R. Wager and P. Jackson
Environment Australia, June 1993
ISBN 0 6421 6818 0
The Queensland Fisheries Act 1974 and the Queensland Fishing Industry Organisation and Marketing Act 1982 provide legislation for the management of fishes and invertebrates in marine and fresh waters.
Legislation exists to declare freshwater fishes as protected species. Capture of protected species from the wild and/or holding them in captivity requires a permit. Presently the only freshwater species listed is the lungfish (Neoceratodus forsteri). The Red-finned Blue-Eye (Scaturiginichthys vermeilipinnis) is currently being considered.
Other Fisheries Act legislation relates to closures of areas to all forms of fishing or bait collecting. Closures would restrict collection of threatened species from the wild, whilst allowing aquarists to maintain populations without requiring a permit.
Legislation concerning the collection of bait for fishing in freshwaters has recently been introduced. Formerly all fishing apparatus excluding rod and line were prohibited in waters above tidal influence. New legislation allows the use of dip nets, traps and dillies in these waters. Smaller threatened species may now become more vulnerable to collection, especially for the aquarium trade. The Fisheries Division, Queensland Department of Primary Industries (QDPI) will have to consider closures or protected species legislation to protect these species from collection.
Other relevant powers include bag limits, closed seasons, minimum sizes, and gear restrictions.
Note that all the above legislation applies to the protection of the fish and not its habitat. Although habitat reserves may be declared for waters below high tide no such powers apply for fresh waters. This is due to problems with land tenure in catchments that do not occur in tidal/coastal areas.
The Fisheries Division is presently negotiating with the Queensland Forestry Service and the Department of Environment and Heritage to determine the possibility of protecting habitats of threatened species with either Forestry Reserves or under National Parks legislation (ie with National Parks). Policies and guidelines are being developed to assist with the protection of fish habitat via the QDPI's Integrated Catchment Management Strategy.
Nature Conservation Act 1992
The Department of Environment and Heritage has prepared new legislation combining a number of existing acts: the National Parks and Wildlife Act 1975; the Fauna Conservation Act 1974; the Native Plants Protection Act 1930; and those parts of the Land Act 1962 which deal with environmental parks. The Nature Conservation Act simplifies previous legislation and provides comprehensive nature conservation legislation. This legislation is similar to the Victorian Flora and Fauna Guarantee Act 1988, and allows for the listing of threatened species, communities and habitats. Management plans will be required for all listed species and interim conservation orders may be placed over habitats to allow their short term protection whilst longer term plans are prepared. In addition, threatening processes (see chapter 2) may also be listed and will require management plans to decrease their impact. This legislation provides increased powers to protect fish species, fish communities, and fish habitats.
The QDPI Fisheries Division has produced a conservation status listing for Queensland freshwater fishes (R. Wager 1993). This is used in the development of management policies; eg the number of broodstock collected for hatcheries depends on the conservation status of the particular species.
Legislation available to protect fish
The protection of fish species in Victoria comes under two pieces of legislation, the Fisheries Act 1968 and the Flora and Fauna Guarantee Act 1988.
Other legislation such as the Water Act 1990, River Improvement Act 1958, Planning and Environment Act 1987, Environment Protection Act 1970, Land Conservation Act 1970 and Soil Conservation Utilisation Act 1958 also impinge upon threatened fish species through their management of aquatic habitats.
State Government strategies such as the Timber Industry Strategy, State Conservation Strategy, Waters of Victoria, and the Wetlands Conservation Program also guide the management of aquatic habitats.
Recent investigations such as 'Victoria's Inland Waters: State of the Environment Report' (Office of the Commissioner for the Environment) and the 'Rivers and Streams: Special Investigation – Final Recommendations' (Land Conservation Council, Victoria) are also influencing overall management.
A listing of the conservation status of freshwater fishes in Victoria has been produced and is used for the development of management policies (Koehn and Morison 1990).
Fisheries Act 1968
This Act includes management of fisheries, commercial and amateur licences, fish culture, noxious fishes, fish disease, research and development, enforcement and legal proceedings.
