concerned about the legality of their existing grazing practices. Affected landowners were not notified when ESAs were declared in 2005, and ESAs are not registered on Certificates of Title. To address community confusion, the Committee recommends that the WA Government clarify the legislative definition of clearing.
7 Governments may reserve land for public purposes, such as schools, hospitals and highways. Landowners submitted that the value of their property, their ability to use and enjoy their property, or both, have been adversely affected by planning decisions. Some landowners have been in limbo for decades, not knowing when the WA Government will choose to proceed with acquiring their land. The Committee found that planning reservations can result in prolonged uncertainty about the future use and value of land.
Disclosure
8 Under the Torrens title system, a state-maintained register of land holdings guarantees indefeasible, or certain, ownership. The Certificate of Title is the official land ownership record for each parcel of land. Landowners were sometimes unaware of encumbrances on their property at the time of purchase, as they were not listed on the Certificate of Title. Submitters told the Committee that all interests, limitations, encumbrances and notifications that restrict the use or enjoyment of land should be registered or linked to the Certificate of Title. The Committee concluded that failure to do so erodes confidence in the Torrens title system.
9 Conversely, Landgate, the WA Government’s land information agency, suggest that to register all interests on the Certificate of Title would undermine the integrity of the Torrens system. Landgate submit that the Torrens title system does not guarantee full disclosure of all interests affecting land on a Title, and an attempt to do so could potentially undermine the principle of indefeasibility.
10 The Committee found that Landgate has made substantial progress towards disclosing a greater range of interests in land over the past 15 years, through:
- the Shared Land Information Platform, which allows members of the public to search linked datasets through interactive maps
- Property Interest Reports (PIRs), which list approximately 90 interests affecting land not listed on the Certificate of Title, such as heritage orders, wetlands and Bush Forever areas.
Property Interest Reports are available on the Landgate website for $60.
11 Though useful, the Committee found that neither of these tools can be relied on to disclose all interests affecting land. The Committee makes a number of recommendations about PIRs and the uncertainty created by unregistered interests. The Minister for Environment recently announced that the WA Government will implement one of these recommendations, adding ESAs to the list of interests reflected on a PIR.
Compensation
12 Submitters to this Inquiry largely did not dispute that the WA Government may, at times, need to acquire or reserve their land. However, people feel strongly that fair and reasonable compensation should accompany such actions.
13 The Land Administration Act 1997 and Planning and Development Act 2005 provide for injurious affection compensation where landowners have suffered loss due to an acquisition or reservation. The Committee heard from landowners who were concerned with the operation of compensation arising from planning reservations in particular. The Law Reform Commission of Western Australia recommended amendments to both Acts in 2008 to improve injurious affection provisions. These recommendations remain outstanding, and the Committee recommends that the WA Government proceed to implement them.
14 Not every government interest or restriction affecting the use, enjoyment or value of land has an avenue for claiming injurious affection compensation. ESAs are one such example that the Committee inquired into.
15 Compensation for land affected by power lines is limited by statute. Recommendations from the Public Administration and Finance Committee (2004) and Law Reform Commission of Western Australia (2008) to expand access to compensation are not a priority for the WA Government, due to cost. Because current costing details are not available, the Committee recommends that the WA Government assess the potential costs.
16 The Australian Constitution requires that the Australian Government acquire property on ‘just terms’. It was suggested that a similar provision should apply in WA. The Committee heard that the WA Government has investigated this option, and formed the view that such a provision would not be appropriate in the Constitution Act 1889. The WA Government has indicated its intention to amend the Land Administration Act 1997 to include a reference to ‘just terms’. The Committee recommends that this step be extended to all legislation enabling the WA Government to take actions impacting private property rights.
Licences and authorities–water
17 The Committee inquired into the property rights of government-issued licences and authorities. Licences are not ‘real property’ in the same way that land is.
18 Water is one of the State’s most important resources, underpinning major industries including agriculture, mining, industry and urban development. For some groups, such as farmers, the right to access water is a key and valuable asset. Water is also an increasingly scarce and vulnerable resource.
