Wildlife (Marine Mammals) Regulations 2009...In other words, human interactions with marine mammals need to be sustainably managed, in order to maintain populations of large whales,

Wildlife (Marine Mammals)

Regulations 2009

Regulatory Impact Statement

August 2009

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Published by the Victorian Government Department of Sustainability and Environment Melbourne, August 2009

© The State of Victoria Department of Sustainability and Environment 2009

This publication is copyright. No part may be reproduced by any process except in accordance with the provisions of the Copyright Act 1968.

This regulatory impact statement was prepared for the Department of Sustainability and Environment by Tim Harding & Associates in association with Rivers Economic Consulting.

Authorised by the Victorian Government, 8 Nicholson Street, East Melbourne

Printed by Stream Solutions

Printed on 100% Recycled paper

ISBN 978-1-74242-124-7 (print)

ISBN 978-1-74242-125-4 (online)

For more information contact the DSE Customer Service Centre 136 186

Disclaimer

This publication may be of assistance to you but the State of Victoria and its employees do not guarantee that the publication is without flaw of any kind or is wholly appropriate for your particular purposes and therefore disclaims all liability for any error, loss or other consequence which may arise from you relying on any information in this publication.

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This Regulatory Impact Statement (RIS) has been prepared to facilitate public consultation on the proposed Wildlife (Marine Mammals) Regulations 2009 (the proposed Regulations). In line with the Victorian Guide to Regulation, the Victorian Government seeks to ensure that proposed regulations are well-targeted, effective and appropriate, and impose the lowest possible burden on Victorian business and the community.

A prime function of the RIS process is to help members of the public comment on proposed statutory rules before they have been finalised. Such public input can provide valuable information and perspectives, and thus improve the overall quality of the regulations. The proposed Regulations are being circulated to key stakeholders and feedback is sought. A copy of the proposed Regulations is provided as an attachment to this RIS.

Public comments and submissions are invited on the proposed regulations, in response to information provided in this RIS. All submissions will be treated as public documents.

Written comments and submissions should be forwarded no later than 5 pm on 25 September 2009.

The preferred method of submission is by email to:

[email protected]

Submissions can also be mailed to:

Marine Mammals Regulations Review Wildlife Management Biodiversity and Ecosystem Services Department of Sustainability and Environment Level 2, 8 Nicholson Street EAST MELBOURNE VIC 3002.

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Summary

Introduction

Marine mammals found in Victorian waters include large whales, dolphins (small whales) and seals. Twenty-five species of whales live in, or migrate through Victorian waters; and seven species are known to occur regularly in Victorian waters. These are the Southern Right whale, Humpback whale, Blue whale, Bottlenose dolphin, Killer whale, Pilot whale and Common dolphin. Six species of seal commonly occur in Victoria, of which two are known to breed here: the Australian Fur Seal and the New Zealand Fur Seal.

All marine mammals are protected under the Wildlife Act 1975 (‘the Act’), where it is an offence to hunt or kill them, or to wilfully molest, injure, disturb, chase or herd them or to separate them from their young. All whales (including dolphins) are also protected under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), and some are listed as threatened under the Victorian Flora and Fauna Guarantee Act 1988 (FFG Act). No species of seals are listed as endangered or threatened in Victoria.

However, marine mammals need protection from interactions with humans, especially in relation to activities connected with whale and seal watching and swim tours.

This regulatory impact statement (RIS) assesses the proposed Wildlife (Marine Mammals) Regulations 2009 (‘the proposed regulations’), which are to be made under the Act. The proposed regulations are intended to replace the existing Wildlife (Whales) Regulations 1998 (‘the existing regulations’) which were due to sunset in late 2008. However, following recent amendments to the Act, the existing regulations have been extended for 12 months (until 30 November 2009) for review and incorporation of new provisions relating to national strategies and guidelines regarding marine mammals, including seals.

The objectives of the proposed regulations are to:

(a) provide for the long term protection of marine mammals by- (i) prohibiting or regulating activities connected with whale and seal

watching; (ii) prohibiting or regulating activities in the vicinity of whales and seals; (iii) prescribing conditions for whale watching tour, whale swim tour and seal

tour permits; and (iv) prescribing minimum approach distances for whales and seals; and

(b) prescribe the fees payable for the issue of whale watching tour permits, whale swim tour permits and seal tour permits.

Nature and extent of the problems

The nature and extent of the problems are best identified by considering the likely consequences if there were no relevant regulations or effective alternatives in place once the existing regulations expire on 30 November 2009.

The problems addressed by the proposed regulations may be summarised as:

1. HRisks to the conservation and protection of marine mammals from human activities and human interactions throughout Victoria;

2. �HRisks to public safety from interactions with large whales, dolphins and seals;

3. �HThe need to maintain a sustainable tourism industry related to marine mammals; and

4. �HThe need to minimise use conflicts between marine mammal tourism and other human uses of marine waters, such as recreation, fishing and aquaculture.

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In other words, human interactions with marine mammals need to be sustainably managed, in order to maintain populations of large whales, dolphins and seals, and to minimise risks to human safety. To put it simply, if human interactions drive the marine mammals away, or become unsafe, there will no longer be a viable marine mammal tourism industry. For example, without the proposed regulations or effective alternatives, it is unlikely in the longer term that a sustainable population of bottlenose dolphins would remain in Port Phillip Bay, or that Southern Right Whales would continue to visit Logan’s Beach.

The market failure associated with these problems is discussed in Part 2.3 of this RIS.

Policy objectives

To address the problems identified above the policy objectives of the regulatory proposal may be summarised as:

To minimise risks to: • the conservation and protection of marine mammal populations, and • human safety,

from human interactions with marine mammals in a way which— (a) provides for sustainable tourism and other commercial and recreational

activities; (b) is compatible with the economic, social and conservation objectives of the State;

and (c) achieves an appropriate balance between equity and economic efficiency.

The main test for assessing the proposed regulations against the practicable alternatives is their relative net benefit in achieving these policy objectives.

The viable options

The proposed regulations and practicable alternatives (collectively termed ‘viable options’) considered in the cost benefit assessment are:

Options for conservation and safety regulations (other than for fees):

• Regulatory Option A: The issuing and promotion of government guidelines for interactions with marine mammals based on the national guidelines (non-regulatory option);

• Regulatory Option B: The proposed regulations (which allow whale swim tours and require seal tour permits only near breeding colonies);

• Regulatory Option C: A variation of the proposed regulations prohibiting whale swim tours;

• Regulatory Option D: A variation of the proposed regulations requiring permits for all seal swim tours.

Options for fees

• Fees Option 1: prescribed actual fees based on full cost recovery including the costs of law enforcement;

• Fees Option 2: prescribed actual fees based on partial cost recovery with a ‘public benefit discount’ and excluding the costs of law enforcement.

• Fees Option 3:prescribed maximum fees based on partial cost recovery with a ‘public benefit discount’ and excluding the costs of law enforcement, with actual fees to be set below the prescribed maximum by the Secretary of the Department of Sustainability and Environment (DSE).

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The preferred package of options will consist of one option from each of the above groups, that is, either Regulatory Option A, B, C or D, plus either Fees Option 1, 2 or 3.