The Act covers marine and fresh waters and is supported by subordinate regulations governing recreational and commercial fisheries. The Minister is advised by a fisheries management committee.
The accompanying regulations include licence requirements and restrictions (such as size limits, closed seasons, etc).
Specific restrictions (included in the current draft) on threatened species are:
- Prohibition of possession of Trout Cod;
- Seven Creeks from Polly McQuinns Dam to Watch Box Creek closed to fishing.
The Fisheries Act also provides the basic powers to protect threatened fish listed under the Flora and Fauna Guarantee Act (Licensing for capture, etc).
Flora and Fauna Guarantee Act 1988
The aim of this legislation is 'to guarantee that all taxa of flora and fauna and ecological communities in Victoria can survive, flourish and retain their potential for evolutionary development in the wild'.
Basically, nominations for the listing (or delisting) of threatened species, communities or potentially threatening processes are put before an independent Scientific Committee for judgement. If listed the Minister must publish the reasons for the decision and an Action Statement detailing what management measures are needed must be prepared. Protection is usually afforded under other acts.
Fish species currently listed under the Act which are under threat nationally are:
- Australian Grayling;
- Trout Cod;
- Ewen's Pygmy Perch;
- Barred (Brown) Galaxias;
- Dwarf Galaxias; and
- Yarra Pygmy Perch.
Four other species under threat in Victoria are also listed:
- Agassiz's Perchlet;
- Freshwater Herring;
- Tasmanian Mudfish; and
- Australian Bass (provisional listing only).
Five potentially threatening processes relevant to fish have also been listed. (Listings marked * are provisional only):
- Removal of wood debris from Victorian streams;
- Increase in sediment input to Victorian streams due to human activities;
- Alteration to the natural flow regime of rivers and streams;
- Deliberate or accidental introduction of live fish into public or private waters in a Victorian river catchment in which the taxon to which the fish belongs cannot reliably be inferred to have been present to the year 1770 AD;
- Alteration to the natural temperature regimes of rivers and streams.*
The Fisheries and Oyster Farms Act 1935 (Amended 1979) gives wide powers including regulation of exploitation by commercial and recreational fisheries, aquatic habitat controls, fishing gear restrictions, creation of aquatic reserves. Substantial protective controls are available.
The newly implemented Endangered Fauna Interim Protection Amendment Act 1992 is not applicable for the protection of fishes.
Other endangered species legislation is being formulated.
Various pieces of legislation are used to protect fish habitats including: the Water Act 1912 (Department of Water Resources); Soil Conservation Act 1938 (Soil Conservation Service); Rivers and Foreshores Improvement Act 1948 (Water Resources/Public Works); Clean Waters Act 1970 (State Pollution Control Commission); Pesticides Act 1978 (Agriculture); National Parks and Wildlife Services Act 1974 (NPWS); Environmental Offences and Assessment Act 1979 (Department of Planning); Crown Lands Act 1989 (Department of Lands); Environmental Offences and Penalties Act 1989 (State Pollution Control Commission); Catchment Management Act 1990 (Soil Conservation Service) and the Mines Act 1973 (Department of Minerals).
Management affecting threatened fishes is occurring in several areas:
- A review of native fish regulations is proceeding. Bans on the taking of certain species and the use of many gear types exist.
- Liaison between the Fisheries and Wetlands Division, Water Resources, the Murray-Darling Basin Commission (MDBC) and local government for better management of habitats. This is extensive, including ad hoc committees and some formal bodies such as the MDBC Fish Management Committee and the Fish Ladders Working Group.
- Co-operation and participation in MDBC's Native Fish Management Plan and in the ANPWS Trout Cod Restoration Plan.
- Culture of Trout Cod at the Inland Fisheries Research Station.
- Monitoring of stocked populations of Clarence River Cod.
- Monitoring of stocked populations of Trout Cod (ANPWS funding 1991/92).
- Protection of habitats of threatened species.
All freshwater species are protected under the Tasmanian Fisheries Act 1959. Specific seasons can be declared allowing the taking of certain species. Bag limits, gear restrictions and maximum or minimum sizes can be imposed.