19 The Rights in Water and Irrigation Act 1914 allows the WA Government to control and manage the State’s water resources, including through licencing. The Department of Water and Environmental Regulation submit that water licences do not confer a proprietary right, as water vests in the Crown. However, licence holders are able to trade their water entitlements with other water users for a profit.
20 A number of issues with current water licensing arrangements were canvassed, including:
- the ‘first in’ approach to water allocation, which means newer farmers may have to rely on purchasing water from established licence-holders
- community concern about the proposed Southern Forests Irrigation Scheme
- inconsistent advice from the Department of Water and Environmental Regulation in the Warren-Donnelly catchment in relation to who is, and is not, exempt from licensing requirements
- statutory compensation provisions that have never been used.
Licences and authorities–fishing
21 The Committee concluded that Government-issued commercial fishing access rights are a form of private property rights. Fish and aquatic resources in WA are managed by the State for the community’s benefit. They are a shared resource not owned by any person until lawfully caught.
22 Commercial fishing (including aquaculture) contributes approximately $1 billion annually to the State economy. Commercial fishers may be granted rights under the Fish Resources Management Act 1994 and the Pearling Act 1990 to take aquatic resources through authorisations (most commonly, licences) and entitlements (such as a quantity of fish) associated with those authorisations.
23 Key issues arising from the Inquiry include:
- sustainability of aquatic resources
- allocation and re-allocation of entitlements
- shifts in priority of use between consumptive users (the taking of aquatic resources in the commercial, recreational, and customary sectors)
- shifts in priority of use of the marine environment between consumptive uses (the taking of aquatic resources) and non-consumptive uses (non-fishing activities, such as marine park establishment, harbour development, and offshore oil and gas exploration and production)
- compensation for loss in market value and fisheries adjustment.
24 Fishing law is currently under reform. The Fish Resources Management Act 1994 and the Pearling Act 1990 will be repealed and replaced by the Aquatic Resources Management Act 2016. Implementation has been delayed while an amendment is progressed through the Aquatic Resources Management Amendment Bill 2019.
25 A well-managed marine environment with secure rights provides certainty to commercial fishers. A clear understanding of the circumstances in which compensation may be available for loss in market value of authorisations and entitlements, and for adjustments to fisheries, will strengthen the industry.
Moving forward
26 The Committee understands that the WA Government’s ability to intervene with an individual’s property is often necessary to provide infrastructure, protect the environment, and preserve sensitive resources like water and fish.
27 In conclusion, the Committee found that issues such as poor communication and a lack of transparency create uncertainty and a sense of injustice in the community. For many people, these issues relate to either their livelihood or their single biggest asset. With this in mind, the Committee’s recommendations call for additional clarity, security and fairness to restore the balance between the common good and individual rights.
The Committee's Findings and recommendations are
F 1 Private property rights in Western Australia have been the subject of several inquiries and reviews over the past 20 years.
F 2 Property rights are longstanding and fundamental to the economic security of our society.
F 3 Environmentally Sensitive Areas under the Environmental Protection Act 1986 particularly impact, or are perceived to impact, pastoralists and graziers in the agricultural regions of Western Australia.
F 4 Members of the public may find it difficult to identify whether their land, or part thereof, has been declared an Environmentally Sensitive Area.
F 5 Due to the repeal of four Environmental Protection Policies, the Environmental Protection (Environmentally Sensitive Areas) Notice 2005 may contain expired information, which is misleading for members of the public.
R 1 Where an Environmental Protection Policy has been repealed and land is not otherwise covered by the Environmental Protection (Environmentally Sensitive Areas) Notice 2005, the Department of Water and Environmental Regulation write to relevant landowners, notifying that their land is no longer subject to an Environmentally Sensitive Area.
R 2 Following the prescription of Environmentally Sensitive Areas in the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, the Department of Water and Environmental Regulation inform all landowners in writing that their land is an Environmentally Sensitive Area, and advise them of the potential implications if native vegetation is present.
R 3 The Minister for Environment ensure expired information resulting from the repeal of Environmental Protection Policies is removed from the Environmental Protection (Environmentally Sensitive Areas) Notice 2005.