Cost benefit assessment

The evaluation criteria used in the assessment were:

Conservation and human safety Fees • risk minimisation • compliance costs

• fee costs • fee equity

A table comparing the costs and benefits of the Options for conservation and safety regulations (other than for fees) is given at the end of this summary. In brief, the cost benefit assessment of the viable options found that:

• Regulatory Option A (government guidelines) would entail minimum costs, but also minimum benefits. This Option is unlikely to adequately address the identified problems;

• Regulatory Option B (the proposed regulations) would entail higher costs and benefits than Option A and would adequately address the identified problems;

• Regulatory Option C (ban whale swim tours) would entail higher costs to tourism operators and their customers than Options A or B, but which would not be justified by the benefits;

• Regulatory Option D (requiring permits for seal swim tours) would also entail higher costs to tourism operators and their customers than Options A or B, and which also would not be justified by the benefits;

A weighted decision criteria analysis found that Regulatory Option B (the proposed regulations) provides the optimum combination of costs and benefits, in terms of the above evaluation criteria, compared to the other viable options.

The following table compares the differences between the options for fees.

Summary comparison of Fees Options 1, 2 and 3

Fees Option Option 1 (full cost recovery including law enforcement

costs)

Option 2 (partial cost recovery fees) – the proposed

fees option

Option 3 (maximum partial cost recovery fees)

Total 10-year fee costs $176,145.37 $102,730.08

Between $102,730.08 and $118,112.14

Comparison N/A < Option 1 < Option 1 and </= Option 2

Fee equity and certainty

• Permit holders charged different fees.

• Cross-subsidisation of public law enforcement benefits by permit holders.

• Cross-subsidisation of non-law abiding tour operators by law abiding ones.

• Cross-subsidisation of public education benefits by permit holders.

• Certainty of fees to permit holders.


• Taxpayers finance law enforcement and education benefits.

• Certainty of fees to permit holders.


• Taxpayers finance law enforcement and education benefits.

• Uncertainty of fees to permit holders.

Comparison N/A > Option 1 > Option 1 and < Option 2

Fees Option 2 (partial cost recovery with a ‘public benefit discount’ and excluding the costs of law enforcement) was found to be the optimum and most equitable option for the fees.

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Nature and effects of preferred option

The proposed regulations generally deal with similar matters to the existing regulations but with additions and improvements to implement recent changes in legislation: Government policy; and national guidelines, especially in relation to seals.

A summary comparison of the substantive differences between the existing regulations and the proposed new regulations is given in Part 5.1 and Appendix 7 to this RIS. The more significant changes relate to minimum approach distances. The reasons for these changes are to achieve consistency with the relevant national guidelines.

It should be noted that due to section 77A of the Act, these prescribed minimum distances do not apply to persons acting in accordance with a tour permit. Minimum approach distances for permit holders are summarised in Table 22 of this RIS..

Exemptions will be given to minimum approach distances from seals for holders of commercial fishing licences when tending to fishing gear. Any necessary restrictions on commercial fishers will be managed under the Fisheries Act 1995. However, the proposed regulations will impose some new restrictions on recreational fishers - they will have to avoid seals at seal colonies, particularly in the breeding season. This should involve only a minor inconvenience to recreational fishers, as discussed in Part 4.3.2 of the RIS.

The proposed regulations are expected to impose minor quantifiable costs on tour operators, together with unquantifiable costs on tour operators, marine recreationalists, taxpayers and the general public. They are expected to confer net benefits in terms of minimising risks to the conservation and protection of marine mammals and to public safety. The distribution of costs and benefits is not inequitable.

The following table gives the proposed fees for whale, dolphin and seal tour permits over 3 years:

Comparison of proposed and current fees for 3 year permits or equivalent

Fee regulation

Description Proposed fee (Based on one fee unit = $11.69 for 2009-10)

Current fee % change +/-

20(1) Whale watching (aerial) tour permit

$873.07 for 3 year permits (75 fee units) = 25 fee units/year

n/a n/a

20(2) Whale watching (vessel) tour permit


$438.38 for 2-year permits (37.5 fee units) = 18.75 fee units/year

+ 12 %

20(3) Whale swim tour permit


$818.30 for 2-year permits (70 fee units) = 35 fee units/year

+28.6 %

20(4) Seal tour permit $741.54 for 3 year permits (63 fee units) = 21 fee units/year

n/a n/a

Aerial and seal tour permit fees are new; and the change in fees for whale swim and whale watching (tour vessel) fees are based on a much more detailed analysis of costs to DSE of providing permit services.

The proposed fees are actually less than the fees originally calculated in the RIS for the Wildlife (Whales) Regulations 1998, which were $700 for whale swim permits and $375 for whale watching permits for one year. These fees were effectively halved in 2004 when permit lengths were extended to two years at no additional cost. Thus the existing fees are at a level well below that required for cost recovery.

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Where the costs of compliance with regulations comprise a significant proportion of business costs, small businesses may be affected disproportionately by such costs compared to large businesses. In this case all tour operators are likely to be small businesses. However, the proposed fees are unlikely to comprise a significant proportion of business costs.

It has been determined that the regulatory change Wildlife (Marine Mammals) Regulations 2009 will not lead to a material change in the administrative burden. The proposed regulations would impose no change in administrative burden with respect to whale watching (vessel) tour permits and whale swim tour permits. However, changes in the regulations would impose minimal new administrative burdens on whale watching aerial tour permit holders. The new administrative burden associated with the proposed regulations relating to monthly return requirements for whale watching aerial tour permit holders is estimated to be $6,649.55 per annum in 2009/10. This is significantly less than the $250,000 per annum threshold required by Government guidelines for the measurement of change in administrative burden.

The proposed regulations will be enforced mainly by regular boat patrols by DSE Wildlife Officers in Port Phillip Bay and in other locations with high levels of interaction between boats and marine mammals. These patrols will be supplemented by ad hoc monitoring by DSE and/or Parks Victoria staff during the regular course of their duties, and by responding to complaints or enquiries from the general public. The maximum penalty for a breach of the regulations is 20 penalty units.

National Competition Policy assessment

The markets affected by the proposed regulations are the markets for commercial marine mammal tourism. (National Competition Policy applies to businesses rather than to individuals engaging in non-business activities such as recreation).

All businesses engaged in marine mammal tourism would be equally affected by the same regulatory environment. The costs imposed would constitute only a small fraction of the annual turnover of each business. Consequently, the proposed regulations would not constitute a barrier to entry in any markets where businesses are involved in marine mammal tourism. The proposed regulations are therefore unlikely to restrict competition.

Consultation

Key stakeholders have been consulted on the proposed regulations, as listed in Part 1.7 of this RIS. These stakeholders include the tourism industry and other industries affected, marine mammal researchers and relevant government agencies. At this stage, there are no known significant objections to the proposed regulations, although there has been no external consultation as yet on the specific levels of the proposed fee structure.

Comments from interested stakeholders are now invited on the proposed regulations, in response to information provided in this RIS.

Conclusions

In summary, the RIS concludes that the proposed regulations:

• are expected to impose costs on tour operators, marine recreationalists, taxpayers and the general public;

• are expected to confer benefits in terms of minimising risks to the conservation and protection of marine mammals and to public safety;

• are expected to confer net benefits compared to the base case (i.e. no regulations); • are not inequitable in terms of the distribution of costs and benefits; and • do not restrict competition.

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Summary comparison of 10–year costs and benefits of regulatory options

Option Summary of overall Benefits Summary of overall Costs Comment

Option A (Non-regulatory option)

Very limited minimisation of risks to potential tourist benefits (whale and seal tours). Benefits could be up to between $151.8m and $206.5m but are likely to be much lower due to expected low degree of voluntary adherence to guidelines. Unquantifiable benefits: Limited minimisation of risk to conservation of marine mammals and sustainability of tourism but not risks to human safety.