Other legislation may impact on fish habitat in a number of ways, either affording protection or legalising destruction. These include National Parks and Wildlife legislation, Forestry Act 1920, Water Act 1957, Mining legislation and other industry legislation.
The Inland Fisheries Commission has policies concerning threatened species which include:
- survey and monitoring of populations and potential habitats;
- translocation into threat free habitats;
- captive breeding, rearing and release into threat free habitats;
- seeking protection of habitats through reserves or land management agreements; and
- construction of barriers to migration of salmonids in streams.
Other specific policies affecting freshwater fishes include the following:
- All fish capable of living in Tasmanian waters are prohibited imports. There is also more specific 'Noxious Fishes' legislation. Generally native species may not be translocated without specific permission. Exotic species are not introduced into any water where they are not already present;
- Captive breeding programs may be considered for threatened species although none are presently underway. This method was used for the Pedder Galaxias.
Freshwater fishes in South Australia can be protected under the Fisheries Act 1982. Protected species, closed seasons, bag limits, gear restrictions, and maximum/minimum sizes can be declared. Aquatic Reserves may also be declared, although none exist in fresh water at present. In addition, translocation of native and exotic species are controlled under sections 49 and 50 of the Act.
Other Acts are relevant to fish and habitat protection. Relevant Acts dealing with biotic environmental issues include the National Parks and Wildlife Act 1972, and the Water Resources Act 1990.
Threatened species are dealt with as individual circumstances arise. Captive breeding programs are managed under relevant fish farming and fish movement legislation, and are undertaken with cooperation from relevant interest groups.
Habitat protection is strongly supported as a means of ensuring healthy fish stocks; however, only aquatic reserves legislation can be used under the current Act.
Under the State Fisheries Act 1905 and subsequent amendments, the Minister for Fisheries can gazette Regulations proclaiming size limits, bag limits, gear restrictions and closed seasons for fish species. These, and other measures, are normally introduced for species subject to exploitation by commercial or recreational fishing, or in association with aquaculture, eg for collection of breeding stock. Species which are significantly and increasingly exploited are conserved by fisheries management plans. Inland fishes and crayfish are protected from commercial fishing, excepting for Lake Argyle on the Ord River. Translocation of new species require the approval of the Executive Director of Fisheries. Realistically such control is most effective in association with aquaculture proposals, including aquarium fish farms. These are subject to the Fish Farm provisions of the Fisheries Act, including fish health (disease-free certification and quarantine). The Executive Director must also approve inland fish collecting outside of any current regulations. At present there is no collection of inland fish for commercial aquarium purposes.
The Fisheries Act has provisions for pollution control and habitat protection, and are usually applied in relation to fisheries species. The Environmental Protection Act 1986 has wide ranging requirements for scrutiny, including public and government comment, on proposed development of land and water resources. The Water Authority Act 1984, while being mainly concerned with development of water resources, provides for monitoring of water quality and licensing of private dam building on proclaimed streams. The Water Resources Council of Western Australia through its various committees, coordinates research and management of inland water resources and catchments (integrated catchment management). The Waterways Commission Act 1976 is mainly concerned with estuaries, but also extends to catchments.
In the current rewriting of the Fisheries Act, provision is being made for inland fisheries reserves. However, the main Crown Reserve Acts are those of Wildlife and National Parks which are administered under the Conservation and Land Management (CALM) Act 1984.
The Conservation and Land Management Act allows the Minister for the Environment, acting on advice from the Threatened Fauna Scientific Advisory Committee, to declare threatened species under one of three protection categories: Threatened Fauna; Specially Protected Fauna; and the Reserve List.
The Threatened Fauna list includes species that are:
presumed to be extinct; in imminent danger of, or threatened with extinction; dependent on, or restricted to, habitats that are vulnerable and/or subject to factors that may cause its decline; or very uncommon even if widespread. Two species are listed at present. The blind gudgeon and the blind cave eel are both vulnerable because of possible groundwater developments on North West Cape.
No fishes are currently on the List of Specially Protected Animals, which identifies high value animals subject to smuggling.