R 4 The Premier introduce in the Parliament of Western Australia an omnibus bill amending all relevant Western Australian legislation to make it a statutory requirement for Western Australian Government departments and agencies, when making decisions or taking actions that impact on the use of a landowner’s property, to notify each individual landowner impacted in writing before the decision is made or action taken, and advise how this will impact the landowners use of the land. Further, that impacted landowners be provided an opportunity to make submissions before the decision is made and/or action taken.
F 6 The meaning of grazing is unclear under the Environmental Protection Act 1986.
R 5 The Minister for Environment introduce a Bill in the Parliament of Western Australia to clarify the definition of clearing under section 51A of the Environmental Protection Act 1986, with a view to clarifying whether grazing livestock is permissible within an Environmentally Sensitive Area.
F 7 Some landowners may still be unaware that there is an Environmentally Sensitive Area on their land.
R 6 The Western Australia Government pay landowners impacted by an Environmentally Sensitive Area fair compensation if the value of the property is diminished by the Environmentally Sensitive Area due to the landowner being unable to use the land subject of the Environmentally Sensitive Area in accordance with its zoning use.
F 8 Planning reservations can result in prolonged uncertainty for landowners about the future use and value of their land.
R 7 Where the Western Australian Government reserves land to be used for a public purpose, it should: purchase the land, if the landowner wants to sell or if the landowners does not want to sell, and the land is not immediately required by the Western Australian Government, permit the landowner to develop, use and improve the land in accordance with its existing zoning.
R 8 Where a buffer zone is created and where requested by the landowner, that the Western Australian Government or the protected industries be required to purchase the land at the market value prior to the creation of the buffer zone.
F 9 Statutory easements may be registered on Certificates of Title, but this is not always the case.
R 9 The Minister for Energy direct Western Power to include a link to Landgate’s Shared Location Information Platform on its website, and inform readers that geographical information system mapping will identify whether their property is impacted by a Western Power encumbrance.
F 10 Landgate’s Property Interest Reports contain information about a wide range of interests affecting property that are not listed on the Certificate of Title.
F 11 Property Interest Reports cannot be relied on to disclose all interests affecting land.
F 12 The Western Australian Government is unwilling and unable to guarantee the information contained in a Property Interest Report.
F 13 Landgate’s Shared Land Information Platform and Property Interest Reports are the Western Australian Government’s preferred tools for disclosing a range of interests in land.
R 10 The Minister for Lands direct Landgate to inquire into and report on: 1. measures that need to be implemented and the resources required for the Western Australian Government to guarantee information contained in a Property Interest Report and on the Shared Land Information Platform is accurate and complete 2. the implications, including financial costs, for Western Australian Government agencies and landowners if the Western Australian Government were to require all government- imposed interests affecting land to be registered on the Certificate of Title. The Minister for Lands table the report in both Houses of Parliament by June 2023.
R 11 Landgate include a disclaimer on its website about the types of interests that are not included in Property Interest Reports, such as those administered by the Commonwealth Government and local governments, and some Western Australian Government interests affecting land, and where people can find information about such interests.
R 12 Landgate include a disclaimer on Property Interest Reports advising that not all interests affecting land are in included in the Reports or the Shared Land Information Platform.
F 14 Only Western Australian Government-imposed interests or encumbrances affecting land are reflected in Property Interest Reports.
R 13 Landgate continue cross-sector consultation to ensure data relating to all Western Australian Government interests affecting land is included in the Shared Land Information Platform.
R 14 The Premier issue a Circular instructing Western Australian Government departments and agencies responsible for interests affecting land to share relevant data with Landgate.
R 15 The Minister for Energy instruct energy operators to work with Landgate to ensure that energy operator easements are reflected in a clear way on Property Interest Reports and in the Shared Land Information Platform maps.
R 16 The Minister for Environment direct the Environmental Protection Authority, in collaboration with Landgate, to list each individual Environmental Protection Policy in Property Interest Reports.