Cost of developing guidelines of $12.4k (including publishing, printing and distribution costs). (No unquantifiable costs)

Limited benefits compared to the base case, arising from voluntary adherence to the guidelines. Low costs

Option B (Proposed regulations)

Up to between $151.8m and $206.5m benefits for minimisation of risks to potential tourist benefits (whale and seal tours). Unquantifiable benefits: Significant minimisation of risk to conservation and protection of marine mammals; human safety; and long term profits and sustainability of marine mammal tourism.

Overall costs for all 30 estimated tour operators: • Approx $0.25m for providing returns

and printing and laminating signs showing permit conditions.

• Approx $0.1m for marine mammal tour permit fees.

Unquantifiable costs: Minor inconvenience and emotional costs to all people due to restrictions on approaching marine mammals; Unknown but potentially major foregone revenues to tour operators due to tour permit conditions.

Significant benefits compared to the base case. Medium costs mainly due to permit fees and the costs of tour operator compliance.

Option C (Variation of proposed regulations prohibiting whale swims)

Up to between $142.8m and $193.3m benefits for minimisation of risks to potential tourist benefits (whale and seal tours). Unquantifiable benefits are the same as for Option B plus: additional minimisation of risk to the extinction of the dolphin population in Port Phillip Bay.




Unquantifiable costs are the same as for Option B plus: Loss of profits to whale swim sector and potential threat to the sustainability of marine mammal tour industry in Port Phillip Bay.

Higher benefits than Option B due to conservation benefits from prohibiting whale swims. Much higher costs than Option B due to loss of tourism from prohibition of whale swims.

Option D (Variation of proposed regulations also requiring permits for seal swim tours)

Up to between $151.8m and $206.5m benefits for minimisation of risks to potential tourist benefits (whale and seal tours). Unquantifiable benefits are the same as for Option B plus: additional specific minimisation of risk arising from seal swims outside of breeding colonies to seal conservation and protection, human safety and sustainability of the seal tour industry.




Unquantifiable costs are the same as for Option B plus: Additional inconvenience cost and potential major foregone revenues for seal swim operators due to seal swim permit conditions.

Marginally higher benefits than Option B due to conservation benefits from requiring permits for seal swim tours. Higher costs than Option B due to added requirement for seal swim tour permits.

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Table of Contents

�HSUMMARY .................................................................................................................................... ��HIII �HTABLE OF CONTENTS ..................................................................................................................... ��HIX �HPRELIMINARY................................................................................................................................ ��HXI �HBACKGROUND................................................................................................................................ ��H1

�H1.1. INTRODUCTION................................................................................................................................. ��H1 �H1.2 MARINE MAMMALS IN VICTORIA .......................................................................................................... ��H3

��H1.2.1 Whales and Dolphins ............................................................................................................ ��H3 ��H1.2.2 Seals...................................................................................................................................... ��H5

��H1.3 HUMAN INTERACTIONS WITH MARINE MAMMALS .................................................................................... ��H8 ��H1.3.1 Whale watching in Victoria................................................................................................... ��H8 ��H1.3.2 Seal tourism in Victoria....................................................................................................... ��H11

��H1.4 RELEVANT GOVERNMENT POLICIES AND STRATEGIES ............................................................................... ��H13 ��H1.5 RELEVANT LEGISLATION..................................................................................................................... ��H13

��H1.5.1 Introduction ........................................................................................................................ ��H13 ��H1.5.2 Legislative background ....................................................................................................... ��H14 ��H1.5.3 Recent Act amendments..................................................................................................... ��H15

��H1.6 RELEVANT GUIDELINES...................................................................................................................... ��H17 ��H1.6.1 Australian National Guidelines for Whale and Dolphin Watching ..................................... ��H17 ��H1.6.2 National Strategy to Address Interactions between Humans and Seals: Fisheries, Aquaculture and Tourism............................................................................................................. ��H17 ��H1.6.3 Treasury guidelines on cost recovery.................................................................................. ��H18

��H1.7 CONSULTATION TO DATE ................................................................................................................... ��H19 ��H2.0 THE PROBLEM AND THE POLICY OBJECTIVE............................................................................. ��H22

��H2.1 THE NATURE AND EXTENT OF THE PROBLEMS......................................................................................... ��H22 ��H2.1.1 Risks to the conservation and protection of marine mammals .......................................... ��H24 ��H2.1.2 Risks to public safety........................................................................................................... ��H28 ��H2.1.3 Maintaining a sustainable tourism industry....................................................................... ��H30 ��H2.1.4 Minimising use conflicts...................................................................................................... ��H31 ��H2.1.5 Cost recovery – balancing equity and efficiency................................................................. ��H31 ��H2.1.6 Risk analysis........................................................................................................................ ��H32

��H2.2 POLICY OBJECTIVES OF REGULATORY PROPOSAL ..................................................................................... ��H32 ��H2.3 NEED FOR INTERVENTION .................................................................................................................. ��H33 ��H2.3.1 MARKET FAILURE.......................................................................................................................... ��H33 ��H2.3.2 PREFERENCE FAILURE..................................................................................................................... ��H34 ��H2.4 FEASIBILITY OF INTERVENTION: COMPLIANCE ISSUES ............................................................................... ��H35

��H3.0 IDENTIFICATION OF VIABLE OPTIONS...................................................................................... ��H38 ��H3.1 POSSIBLE OPTIONS FOR CONSERVATION AND SAFETY REGULATIONS (OTHER THAN FOR FEES) ........................... ��H38 ��H3.2 POSSIBLE FEES OPTIONS .................................................................................................................... ��H40

��H4.0 ASSESSMENT OF COSTS AND BENEFITS ................................................................................... ��H42 ��H4.1 INTRODUCTION ............................................................................................................................... ��H42 ��H4.2 THE BASE CASE................................................................................................................................ ��H42

��H4.2.1 Defining the base case........................................................................................................ ��H42 ��H4.2.2 Consequences of the base case .......................................................................................... ��H43

��H4.3 ASSESSMENT OF OPTIONS A, B, C AND D (EXCLUDING FEES).................................................................... ��H44 ��H4.3.1 Option A: (non‐regulatory option) ...................................................................................... ��H44 ��H4.3.2 Option B: The proposed regulations (not including fees).................................................... ��H46 ��H4.3.3 Option C: (Variation of proposed regulations prohibiting whale swim tours) .................... ��H52 ��H4.3.4 Option D: (Variation of proposed regulations requiring permits for all seal swim tours)... ��H55

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��H4.3.5 Comparison of 10‐year costs and benefits between Options A, B, C, and D....................... ��H58 ��H4.4 SELECTION OF PREFERRED OPTION A, B, C OR D (EXCLUDING FEES) ........................................................... ��H59 ��H4.5 ASSESSMENT OF FEES OPTIONS 1, 2 AND 3........................................................................................... ��H61

��H4.5.1 Option 1: Full cost recovery fees including law enforcement costs .................................... ��H62 ��H4.5.2 Option 2: Partial cost recovery fees (2009/10) excluding law enforcement costs – the proposed fees............................................................................................................................... ��H63 ��H4.5.3 Option 3: Maximum partial cost recovery fees (2018/19) excluding law enforcement...... ��H64 ��H4.5.4 Comparison of 10‐year fee costs, equity and certainty between Options 1, 2, and 3 ........ ��H64

��H4.6 SELECTION OF PREFERRED FEES OPTION 1, 2, OR 3 ................................................................................. ��H65 ��H5.0 NATURE AND EFFECTS OF PREFERRED OPTION........................................................................ ��H67