The Reserve List includes species:
- that have recently been removed from the list of threatened fauna;
- that have a restricted distribution, are uncommon, or are declining in range and/or abundance, but which do not meet the criteria for listing as a threatened fauna;
- for which there is insufficient information for the committee to make an assessment of their status.
At present the following species are listed:
- Drysdale Hardyhead,
- Prince Regent Hardyhead,
- Pygmy Rainbowfish,
- Greenway's Grunter,
- Long-nose Sooty Grunter,
- Fortesque Grunter,
- Large-scale Grunter,
- Drysdale Grunter,
- Golden Gudgeon,
- Drysdale Gudgeon,
- Mitchell Gudgeon.
The Fisheries Act 1988 provides for, among other things, the regulation, conservation and management of freshwater fish and the establishment of Freshwater Aquatic Life Reserves. Regulations, management plans and gazette notices concerning matters not dealt with in management plans can be made under the Act to protect fish species or aquatic life. The Act also empowers the Minister to halt or restrict fishing activity for one month in response to a perceived emergency (eg if a threatened species is being affected by fishing activities this is intended to allow time for appropriate controls to be considered and implemented through the normal channels. Regulations, management plans and gazette notices may include controls such as closed seasons, bag limits, gear restrictions and size limits.
The Fisheries Act prohibits the introduction of native and exotic fish species, except under a permit subject to conditions prescribed by the Director of Fisheries.
There are, at present, no artificial stocking programs or captive breeding programs although a Government operated hatchery produces barramundi larvae for the aquaculture industry.
Integrated catchment management is in its infancy in the Territory. Presently several Land Care groups, with support and encouragement from the Territory Government, are developing integrated catchment management schemes in the Mary and Victoria River drainages.
There is no specific habitat protection for threatened species because there are no species recognised as threatened. There are no special policies on the management of water resources in relation to threatened or protected fish.
The Fisheries Act is the principal legislation for the protection of the Territory's freshwater fish and aquatic life. The Territory Parks and Wildlife Act 1977, administered by the Conservation Commission of the Northern Territory, also provides protection for non-fish species of freshwater aquatic life. A Memorandum of Understanding is presently being drafted to delineate the respective responsibilities of the Fisheries Division and the Conservation Commission regarding non-fish aquatic life.
Some provisions of the Pastoral Lands Act 1992, Water Act 1992, Mining Act 1939, Planning Act 1979, Soil Conservation and Land Utilisation Act 1977 and the Environment Assessment Act 1992 may affect freshwater fishes or their habitat. Note also that the application of the Commonwealth's Aboriginal Land Rights (Northern Territory) Act 1976 has significant effect in the Territory.
The Australian Capital Territory Fishing Act 1967 provides a range of controls and regulations for freshwater and marine fish species. The freshwater section divides the Act into three categories, largely determined in accordance with the trout fishery at the time. A closed season and minimum size apply to trout only, with a bag limit for all fish. Prohibited waters comprise mainly the reservoirs and tributaries used for storage of water for human consumption.
The Act contains limited protection for endangered species or aquatic habitat.
Although proposed for legislation review on several occasions it is unlikely that changes to this Act will be made in the near future because of competition with more pressing ACT government requirements.
The Nature Conservation Act 1980 deals mainly with the taking, keeping, selling, importing and exporting of animals. Section 30 controls and regulates the dealing (trading) of live fish under permit or licence conditions.
Specific protection has been identified in the ACT to a number of freshwater fishes identified by the ASFB as nationally threatened. Trout Cod is the only species relevant to the ACT. The species are:
- Eastern Freshwater Cod,
- Trout Cod,
- Clarence Galaxias,
- Swan Galaxias.
These species were gazetted on Schedule 1 (Protected Fish and Invertebrates) of the Nature Conservation Act. Section 17 (1)(a) empowers the Conservator of Wildlife to declare members of a species of fish or invertebrate to be protected fish or invertebrates. The protection afforded to Trout Cod and the other species means that a person shall not, except in accordance with a permit or licence, kill Trout Cod; take Trout Cod from the wild; keep Trout Cod; sell Trout Cod; import or export Trout Cod into or from the ACT.