F 15 The Real Estate and Business Agents and Sales Representatives Code of Conduct requires that real estate agents and sales representatives ascertain, verify and communicate all material facts to a transaction, but are not specifically required to provide prospective buyers with a Property Interest Report.
R 17 The Western Australian Government amend the Real Estate and Business Agents and Sales Representatives Code of Conduct to require that real estate agents inform clients of the option to purchase a Property Interest Report in relation to a real estate transaction.
F 16 The information contained in Property Interest Reports are fixed in time, and individuals are not notified of future changes.
R 18 The Western Australian Government establish a service similar to TitleWatch to inform clients of updates to their Property Interest Report.
F 17 The Law Reform Commission of Western Australia’s 2008 recommendations to amend section 241 of the Land Administration Act 1997 have not been implemented.
R 19 The Minister for Planning ensure that the new Bill to amend the Land Administration Act 1997 implements the Law Reform Commission of Western Australia’s relevant 2008 recommendations regarding compensation for injurious affection.
R 20 Where funds are available in the Metropolitan Region Improvement Fund, and landowners seek acquisition of their reserved land, the Western Australian Government make additional funds available from the Metropolitan Region Improvement Fund to the Western Australian Planning Commission to facilitate the immediate purchase of the land.
F 18 Recommendations made by the Law Reform Commission of Western Australia in 2008 to amend the Planning and Development Act 2005 have not yet been implemented.
R 21 The Minister for Planning progress amendments to the Planning and Development Act 2005 recommended by the Law Reform Commission of Western Australia in 2008.
R 22 The Minister for Planning introduce a Bill in the Parliament of Western Australia to ensure the ‘good faith’ requirement does not unreasonably deprive a landowner of any avenue for compensation.
R 23 The Minister for Planning bring a Bill before the Parliament of Western Australia to amend the Planning and Development Act 2005 to clarify whether injurious affection compensation can be claimed in respect of a development application by a subsequent owner who obtained title through inheritance.
F 19 Injurious affection compensation is available for some government encumbrances imposed for public benefit, but not for others.
F 20 The cost of environmental protection as it relates to Environmentally Sensitive Areas is borne predominantly by landowners.
F 21 The Country Areas Water Supply Act 1947 provides for the payment of injurious affection compensation where a licence for land clearing to preserve water catchments is refused and the land is rendered unproductive, or uneconomic, or has otherwise been injuriously affected.
R 24 The Western Australian Government assess the potential costs of implementing recommendations 24 and 28 from the Law Reform Commission of Western Australia’s 2008 project on compensation for injurious affection, so that the potential financial implications can be better understood, and publish a report detailing the findings of the assessment.
F 22 The presence of electricity transmission lines on private property may increase the costs to the landowner associated with undertaking works on the property.
R 25 The Minister for Energy consider requiring Western Power to compensate landowners carrying out reasonable works on their property for any additional costs incurred as a result of electricity transmission lines on the property.
F 23 The Western Australian Government is of the view that a provision guaranteeing that property be acquired on just terms may not be appropriate in the Constitution Act 1889, and would not substantially change the operation of legislation such as the Land Administration Act 1997.
R 26 The Western Australian Government amend section 241 of the Land Administration Act 1997 to include a reference to ‘just’ compensation, as recommended by the Western Australian Law Reform Commission in 2008.
R 27 The Western Australian Government amend relevant sections of all legislation which enables the Western Australian Government to take actions impacting private property rights, to require compensation on just terms.
F 24 Access to water in fully allocated or over-allocated water subareas is restricting horticultural activity in these subareas.
F 25 Water security is a real and growing issue in a drying climate.
F 26 Under the proposed Southern Forests Irrigation Scheme, the Southern Forests Irrigation Co- operative will licence water from the Department of Water and Environmental Regulation and distribute water between shareholders, who may then trade water amongst themselves.
F 27 The Rights in Water and Irrigation Act 1914 does not provide a legislative process for determining whether a section 5 exemption applies, and does not provide that this determination must be made by the Department of Water and Environmental Regulation.