��H5.1. EXPLANATION OF PROPOSED REGULATIONS.......................................................................................... ��H67 ��HPart 1 – Preliminary ..................................................................................................................... ��H68 ��HPart 2 – Prescribed minimum distances....................................................................................... ��H68 ��HPart 3 – General restrictions on activities relating to marine mammals ..................................... ��H71 ��HPart 4 – Prohibitions on activities in Logan’s Beach Exclusion Zone............................................ ��H71 ��HPart 5 – Marine mammal tour permits........................................................................................ ��H71 ��HEnforcement ................................................................................................................................ ��H73

��H5.2. EFFECTS OF PROPOSED REGULATIONS ................................................................................................. ��H73 ��H5.2. IMPACT ON SMALL BUSINESS ............................................................................................................. ��H74 ��H5.3. IMPACT ON ADMINISTRATIVE BURDEN................................................................................................. ��H74 ��H5.4. COMPARISON WITH OTHER JURISDICTIONS........................................................................................... ��H75

��H6.0 NATIONAL COMPETITION POLICY TESTS.................................................................................. ��H76 ��H6.1 COMPETITION PRINCIPLES AND GUIDELINES........................................................................................... ��H76 ��H6.2 NCP ASSESSMENT ........................................................................................................................... ��H77

��H7.0 EVALUATION STRATEGY ......................................................................................................... ��H78 ��H8.0 CONCLUSIONS........................................................................................................................ ��H79 ��HGLOSSARY OF TERMS AND ACRONYMS ........................................................................................ ��H81 ��HREFERENCES................................................................................................................................. ��H84 ��HAPPENDICES................................................................................................................................. ��H88

��HAPPENDIX 1 – ESTIMATION OF COSTS (QUANTIFIABLE AND UNQUANTIFIABLE) OF THE PROPOSED REGULATIONS (OPTION

B) – EXCLUDING COST OF FEES.................................................................................................................. ��H89 ��HAPPENDIX 2 – ESTIMATION OF QUANTIFIABLE AND UNQUANTIFIABLE BENEFITS OF PROPOSED NON‐FEE REGULATIONS (OPTION B) ........................................................................................................................................ ��H102 ��HAPPENDIX 3 – ESTIMATION OF QUANTIFIABLE COSTS OF OPTION C – EXCLUDING COST OF FEES .......................... ��H111 ��HAPPENDIX 4 – CALCULATION OF PRESCRIBED MARINE MAMMAL TOUR PERMIT FEES UNDER OPTIONS 1, 2 (THE PROPOSED FEES) AND 3......................................................................................................................... ��H113 ��HAPPENDIX 5 – ESTIMATED COSTS OF FEES OPTIONS 1, 2 AND 3 INCLUDING THE COST OF THE PROPOSED FEES UNDER REGULATORY OPTIONS B, C AND D ......................................................................................................... ��H127 ��HAPPENDIX 6 ‐ COMPARISON OF PROPOSED REGULATIONS WITH OTHER JURISDICTIONS ...................................... ��H131 ��HAPPENDIX 7 – COMPARISON OF PROPOSED REGULATIONS WITH EXISTING REGULATIONS ................................... ��H134 ��HAPPENDIX 8 ‐ PROPOSED REGULATIONS................................................................................................... ��H145

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Preliminary This Regulatory Impact Statement (RIS) has been prepared to fulfil the requirements of the Subordinate Legislation Act 1994 and to facilitate public comment on the proposed regulations. The RIS contains information on:

• the nature and extent of the problem to be addressed by the proposed regulations, including relevant research and investigations;

• the policy objectives of proposed solutions to the problem;

• public consultation to date;

• the case for Government intervention;

• the authorising legislation, objectives, nature and effects of the proposed regulations;

• alternatives to the proposed regulations;

• a cost-benefit analysis of the proposed regulations and alternative policy options;

• National Competition Policy tests; and

• an evaluation strategy.

Public comments and submissions are invited on the proposed regulations, in response to information provided in this RIS. All submissions will be treated as public documents.

Written comments and submissions should be forwarded no later than 5 pm on 25 September 2009.

The preferred method of submission is by email to:

[email protected]

Submissions can also be mailed to:

Marine Mammals Regulations Review Wildlife Management Unit Biodiversity and Ecosystem Services Department of Sustainability and Environment Level 2, 8 Nicholson Street EAST MELBOURNE VIC 3002.

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1.0 Background

1.1. Introduction

This regulatory impact statement assesses the proposed Wildlife (Marine Mammals) Regulations 2009 (‘the proposed regulations’), which are to be made under the Wildlife Act 1975 (‘the Act’).

The Act and Regulations are administered by the Department of Sustainability and Environment (DSE), on behalf of the Minister for Environment and Climate Change and the Secretary to the Department of Sustainability and Environment.

The objectives of the proposed regulations are to:

(a) provide for the long term protection of marine mammals by-

(i) prohibiting or regulating activities connected with whale and seal watching;

(ii) prohibiting or regulating activities in the vicinity of whales and seals;

(iii) prescribing conditions for whale watching tour permits, whale swim tour permits and seal tour permits; and

(iv) prescribing minimum approach distances for whales and seals; and


In the Victorian context, the term ‘marine mammal’ includes whales, dolphins and seals.�F

1 As dolphins are a type of whale, the proposed regulations and this RIS sometimes include dolphins within the meaning of ‘whale’; and at other times refer to dolphins specifically.

A ‘whale watching tour’ is defined in the Act as ‘an activity conducted for profit that involves causing a vessel or aircraft to approach one or more whales at a distance, that is less than the prescribed minimum distance for the kind of aircraft or vessel, for the purpose of enabling persons on the vessel or aircraft to observe the whale or whales.’

The proposed regulations are intended to replace the existing Wildlife (Whales) Regulations 1998 (‘the existing regulations’) which were due to sunset in late 2008. However, following recent amendments to the Act relating to marine mammals, the existing regulations have been extended for 12 months (until 30 November 2009)�F

2 for review and incorporation of new provisions relating to national strategies and guidelines regarding marine mammals, including seals. These are the Australian National Guidelines for whale and dolphin watching 2005 (ANG) and the National Strategy to Address Interactions between Humans and Seals: Fisheries, Aquaculture and Tourism (National Seal Strategy) developed through the Natural Resources Management Ministerial Council with input from various stakeholders. Copies of these national guidelines can be obtained from <http://www.environment.gov.au/> and <http://www.daff.gov.au>.

DSE conducted a review of the existing regulations in 2008-2009. The review incorporated consultation with researchers and tour operators, operational experience by Departmental officers, and relevant national guidelines.

1 Formal taxonomic definitions are given in the Act or proposed regulations; and in the glossary to this RIS. 2 Subordinate Legislation (Wildlife (Whales) Regulations 1998 - Extension of Operation) Regulations 2008.

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The proposed regulations will:

• Create a sanctuary zone to protect Southern Right Whales at Logan’s Beach;

• Limit approach distances for recreational and commercial vessels, aircraft and people to marine mammals;

• Regulate human behaviour in close proximity to marine mammals; and

• Specify the conditions of marine mammal tour permits.

Some of the key changes under the proposed regulations include:

• Increased protection for whales, dolphins and seals from high impact vessels, in line with national standards.

• Greater protection for large whales from close approaches by boats or aircraft, and for whales or dolphins in distress.

• Increased protections for seals, especially at breeding colonies during the summer breeding season.