In addition Schedule 6 (Special Protection Status Wildlife Vulnerable to or Threatened with Extinction) lists and identifies the four species from Schedule 1, as well as:
- Honey Blue-eye,
- Brown Galaxias,
- Pedder Galaxias,
- Saddled Galaxias,
- Swamp Galaxias,
- Australian Grayling,
- Ewens Pygmy Perch,
- Lake Eacham Rainbowfish,
as nationally vulnerable or threatened species.
Schedule 6 doubles the penalty of any species also listed in Schedule 1.
The Nature Conservation Act is currently being reviewed to include Flora and Fauna Guarantee type legislation which will give greater protection to aquatic habitats and species.
The Cotter River Act 1914 prohibits fishing in the Cotter Reservoir which is part of the ACT water supply. The greater part of the Cotter River catchment is contained within the Namadgi National Park where fishing is also prohibited and the aquatic habitat over the whole catchment is protected.
The entire length of the Murrumbidgee River within the ACT is managed as a series of Nature Reserves and offer a degree of protection to the surrounding riverine habitat.
The Water Pollution Act 1984 relates to the control of pollution of the waters of the ACT.
There are no wild Trout Cod populations present in the ACT. Fry obtained from New South Wales Fisheries were stocked in Bendora Reservoir in 1989 and 1990. The survival of these stocked fish will be followed up during the 1992/93 summer. Fishing is prohibited in the Bendora Reservoir and its habitat is totally protected.
Wildlife Protection (Regulation of Exports and Imports) Act 1982
The object of this Act is to ensure that Australia complies with its obligations implicit in the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), and to further the protection and conservation of the wild fauna and flora of Australia and other countries. This is achieved by:
- regulating the import or export of threatened species, or species that may become threatened, or products derived from same; and
- regulating the import of exotic animals that may become established in the wild in Australia.
Schedules One and Two list species for which import or export is prohibited except under permit approved by the Minister. Australian freshwater fish species included on these Schedules are:
- Trout Cod,
- Macquarie Perch,
- Australian Grayling,
- Australian Lungfish.
Schedule Six lists, among other things, exotic fish species that are prohibited imports because they have the potential to become established in the wild in Australia.
Endangered Species Protection Act 1992
The objects of this Act are to (a) promote the recovery of species and ecological communities that are endangered or vulnerable, (b) prevent other species and ecological communities from becoming endangered, (c) reduce conflict in land management in situations relating to conservation of species and ecological communities that are endangered or vulnerable, (d) promote public involvement and understanding of conservation of endangered and vulnerable species and communities and (e) encourage cooperative management for the same.
The Act has five key features:
- A scientifically-based listing process which identifies nationally endangered and vulnerable species and endangered ecological communities, and key threatening processes of national importance. A key threat is a process that adversely affects a number of listed species or ecological communities and which can be feasibly and effectively be tackled by a nationally coordinated plan. Schedule One lists species that are endangered or vulnerable and currently includes 13 freshwater fish species.
- A proactive approach which emphasises the use of plans to assist in the recovery of endangered species and the control of key threatening processes. A recovery Plan outlines the actions necessary to arrest the decline and support the recovery of an endangered species or ecological community, so that its long term survival in nature can be assisted.
- Provisions to enable Commonwealth assistance to States and Territories (that is, legislative direction for the Endangered Species Program).
- Specific obligations for Commonwealth land or waters. The commonwealth is obliged to prepare and implement, within prescribed time limits, Recovery Plans and Threat Abatement Plans for listed species, ecological communities and key threats on Commonwealth land or waters.
- Community and interest group involvement and scrutiny. A committee will advise the Environment Minister on administration of the legislation including matters such as priorities for preparing and implementing Recovery Plans. Interested persons (third parties) are provided with legal standing to apply for injunctions on certain actions by the Environment Minister or Director of the Australian National Parks and Wildlife service that contravene the legislation. Public comment procedures are included for draft plans and the issue of permits. Information on decisions such as listing, approval and implementation of plans is made available to the public.
The complementary changes to the Environmental Protection (Impact of Proposals) Act 1974 clarify the circumstances in which endangered species considerations trigger environmental assessment under the Environment Protection (Impact of Proposals) Act.