F 28 There are no local by-laws in relation to springs in the Warren-Donnelly catchment.
F 29 There is no legislative head of power for the new administrative process instigated by the Department of Water and Environmental Regulation enabling it to make a determination as to whether a section 5 exemption under the Rights in Water and Irrigation Act 1914 applies.
F 30 The Rights in Water and Irrigation Act 1914 expressly provides that ‘spring rights’ are exempt from regulation unless a by-law is enacted bringing the spring within the Act’s Part 3 licensing provisions.
F 31 Almost four years after the Department of Water and Environmental Regulation instigated a new administrative process enabling it to make a determination on whether a section 5 exemption under the Rights in Water and Irrigation Act 1914 applies, the Department is unable to provide clear and consistent details of the process even though the Department maintains that it has consistently applied the new process since late 2016.
R 28 The Minister for Water commission an independent inquiry into the Department of Water and Environmental Regulations new administrative process requiring landowners to make an application for a bed and banks permit so as to enable the Department to determine whether a section 5 exemption under the Rights in Water and Irrigation Act 1914 applies. The matters to be examined by the inquiry to include: the Department’s legislative authority for imposing the process, compliance with the new process, the effectiveness of the process in achieving the desired outcomes, whether the process has been consistently applied by the Department, landowners concerns with the process, legislative changes needed to give statutory effect to the process, changes needed to improve the process, having regard to procedural fairness and a right of review by an independent body.
R 29 If the Department of Water and Environmental Regulation is to persist with its new administrative process requiring landowners to make an application for a bed and banks permit so as to enable the Department to determine whether a section 5 exemption applies, the Minister for Water introduce in the Parliament of Western Australia a Bill to amend the Rights in Water and Irrigation Act 1914, to expressly provide for the process and for a right of review or appeal to an independent body. The Bill to also provide for the Department of Water and Environmental Regulation to establish and maintain a register of spring exemptions and spring dams.
F 32 The Department of Water and Environmental Regulation’s communication with landowners in the Warren-Donnelly catchment on the new administrative process for the Department to determine whether a section 5 exemption under the Rights in Water and Irrigation Act 1914 applies was tardy, lacked detail as to the mechanisms of the process and did not reach all impacted or potentially impacted landowners. Nor did it include a public communication to all in the Warren-Donnelly catchment.
R 30 If the Department of Water and Environmental Regulation persist with this administrative process to trigger a determination by the Department on whether a section 5 exemption under the Rights in Water and Irrigation Act 1914 applies, the Department write to all owners of agricultural land in the Warren-Donnelly area to inform them of the process, including details of the mechanisms of the process. Further, the Department is to issue a public notice detailing the process and its mechanisms.
R 31 The Department of Water and Environmental Regulation immediately make its newsletters available on its website.
R 32 The Department of Water and Environmental Regulation develop, in consultation with agricultural landowners in the Warren-Donnelly catchment, a communication strategy that identifies those matters the Department must communicate to owners of agricultural land, commits to timely communication, and to communicate in writing directly with owners of agricultural land in the Warren-Donnelly catchment (not licensees only).
F 33 The Rights in Water and Irrigation Act 1914 does not require the Department of Water and Environmental Regulation to maintain a register of spring exemptions or spring dams, as these do not require licencing and are not prescribed as part of the definition of ‘instrument’.
R 33 If the Department of Water and Environmental Regulation persists with its requirement that landowners make an application for a bed and banks permit to trigger a determination by the Department as to whether a section 5 exemption under the Rights in Water and Irrigation Act 1914 applies, then the Department should establish and maintain a register of spring rights and spring dams. The Rights in Water and Irrigation Act 1914 and regulations should be amended to provide for the establishment and maintenance of a register of spring rights and spring dams.
R 34 The Department of Water and Environmental Regulation:
- immediately provide comprehensive training to its officers on all aspects of the Rights in Water and Irrigation Act 1914, not limited to those matters identified by this inquiry, and the new administrative process for the Department to determine whether a section 5 exemption under the Rights in Water and Irrigation Act 1914 applies
- implement a quality assurance program to monitor the accuracy and consistency of advice provided by its officers develop a clear set of guidelines for Department officers to use in determining whether a section 5 exemption under the Rights in Water and Irrigation Act 1914 applies
- seek independent legal advice on the Department’s legislative authority to implement the new administrative process and any changes needed to improve the process, provide procedural fairness and a right of review.