• New permits for air-based whale watching and boat-based seal watching tours, allowing tour operators closer access to animals than the general public.

• Clearer conditions for dolphin swim tours, restricting the amount of time tours can spend in close proximity to dolphins.

Full details of the proposed regulations are presented in Part 5.1 and Appendix 7 of this RIS, including a comparison with the existing regulations.

Under section 9(1)(a) of the Subordinate Legislation Act 1994, a regulatory impact statement (RIS) is required to be prepared for all proposed regulations (collectively known as ‘statutory rules’) unless ‘the proposed ��Hstatutory rule would not impose an appreciable economic or social burden on a sector of the public’.

This regulatory impact statement (RIS) has been prepared to fulfil this requirement. The cost-benefit assessment in Part 4.0 of the RIS identifies the appreciable economic or social burdens to be imposed by the proposed regulations.

To set the scene for this RIS, and to assist in identifying and describing the problem to be addressed by the proposed regulations, Part One provides some general background information about relevant legislation and policies regarding marine mammals in general, and the proposed regulations in particular. This information is provided solely to assist interested parties in better understanding the nature and effects of the proposed regulations within their legislative, economic and social context. It is important to emphasise, however, that the RIS is concerned only with the proposed regulations.

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1.2 Marine mammals in Victoria

1.2.1 Whales and Dolphins

Twenty-five species of whales live in, or migrate through, Victorian waters, which includes all waters up to three nautical miles from the coast of Victoria. Seven species of whale are known to occur regularly in Victorian waters. These are the Southern Right whale, Humpback whale, Blue whale, Bottlenose dolphin, Killer whale, Pilot whale and Common dolphin. A number of other whale species have also been recorded in Victoria.

There is little data available on population levels or trends of migratory species that periodically visit Victorian waters.�F

3 However, some limited data is available on the resident Bottlenose dolphin population of Port Phillip Bay data (as discussed below).

Southern Right Whales

Southern Right whales migrate to traditional breeding grounds off southern Australia annually, staying from May to October. Several of these sites are located in Victorian waters, including most famously, Logan’s Beach near Warrnambool. The Southern Right Whale is listed on the International Union for Conservation of Nature (IUCN) Red List and is also listed as endangered under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), and threatened under the Victorian Flora and Fauna Guarantee Act 1988 (FFG Act).

Humpback Whales

Humpback Whales use Bass Strait as a primary migration route. They pass through Bass Strait as southerly migrants from Queensland between October and December, and as northerly migrants from Antarctic waters between May and July. The Humpback whale is listed on the IUCN Red List, listed as vulnerable under the EPBC Act and is listed as threatened under the FFG Act.

Blue Whales

Blue Whales are listed in the IUCN Red List and as endangered under the EPBC Act, and also as threatened under the FFG Act. Blue Whales migrate through and feed in the Bonney Upwelling off Southern Australia between November and April each year and feed on surface krill which forms in response to the upwelling of nutrient-rich, cool water. The area is one of only twelve known Blue Whale feeding grounds in the world.

Bottlenose Dolphins

Worldwide, two species of Bottlenose dolphins are recognised: Tursiops truncatus, which consist of inshore and offshore eco-types, and Tursiops aduncus, a coastal Indo-Pacific type known to extend south into temperate waters down the east coast of Australia. Recent genetic studies however suggest that the taxonomy of these species is more complex. There is genetic evidence for three genealogically distinct lineages of bottlenose dolphins in south-eastern and southern Australia.�F

4 Recent genetic data strongly suggest that the Victorian coastal bottlenose dolphin population, currently classified as Tursiops aduncus, is unique and that it is not exchanging genes with other characterised Australian or world-wide populations

3 Such data would be unlikely to be meaningful, even if it were available, because populations of migratory species are influenced by factors other than wildlife management across the (international) range of each species. 4 Moller et al, 2008.

4

of dolphins. The data suggests that these dolphins have been isolated for a substantial period of time and are likely to be locally adapted.�F

5

Port Phillip Bay is home to a resident population of Bottlenose dolphins estimated to number between 90 and 120 individuals. The available evidence from records of cetacean strandings and previous anecdotal observations indicates that the current population is smaller than in the past, reflecting a loss of fisheries habitat in recent decades.�F

6

The dolphins in Port Phillip Bay use their home range for all aspects of their ecology, including their main activities, foraging and feeding, as well as socialising, resting, and the protection and rearing of young. The population of Bottlenose dolphins in Port Phillip Bay is vulnerable to extinction due to its small size, female natal philopatry (as discussed below), its restricted home range and the human activities within the home range that are likely to be having an adverse impact on the dolphins.

Female natal philopatry refers to females tending to remain in the population and area in which they were born. They rear their young within the maternal home range and the female offspring remain with the group. The consequence of this natal philopatry is that if the females in a population become extinct, then it will take a very long time for females to replace them from elsewhere.�F

7

While the males may venture up and down the coast periodically as indicated by research conducted on similar populations in Australia, they are also likely to practise natal philopatry, and only breed where they were born, but within a larger home range.

This natal philopatry makes the population vulnerable to extinction as they rely on the Bay for all aspects of their ecology. The Port Phillip genotype is classified as ‘Endangered’ on the Advisory List Of Threatened Vertebrate Fauna In Victoria – 2007. The Port Phillip dolphins were nominated under the FFG Act, but the nomination was rejected for taxonomic reasons rather than conservation reasons.

The Gippsland Lakes are home to an estimated 50 to 120 inshore Bottlenose dolphins – with genetics similar to the Port Phillip genotype Tursiops spp. This population moves throughout the lake complex, including upstream in rivers. Unlike in Port Phillip Bay, there is regular mixing of resident Lakes dolphins with migratory animals. Environmental perturbations such as floods and algal blooms seem to have a detrimental effect on these dolphins.�F

8 During these events, animals have shown evidence of high levels of stress such as skin infections and poxy lesions. High levels of mercury have also been recorded in Lakes dolphins. There have been a number of recent strandings and deaths, usually involving a single, isolated animal.

There are occasional sightings of inshore bottlenose dolphins in other parts of Victoria, but little is known about them.

Killer whales, Pilot whales, Common dolphins and other whales

Killer whales, Pilot whales and Common dolphins are also regularly sighted along the Victorian coastline, particularly offshore from Portland, Apollo Bay, the Port Phillip Heads, Wilson’s Promontory, Corner Inlet and the Gippsland Lakes. Sperm whales and Minke whales have also been recorded in Victorian waters, although most sightings occur when a

5 Charlton et al. 2006. 6 Hale, P., (2002) Interactions between Vessels and Dolphins in Port Phillip Bay, Final Report, September 2002. Department of Natural Resources and Environment, Melbourne. 7 Hale, P., (2002) Interactions between Vessels and Dolphins in Port Phillip Bay, Final Report, September 2002. Department of Natural Resources and Environment, Melbourne. 8 Personal communication to DSE from Jeff Weir, Dolphin Research Institute.

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dead whale has become beach washed or stranded. A number of other whale species have been recorded in very small numbers as stranded or beach washed including False Killer whales, Fin whales, and a number of beaked whales such as the Strap-toothed whale, Cuvier's Beaked Whale and Gray's Beaked Whale.�F

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1.2.2 Seals

Six species of seal commonly occur in Victoria, of which two are known to breed here: the Australian Fur Seal and the New Zealand Fur Seal. Neither of these species are listed as vulnerable or threatened in Victoria. The remaining four species, the Southern Elephant Seal, Leopard Seal, Sub-Antarctic Fur Seal and Crab-eater Seal, occur less frequently and do not breed in Victoria.

