Fisheries Management Amendment Regulations 2006 (No. 1)1 Select Legislative Instrument 2006 No. 90
I, PHILIP MICHAEL JEFFERY, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Fisheries Management Act 1991. Dated 8 May 2006 P. M. JEFFERY Governor-General By His Excellency’s Command ERIC ABETZ Minister for Fisheries, Forestry and Conservation
1              Name of Regulations                 These Regulations are the Fisheries Management Amendment Regulations 2006 (No. 1). 2              Commencement                 These Regulations commence on the day after they are registered. 3              Amendment of Fisheries Management Regulations 1992                 Schedule 1 amends the Fisheries Management Regulations 1992.

Schedule 1        Amendments (regulation 3)    [1]           Subregulation 3 (1), definition of representative omit [2]           Regulations 5, 6, 7 and 8 substitute
Division 1              Auctions and ballots for fishing rights
5              Auction for the grant of a fishing right          (1)   For subsection 28 (1) of the Act, if a grant of a fishing right is to be made by auction, AFMA may set a reserve price for the grant before the day on which the auction is to be held.          (2)   If the person who made the highest bid at the auction is unable to pay the charge applicable in relation to the grant, AFMA must offer the grant to the person who made the second-highest bid.          (3)   If the person who made the second-highest bid at the auction is unable to pay the charge applicable in relation to the grant, AFMA must offer the grant at a new auction.
6              Ballot for the grant of a fishing right          (1)   For paragraph 168 (2) (c) of the Act, if a grant of a fishing right is to be made by ballot:                 (a)    the Minister must appoint a person as his or her representative; and                (b)    the procedures set out in subregulation (2) are prescribed to select the person to whom the grant will be made.          (2)   The procedures are as follows:                 (a)    AFMA must write the name of each eligible person on a separate piece of paper (the ballot paper) that is the same size as the other ballot papers;                (b)    AFMA must ensure that the representative is present when the ballot is conducted;                 (c)    AFMA must show the ballot papers to all persons who are present before the ballot is conducted;                (d)    AFMA must place the ballot papers in a container within which the papers cannot become snagged or trapped;                 (e)    AFMA must shake or turn the container to mix the ballot papers;                 (f)    the representative must draw 1 ballot paper at a time from the container until it is empty;                 (g)    AFMA must record the names of the eligible persons in the order in which the names were drawn.
Division 2              Tenders
Subdivision A              Preliminary
7              Purpose of Division                 For sections 28 and 168 of the Act, this Division sets out the procedures to be followed for selecting, by a tender process, the persons to whom a grant of a fishing right will be made available under section 29 of the Act. Note   The conditions of tender may stipulate that fishing rights are available only in ‘bundles’ of a specified number.
8              Definitions for Division                 In this Division: precedence list has the meaning given in paragraph 28 (d) of the Act. reserve price means the minimum bid amount that will be accepted as a tender. tender manager, in relation to a tender process, means:                 (a)    if AFMA appoints an independent tender manager under paragraph 8A (a) — that independent tender manager; or                (b)    if AFMA does not make an appointment under paragraph 8A (a) — AFMA.
8A           Administration of the tender process                 If a grant of fishing rights is to be made by tender:                 (a)    AFMA may manage the tender process itself or may appoint an independent tender manager to manage the process on AFMA’s behalf; and                (b)    AFMA may appoint a probity auditor to oversee the tender process.
Subdivision B              Applications under subsection 26 (1) and the tender process
8B           Applications under subsection 26 (1) of the Act                 If a person has applied for registration under subsection 26 (1) of the Act:                 (a)    the application must be sealed in an opaque envelope on which is written the word ‘registration’ (registration envelope); and                (b)    the registration envelope and the envelope referred to in paragraph 27 (3) (b) of the Act (the tender envelope) must be submitted together enclosed in a sealed opaque envelope (outer envelope). Note   See also subsections 27 (2) and (3) of the Act in relation to what must accompany a tender, and how a tender is to be submitted.
8C           Opening outer envelopes          (1)   As soon as practicable after the closing date for tenders, the tender manager is to open each outer envelope.          (2)   The tender manager must ensure, if AFMA has appointed a probity auditor for the tender process, that the auditor and the tender manager are present at the opening of the outer envelopes.          (3)   The following procedure must then be carried out:                 (a)    for each outer envelope, the tender manager is to open the registration envelope inside it and record:                           (i)    the name of the person who submitted the enclosed registration application; and                          (ii)    whether a sealed tender envelope was submitted with the application; and                          (iii)    whether any other conditions of the tender in relation to the contents of, or markings on, the outer envelope have been complied with;                (b)    the tender manager must not open any tender envelope, but is to nominate a place where the sealed tender envelopes will be kept until they are opened under regulation 8F;                 (c)    the tender manager is to keep the original registration applications and, if the tender manager is not AFMA, give the applications to AFMA;                (d)    AFMA:                           (i)    is to assess the registration applications, under section 26 of the Act, to determine each applicant’s eligibility for the grant of fishing rights in accordance with the conditions for registration in the Act and the plan of management for the fishery concerned; and                          (ii)    if the tender manager is not AFMA — is then to give the tender manager a list of the eligible persons.