R 35 The Department of Water and Environmental Regulation implement a departmental policy requiring all Department officer emails providing advice of a preliminary nature or based on a desktop assessment only to clearly state: 1. the advice contained in the email is of a preliminary nature only (and based on desktop assessment only, where applicable) and should not be taken as formal or final advice and the landowner should not commence any activities based on this advice And in relation to emails to Warren-Donnelly landowners in relation to spring rights, emails should also clearly state: 2. an onsite visit and assessment is required before the Department is able to provide a formal determination 3. to reduce the risk of being in breach of the legislation and associated enforcement activity, landowners need to ensure they have formal confirmation in writing from the Department as to whether they have spring rights before undertaking any works 4. the Department has implemented a new administrative process requiring formal assessment by the Department on whether a section 5 exemption under the Rights in Water and Irrigation Act 1914 applies. Landowners must comply with the process, by making an application for a bed and banks permit in order to trigger the formal assessment by the Department.
R 36 If the Department of Water and Environmental Regulation persist with this new administrative process providing for the Department to make a formal determination on section 5 exemptions, the Rights in Water and Irrigation Act 1914 should be amended to provide for the process and for a right of review against a decision by the Department that a section 5 exemption does not apply. Where an application for review is received by the Department, an independent hydrologist and surveyor, as agreed by the Department and the landowner, and in the absence of agreement as chosen by the landowner, are to be engaged to undertake an independent assessment on whether a section 5 exemption applies. The decision of the hydrologist and the surveyor as to whether a section 5 exemption applies shall stand. The costs are to be equally shared between the Department and the landowner.
F 34 Although compensation for water licence amendment is available under the Rights in Water and Irrigation Act 1914, the provisions are very narrow and as a result have never been used.
R 37 The Department of Water and Environmental Regulation review and consider the effectiveness of current compensation provisions.
R 35 Fish and aquatic resources are a community resource, not owned by any particular person until lawfully caught.
F 36 Fish and aquatic resources in Western Australia should be managed by the State on behalf of the Western Australian community.
F 37 Commercial fishing authorisations and entitlements confer only a right of access to the public resource, not a right of ownership over that resource.
F 38 The most recently available data from the Department of Primary Industries and Regional Development indicates that a majority of Western Australia’s fish stocks are being managed sustainably and are not at risk or vulnerable through fishing.
R 38 The Department of Primary Industries and Regional Development publish an updated State of the Fisheries report as a matter of urgency, and continue to publish such reports on an annual basis.
F 39 Integrated Fisheries Management sets a sustainable harvest level for a fish or aquatic resource for each sector, determining allocations between sectors, and managing each sector’s take of the fish or aquatic resource within their allocation.
F 40 Integrated Fisheries Management is an appropriate tool for determining how fish and aquatic resources may be sustainably shared between the commercial, recreational, and customary fishing sectors.
F 41 Long-term sustainability of fish and aquatic resources is a paramount consideration in managing these resources.
F 42 Accurate data regarding fish and aquatic resource breeding stock status, and catch and effort range, is critical to determining an appropriate Total Allowable Catch for each resource.
F 43 Determining accurate and appropriate Total Allowable Catch for fish and aquatic resources is fundamental to ensuring sustainability of the resource.
F 44 The Fish Resources Management Act 1994 provides for significant ministerial discretion in the management of the fish and or aquatic resources. Ministerial Orders and other instruments are subsidiary legislation for the purposes of the Interpretation Act 1984, subject to scrutiny and disallowance in the Parliament.
F 45 Pearling is an industry in which activities, and therefore rights, are integrated. As such, an adverse impact on the security of any particular activity or right may adversely affect another activity or right.