During the late 18th and early 19th centuries, seals were heavily hunted and populations were dramatically reduced. While these populations are gradually recovering, it is believed that numbers of Australian and New Zealand Fur Seals today remain lower than those existing prior to European settlement. The Australian Fur Seal population in Victoria has been estimated to be about 68,000�F

10, vastly outnumbering the New Zealand Fur Seal population which is estimated to be about 1,000��F

11.

There are six breeding colonies��F

12 of Australian and New Zealand fur seals in Victoria (Figure 1). Australian fur seals breed at five of those sites and New Zealand fur seals breed at four.

Figure 1 – Location of recognised seal breeding colonies in Victoria

9 Source: Atlas of Victorian Wildlife (June 2007). 10 Kirkwood et al 2005. The total population of Australian Fur Seals throughout Bass Strait is estimated at about 92,000. 11 Kirkwood et al 2009. 12 The National Seal Strategy defines a breeding colony as an area where at least 15 pups have been recorded in at least one survey over the past 20 years.

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The most significant colony is at Seal Rocks at Phillip Island, where around a quarter of all seals in Victoria are located. This site has had a long history of human contact, and continues to be the most popular location to view seals. The area became a sanctuary in 1928 and was declared a State Fauna Reserve in 1966. Other breeding colonies are located at Lady Julia Percy Island in western Victoria, at Cape Bridgewater, at Kanowna Island off the southern coast of Wilson’s Promontory, at Rag Island in the Cliffy Group east of Wilson’s Promontory, and at the Skerries at Croajingalong National Park. Several other non-breeding locations are haul-out sites for Australian Fur Seals that support a well-established seal watching industry. These sites include Marengo Reef at Apollo Bay and the Port Phillip Bay seal platform (also known as ’Chinaman’s Hat’) (see Table 1). Other significant haul-out sites that may support breeding in the future include Moonlight Head (west of Cape Otway) and Gabo Island (east of Mallacoota in East Gippsland).

Seals forage throughout their range. For example, seals born on Victorian Islands forage in waters around Victoria, Tasmania, South Australia and New South Wales. Overall, it appears that the total Australian fur seal population has increased and it may continue to do so as more territory is occupied at the major Victorian breeding sites. There has been a significant increase in the number of pups born at most Victorian breeding sites since the 1970s, with the most dramatic rise at the Skerries which increased from an estimated 77 pups in 1986 to around 3,000 pups in 2002 (see Table 1).

New Zealand fur seals breed in southern Australia, mainly in South Australia, but also on the coasts of Western Australia, New South Wales, Victoria and Tasmania. Historical information indicates that the range of New Zealand fur seals once extended through Bass Strait and included islands in the Furneaux Group in eastern Bass Strait, where seals were abundant. Several islands have not been reoccupied since their populations were removed by early commercial sealing. However a number of breeding colonies in Victorian waters have become re-established in the past decade or so. There are currently four small breeding colonies of New Zealand fur seals in Victoria at Cape Bridgewater, Kanowna Island, The Skerries, and a very small colony at Lady Julia Percy Island (see Table 1).

Despite the recent increases, the population of fur seals in Australian waters is probably still smaller than it was historically (pre-sealing), and may be only half the original size.��F

13 This increase in numbers is likely to be due to the gradual recovery from direct exploitation, a response to legal protection given to the species, and natural long-term population fluctuations.��F

14

13 Shaughnessy, 1999. 14 Department of Agriculture, Fisheries and Forestry, 2007.

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Table 1 – Locations of seal populations and estimated numbers of fur seal pups at breeding sites in Victoria

Site Location Seal species (1) & Site type (2)

Estimated number of Australian Fur Seal pups at breeding site��F

15

Records of New Zealand Fur Seal pups at breeding sites��F

16 Year AUFS pups Year NZFS Pups Cape Bridgewater -38.380 S

141.400 E AUFS–Haul-out (OP) NZFS–Breeding

2002 8* 2003 (Jan) 2008 (Jan)

0 40

Lady Julia Percy Island

-38.427 S 141.996 E

AUFS–Breeding; NZFS–Breeding

1976 1986 2000 2002

2,946 1,163 4,867 6,940

2001 (Jan) 2003 (Jan) 2008 (Jan)

4 15 15

Seal Rocks -38.300 S 145.000 E

AUFS–Breeding 1972 1986 1991 1997 2002

1,850 2,088 2,826 4,749 5,744

Kanowna Island -39.155 S 146.310 E


1986 1997 1998 2000 2002

1,546 1,648 1,561 1,724 2,707

2002 (Jan) 2006 (Jan) 2007 (Jan) 2008 (Jan)

~30 73 ± 16 76 ± 16 55 ± 4

Rag Island, Cliffy Group

-38.955 S 146.679 E

AUFS–Breeding 2002 35

The Skerries -37.750 S 149.520 E


1986 1999 2000 2002

77 1,867 2,237 2,925

2000 (Jan) 2001 (Jan) 2003 (Jan) 2008 (Jan)

75 ± 5 78 ± 4 89 ± 6 74 ± 15

Marengo Reef, Apollo Bay

-38.670 S 143.830 E

AUFS–Small haul-out

Port Phillip Bay: Chinaman’s Hat & Pope’s Eye

-38.330 S 144.830 E

AUFS–Small haul-outs

(1) Seal Species: AUFS = Australian fur seal; NZFS = New Zealand fur seal (2) Site type:

• Breeding: at least 15 pups recorded in at least one survey over the past 20 years • Haul-out (OP): haul-out with occasional pupping (1–14 pups recorded in at least one survey over the past 20 years) • Haul-out: sites that are frequented by seals

* Cape Bridgewater does not qualify as an AUFS breeding site as less that 15 pups have been recorded at that site

15 Kirkwood et al 2005. 16 Kirkwood et al 2009.

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1.3 Human interactions with marine mammals

Under the Act, the hunting or killing of whales (including dolphins) is prohibited in Victoria, except by or under the direction of an authorised officer for the welfare of the whale. Most human interactions with marine mammals occur as a result of whale, dolphin and seal tourism, whale strandings or recreational disturbance of whales and dolphins.

1.3.1 Whale watching in Victoria

The popularity of whale watching has increased significantly in recent years. This industry is now well established and provides an important tourist attraction in Victoria. Victoria’s main whale watching activities are—

• Land-based viewing of Southern right whales and Humpback whales on the west coast from Logan’s Beach at Warrnambool to Portland;

• Air and sea based viewing on the west coast, including flights to the Bonney Upwelling out of Portland;

• Tour vessel based swimming with and viewing of dolphins at the southern end of Port Phillip Bay; and

• A small vessel-based tour industry viewing dolphins in the Gippsland Lakes.

In 2008, the total number of whale watchers in Victoria was 56,310, which was 3.4 % of the national total of 1,635,374. There were 11 tour operators with an estimated 17 employees in total. Total tourist expenditure on whale watching was $4,238,862.��F

17

Land based whale watching

Warrnambool’s whale watching industry is estimated to contribute $17 million annually to the region.��F

18 Southern Right Whales visit the area between June and October to calve and this offers unique viewing opportunities. Warrnambool and Portland attracted up to 37,190 land-based whale watchers in 2008. A viewing platform has been constructed at Logan’s Beach and new fixed binoculars were installed there in 2008.��F

19

Sea & air based whale watching

There is an emerging whale watching industry along the west coast of Victoria between Warrnambool and the South Australian border.