Subdivision C              Ranking and recording of tenders
8D           Application procedures if fishery is divided into sectors                 If:                 (a)    the fishery in which fishing rights are to be allocated is divided into sectors; and                (b)    fishing rights in 2 or more sectors of the fishery are to be allocated by 1 tender process; the tender manager is to carry out the ranking procedure set out in this Subdivision for each of those sectors.
8E           Procedures for reserve price                 If AFMA sets a reserve price, AFMA must, before the closing time for tenders, give a written statement of the reserve price in a sealed envelope (the reserve price envelope) to the tender manager.
8F           Tenders — recording and ranking                 The procedure for recording and ranking tenders is as follows:                 (a)    the tender manager is to open the tender envelope for each registered person;                (b)    the tender manager is to record, for each registered person:                           (i)    the person’s name; and                          (ii)    the amount bid by the person per fishing right; and                          (iii)    whether the person’s bid is invalid and, if it is, the reason why it is invalid (see paragraph (c) and regulation 8G for how invalid bids are dealt with); and                         (iv)    any other information required by the conditions of tender;                 (c)    unless the bid is invalid, the tender manager is to rank the tenders submitted by registered persons according to the amount bid per fishing right;                (d)    if 2 or more tenderers bid the same amount per fishing right, they are to be ranked equally;                 (e)    if AFMA has set a reserve price, the tender manager is then to open the reserve price envelope and record, for each tender, whether the amount bid is less than, equal to or higher than the reserve price (see regulation 8G for how bids that do not meet the reserve price are dealt with);                 (f)    if the conditions of tender set a minimum number of fishing rights that a tenderer may acquire, the tender manager is then to record, for each tender, whether the minimum number that the tenderer will accept is equal to or more than the minimum number set by the conditions;                 (g)    if the conditions of tender set a maximum number of fishing rights that a tenderer may acquire, the tender manager is then to record, for each tender, whether the maximum number that the tenderer will accept is equal to or less than the maximum number set by the conditions;                 (h)    subject to regulation 8G, the tender manager is to prepare a precedence list setting out for each registered person who tendered:                           (i)    the person’s name and contact details; and                          (ii)    the amount bid per fishing right; and                          (iii)    if the conditions of tender allow a tenderer to specify the maximum number of fishing rights that the tenderer is prepared to acquire, or the minimum number of fishing rights that the tenderer will accept, at the amount bid — those maximum and minimum numbers;                  (i)    if the conditions of tender allow a tenderer to acquire less than all of the available fishing rights — the precedence list must also set out the matters provided for in regulation 8H;                 (j)    the tender manager is then to give AFMA a report incorporating the precedence list.
8G           Certain persons not to be placed on precedence list          (1)   If:                 (a)    a registered person has tendered; and                (b)    either the bid is less than the reserve price or is invalid; then the person is not to be recorded on the precedence list. Note   A grant of a fishing right is made to persons on the precedence list only — see section 29 of the Act.          (2)   For a person who, under subregulation (1), is not recorded on the precedence list, the tender manager must record:                 (a)    the person’s name; and                (b)    the reason why the person is not recorded on the precedence list.
8H           Procedures if tenderer can acquire less than all available rights          (1)   For paragraph 8F (i), the precedence list must also set out the number of fishing rights to which each tenderer is entitled, determined as set out in subregulations (3), (4), (5), (6) and (7).          (2)   Subregulation (1) applies whether or not the conditions of tender also allow a tenderer to specify, at the amount tendered per fishing right:                 (a)    the maximum number of fishing rights that the tenderer is prepared to acquire; or                (b)    the minimum number of fishing rights that the tenderer will accept.          (3)   For each tender, if the highest-ranked tenderer has tendered for less than all the available fishing rights, the next-highest-ranked tenderer is entitled to the lesser of:                 (a)    the remaining number of fishing rights; and                (b)    the number of fishing rights that that tenderer has tendered for; and so on.          (4)   If:                 (a)    a tenderer nominates a minimum number of fishing rights that the tenderer will accept for an amount bid; and                (b)    that number is greater than the number of fishing rights remaining after deducting the entitlements of all higher-ranked tenderers from the total number of fishing rights offered; the tenderer is not to be entitled to those fishing rights, even if the amount bid per fishing right is higher than that of the next-highest-ranked tenderer.          (5)   If a tenderer does not nominate a minimum number of fishing rights that the tenderer will accept for an amount bid, the tenderer is taken to have nominated, as the minimum number at that amount:                 (a)    1 fishing right; or                (b)    if AFMA has set a minimum number of fishing rights that a person may accept — that number.          (6)   If 2 or more tenderers are equally ranked, their respective entitlements to fishing rights are to be proportional to the maximum number of fishing rights that each is prepared to accept at the amount bid.          (7)   However, a tender is to be disregarded if the granting of entitlements in accordance with subregulation (6) would lead to the tenderer being granted less than any minimum number of fishing rights that:                 (a)    the tenderer would accept; or                (b)    the conditions of tender specify as the minimum that a tenderer may acquire.
Division 3              Miscellaneous
Note
1.       All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See www.frli.gov.au.