F 46 The Fisheries Legislation Service is a tool for finding information regarding which rules apply to various commercial fishing activities; however, its utility is diminished by its complexity in that a user must search numerous categories to locate all rules which apply to various commercial fishing activities.
F 47 The Department of Primary Industries and Regional Development does not guarantee the accuracy of the information contained in the Fisheries Legislation Service.
R 39 The Department of Primary Industries and Regional Development investigate whether the Fisheries Legislation Service can be simplified so users may avoid searching numerous categories for all rules which apply to various commercial fishing activities.
R 40 The Department of Primary Industries and Regional Development reform the Fisheries Legislation Service so as to guarantee the accuracy of the information contained therein.
F 48 Appropriate allocation of entitlements, within a Total Allowable Catch for the resource, is fundamental to sustainable management of fish and aquatic resources.
F 49 Decisions regarding allocation of entitlements (both within the commercial sector, and between sectors) may be more readily accepted if there is a clear understanding of the basis on which these decisions are made.
F 50 Compensation should not be payable to commercial fishers for the loss in market value of licences, authorisations, entitlements, or resource shares (under the Fish Resources Management Act 1994, the Pearling Act 1990, and the Aquatic Resources Management Act 2016 as applicable) where adjustments are made solely for reasons of fish or aquatic resource sustainability.
F 51 Integrating compensation currently available under the Fishing and Related Industries Compensation (Marine Reserves) Act 1997, Fisheries Adjustment Schemes Act 1987, and through ex gratia payments, as well as publishing a guideline under section 254 of the Aquatic Resource Management Act 2016 to provide practical guidance to persons who have duties or obligations under these Acts, will improve the certainty and security of commercial fishing access rights.
R 41 The Western Australian Government publish a guideline under section 254 of the Aquatic Resource Management Act 2016 regarding compensation for commercial fishers, including but not limited to how the quantum of compensation may be determined consistently.
R 42 The Minister for Fisheries investigate the utility of amending the Fishing and Related Industries Compensation (Marine Reserves) Act 1997 and the Fisheries Adjustment Schemes Act 1987 to allow for compensation to be paid to commercial fishers by entities which benefit from reallocation of entitlements and shift in priority of use of the marine environment and aquatic resource.
R 43 The Minister for Fisheries reform legislation regarding compensation for commercial fishing by integrating the Fishing and Related Industries Compensation (Marine Reserves) Act 1997 and the Fisheries Adjustment Schemes Act 1987, and conduct a review of the circumstances in which compensation is available, including when there are reallocations to non-consumptive uses such as marine parks and port development.
R 44 The Minister for Fisheries investigate the utility of amending the Fishing and Related Industries Compensation (Marine Reserves) Act 1997 and the Fisheries Adjustment Schemes Act 1987 to allow for compensation to be paid to commercial fishers by entities which benefit from reallocation of entitlements and shift in priority of use of the marine environment and aquatic resource.
F 52 The Department of Primary Industries and Regional Development’s Marine Reserve Compensation Process Information Sheet, January 2019, provides a useful summary to commercial fishers of the compensation processes under the Fishing and Related Industries Compensation (Marine Reserves) Act 1997.
R 45 The Department of Primary Industries and Regional Development produce an information sheet or similar which outlines the compensation processes under the Fisheries Adjustment Schemes Act 1987.
F 53 Expanding the scope of the Fishing and Related Industries Compensation (Marine Reserves) Act 1997 and the Fisheries Adjustment Schemes Act 1987 may reduce the incidence of ex gratia compensation payments which in turn may lead to more consistent compensation decision making.
R 46 The Minister for Fisheries consider the circumstances in which ex gratia payments are made to commercial fishers, with a view to reducing the incidence of such payments and instead providing a clear basis for compensation eligibility in legislation and greater transparency.
F 54 The resource-based, risk-based, and rights-based nature of the Aquatic Resources Management Act 2016 will increase sustainability of the aquatic resource and strengthen commercial fishing access rights.
F 55 The statutory regime, including the statutory consultation processes, in the Aquatic Resources Management Act 2016 has the effect of strengthening the security of commercial fishing access rights.