In the Warrnambool region up to six tour operators run vessel-based tours viewing the Southern Right Whales during the winter months.

Both sea and air-based whale watching tours are conducted in the area known as the Bonney Upwelling south-west of Portland. The Bonney Upwelling is an abundant feeding ground for blue whales, one of only three known coastal blue whale feeding areas in the Southern Hemisphere, outside Antarctica. Currently, there is one helicopter-based tour operator and at least one boat-based tour operator that visit the Bonney Upwelling. The area covered by the Bonney Upwelling is managed by three different jurisdictions - the Victorian, South Australian and the Commonwealth Governments - and it is considered appropriate to have a consistent management approach between these.

17 O’Conner et al, June 2009. 18 Williams, 2001. 19 O’Conner et al, June 2009.

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Dolphin watching & swimming

Victoria’s dolphin watching/swim tour industry is focused in Port Phillip Bay, although there is also an emerging dolphin watching industry in the Gippsland Lakes.

Many types of vessel use the dolphins’ habitat: high and low-speed recreational vessels, commercial shipping, passenger ferries, dolphin swim-tours and dolphin sightseeing tours. Numerous boat charter operations (such as fishing charters) across the state offer whale (and seal) watching opportunities as part of their tours.

Private recreational vessels also often interact with the dolphin population to view them at close quarters. Their use of the dolphin habitat is increasing, as are their interactions with dolphins. Of these, dolphin swim-tours present the largest potential impact due to their sustained interaction with (proximity to) the dolphins, especially during daylight hours in the summer months, November to May. ��F

20

Port Phillip Bay

Currently three commercial eco-tourism businesses operate under four swim tour permits in the Bay. The swim tour operators now cater for nearly 11,600 passengers a year��F

21 and have been in operation since the late 1980’s. The dolphin watch/swim industry was estimated to be worth $1 million in direct expenditure per year in 2004��F

22, while total expenditure for the industry, incorporating indirect expenditure, was estimated at close to $8 million.��F

23

Attempts by dolphin swim tour operators to interact with dolphins continue for about six months of the year. Data from compulsory returns from swim tour operators show that between October 2005 and March 2006, approximately 7,300 people attempted to swim with dolphins with the three swim tour operators that were in operation at the time. The tour operators conducted over 350 trips over the six month period, with 100 trips conducted in the month of February alone. Trips generally lasted for a minimum of three and a half to four hours with some lasting as long as six hours. In the middle of summer when demand was high, the existing operators may have run eight dolphin-swim trips between them on the one day.

The graphs in Figures 2 and 3 below show the increase not only in dolphin swim tours between the dolphin swim seasons of 2004/2005 and 2005/2006, but also the increase in the number of passengers travelling on the tours to interact with Port Phillip Bay Dolphins.��F

24

The number of dolphin swim tours per month grew by an average of 14.5 (Figure 2), while the average number of passengers on each tour grew by an average of 3.86 between 2004/05 and 2005/06 (Figure 3). Data is unavailable for 2006/07 and 2007/08. Data for 2008-09 is available but has not been fully analysed. The 2008/09 figures��F

25 show roughly similar figures to these, suggesting there has been little if any significant growth in passenger numbers since 2005/06.

20 Ibid. 21 Data sourced from returns submitted to DSE by permit holders. 22 IFAW, The Growth of Whale Watching Tourism in Australia, 2004. 23 Ibid. 24 Calculated from compiled dolphin swim return data from Parks Victoria. 25 Figures for 2006/06 and 2007/08 are unavailable.

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Figure 2 - The number of PPB dolphin-swim tours increases per month over summer

0

20

40

60

80

100

120

October November December January February March

Month

Num

ber o

f Boa

t Tou

rs

2004/2005 2005/2006

Figure 3 - Average number of passengers per PPB dolphin-swim tour peaks in January

0

5

10

15

20

25

30

October November December January February March

Month

Ave

rage

Num

ber o

f Pas

seng

ers

2004/2005 2005/2006

Gippsland Lakes

Tour boats in the Gippsland Lakes do not currently operate under a tour permit.��F

26 At least one tour boat advertises ‘Dolphin Watching Tours’. Other tour boats and recreational vessels regularly encounter dolphins. There is a high level of boating activity in the lakes, including the popular jet skis, especially in the summer months. Narrow waterways in the Lakes make standard approaches to minimum prescribed distances difficult to implement. Many navigation channels within the lakes are less than 50m wide, and boats are often required to come very close to dolphins just to navigate safely through the lake system. This presents

26 Under the proposed regulations they will require a permit to conduct a ‘whale watching tour’.

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particular challenges for tour operators, especially when observing dolphins in narrow or confined areas. For example, in closed inlets such as Chinaman’s Creek, a location regularly frequented by dolphins, the constant presence of tour and recreational vessels can result in the dolphins being penned in and cut off from other feeding areas.

1.3.2 Seal tourism in Victoria

In recent years, seals have become a significant tourist attraction throughout Australia with over 250,000 people participating in seal tourism activities each year at eight sites in Victorian waters.��F

27 These activities include boat cruises, sea kayak tours, swimming or scuba diving with seals or viewing from aircraft. At some locations, it is also possible to view offshore colonies of seals from land based platforms.��F

28

It is estimated that there are approximately 15-20 commercial seal tourism operators in Victoria, with around 8-10 of these operating in the vicinity of the six seal breeding colonies (see Table 2). However as seal tourism is currently unregulated in Victoria it is difficult to give precise figures on the size and value of the seal tour industry.

Table 2 – Locations within Victoria where tourist operations view seals, including species of seal, number of operators and estimated number of tourists at each location.��F

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Site Seal Species (1) and site type (Breeding/

Haul-out) (2)

No. of tour

operators

Approach type (3)

No. of visits/year

Tourists/year

Cape Bridgewater AUFS–Haul-out (OP); NZFS–Breeding

1, 3 daily in summer

9,000 (4,000 in boat, 5,000 from platform)



at least 2 1 near weekly 1,000−2,000

Seal Rocks AUFS–Breeding at least 4 1, 3, 4 near daily ~12,000−15,000 boat, >200,000 adjacent platform

Kanowna Island AUFS–Breeding; NZFS–Breeding

~2-3 1 near monthly

~2,000


AUFS–Breeding 1 1 several times

~500

The Skerries AUFS–Breeding; NZFS–Breeding

2, 3 several times

~40 (kayak tours)

Marengo Reef, Apollo Bay

Small haul-out 1, 2 daily in summer

1,000−2,000

Port Phillip Bay: Chinaman’s Hat & Pope’s Eye

Small haul-outs 5-10 1, 5 near daily 25,000−30,000

(1) Seal Species: AUFS = Australian fur seal; NZFS = New Zealand fur seal (2) Site type: Breeding: at least 15 pups recorded in at least one survey over the past 20 years.

Haul-out (OP): haul-out with occasional pupping (1–14 pups recorded in at least one survey over the past 20 years). Haul-out: sites that are frequented by seals

(3) Approach type: 1 = Boat cruises (viewing pinnipeds), 2 = Sea kayak tours (viewing pinnipeds), 3 = Viewing from adjacent areas, 4 = Viewing from aircraft, 5 = Swimming and/or scuba diving with pinnipeds

27 Department of Agriculture, Fisheries and Forestry, November 2006. 28 Department of Sustainability and Environment, 2008b. 29 Derived from Department of Agriculture, Fisheries and Forestry, November 2006.

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A number of the seal breeding colonies have current protections due to being located within national parks, coastal parks or conservation reserves (see Table 3). Other than at Kanowna Island, where there is an exclusion zone around the entire island, there are no restrictions on vessels in waters around these sites other than those under general marine regulations.

The seal breeding colony at Kanowna Island is currently located in a Special Protection Area in the Wilsons Promontory Marine National Park. Current restrictions prohibit vessels from approaching within 200 m of Kanowna Island between Nov-Jan inclusive, and within 50 m between Feb and Oct inclusive.

As any proposed regulations around Kanowna Island would either duplicate existing conditions, or be inconsistent with existing conditions, Kanowna Island can not be included in the list of seal colonies covered by proposed regulations.

Table 3 – Reservation status of seel breeding sites under current legislation

Site Area Reservation Site specific protection

Cape Bridgewater

The seal colony is part of the Discovery Bay Coastal Park.

Launching, landing, loading, unloading, mooring, anchoring or operating of vessels prohibited. Feeding or approaching animals is prohibited. The waters offshore from the colony are standard Victorian coastal waters.


The island is a Nature Conservation Reserve declared under the Crown Land (Reserves) Act.

Feeding or approaching animals is prohibited. The waters offshore from the island are standard Victorian coastal waters.

Seal Rocks, Phillip Island

Part of Phillip Island Nature Reserve. Management of this areas is outlined in the Phillip Island Nature Parks Management Plan 2006-2011

Access to Seal Rocks is restricted to permit holders only (for research). Feeding or approaching animals is prohibited.

Kanowna Island

The island is part of Wilson’s Promontory National Park. The waters around the island are in the Wilson’s Promontory Marine National Park. Management of these areas is outlined in the Wilson’s Promontory Marine National Park Management Plan May 2006.

Access (the launching, landing, loading, unloading, mooring, anchoring or operating of all vessels) is prohibited to Kanowna Is. Fishing is prohibited. Feeding or approaching animals is prohibited. The launching, landing, loading, unloading, mooring, anchoring or operating of all vessels is prohibited within 200 m of Kanowna Island between Nov-Jan inclusive, and within 50 m between Feb and Oct inclusive. Licensed tour operators can be permitted by permit access into the Special Protection Area to 100 m of the colony in the breeding season subject to: • demonstration of their conduct in relation to the

environmental protection of the colony • demonstration of an appropriate and quality

interpretation experience.


The island is part of the Seal Island Wildlife Reserve, declared under the Crown Land (Reserves) Act

Feeding or approaching animals is prohibited. The waters offshore from the island are standard Victorian coastal waters.

The Skerries

The islands are part of Croajingolong National Park.

Access is prohibited except with the written permission of the Ranger In Charge. All classes of motorised and non-motorised vessels are prohibited from launching, landing, loading, unloading, mooring and anchoring at the Skerries. Feeding or approaching animals is prohibited. The waters offshore from the islands are standard Victorian coastal waters.

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1.4 Relevant Government policies and strategies

Apart from the Victorian Government’s endorsement of the national guidelines for whale and dolphin watching, and for human interactions with seals (refer Part 1.6 of this RIS) there are no Victorian Government policies or strategies specifically related to human interactions with marine mammals. However, there are some broad policies regarding conservation and ecotourism, as follows.

Growing Victoria Together, released by the then Premier in 2001 and updated in 2005, is a 10 year vision that articulates what is important to Victorians and the priorities that the State Government has set to build a better society. The vision includes the following statement:

The natural environment sustains every aspect of our lives. We must actively conserve and manage it in order to achieve our social and economic goals. Victoria has magnificent alpine, desert, rainforest, grassland, wetland, marine and coastal environments—all of which are critical for the survival of our precious native plants and animals. We need to preserve these diverse environments for future generations to enjoy. ��F

30

Victorian Government policies and strategies recognise that nature-based tourism is a significant opportunity for the state, particularly for visitors from overseas.��F

31��F

32 Building Our Industries For The Future: Action Plans for Victorian Industry and Manufacturing is the next step by the Victorian Government to secure a strong future for the state’s industry base so it will continue to deliver sustainable and skilled jobs. In relation to tourism, this policy document includes the following statements:

Government priorities for the tourism industry include targeting emerging international and high-yield niche markets, growing regional tourism, attracting more business conferences and exhibitions, developing Victoria’s major events industry, and strengthening industry skills and service standards.

These initiatives are developed and delivered within the overall framework of the 10-Year Tourism and Events Industry Strategy, which provides a blueprint for the long-term development of Victoria’s tourism industry.

The Government has released a new Regional Tourism Action Plan 2009–2012 to boost economic benefits and tourism jobs growth in regional Victoria. $13.3 million has been provided over four years to support tourism outside Melbourne.��F

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1.5 Relevant legislation

1.5.1 Introduction

The proposed regulations are made under sections 85A and 87 of the Wildlife Act 1975 (‘the Act’). The purposes of the Act are to:

(a) establish procedures in order to promote- (i) the protection and conservation of wildlife; and (ii) the prevention of taxa of wildlife from becoming extinct; and (iii) the sustainable use of and access to wildlife; and

30 Premier of Victoria, 2005. 31 Tourism Victoria (2008) Victoria’s Nature-based Tourism Strategy 2008-2012. Tourism Victoria, Victoria. 32 Public Land Management - Coasts and Alpine Branch (2002) Sustainable Recreation and Tourism on Victoria's Public Land Department of Natural Resources and Environment, Melbourne. 33 http://www.tourism.vic.gov.au/strategies-and-plans/strategies-and-plans/regional-tourism-action-plan/

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(b) prohibit and regulate the conduct of persons engaged in activities concerning or related to wildlife.

Section 85A of the Act provides as follows— (1) The Governor in Council may make regulations for or with respect to—

(a) regulating or prohibiting activity in the vicinity of a whale, being activity that may disturb or interfere with the whale—

(i) by persons in vessels or aircraft; or (ii) by persons in the water or on the land;

(b) prescribing penalties not exceeding twenty penalty units for a contravention of the regulations; (c) any other matter or thing which is authorised or required by this Part to be prescribed to give effect to this Part.

(2) Regulations under this section may be of general or of specially limited application and may differ according to differences in time, place or circumstance. (2A) Regulations made under this Part may confer a discretionary authority or impose a duty on the Minister, the Secretary or an authorised officer. (3) Regulations made under this section may be disallowed in whole or in part by resolution of either House of Parliament in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962��F

34. (4) Disallowance under sub-section (3) is deemed to be disallowance by Parliament for the purposes of the Subordinate Legislation Act 1962.

Section 87 of the Act is a general regulation-making power enabling the Governor in Council to make regulations concerning a wide range of matters for the management, control, conservation, and propagation of wildlife; and for the preservation and maintenance of wildlife habitat, amongst other things.

Marine mammals (that is. whales, dolphins and seals) fall within the definition of protected wildlife under section 3 of the Act. Under section 58 of the Act, it is an offence to wilfully molest, injure, disturb, chase or herd protected wildlife or to separate protected wildlife from its young or cause it to be so separated.

Part X of the Act deals specifically with the protection of whales, including the regulation of whale watching activities. Under section 76 of the Act, it is an offence to kill, injure, take, or interfere with a whale. It is also an offence to treat or possess a whale or any part or product of a whale where the whale has been killed or taken in contravention of the Act (penalty 1000 penalty units).

1.5.2 Legislative background

Various measures, both regulatory and non-regulatory, have been introduced over the last two decades to ensure that dolphins and other whales are not interfered with through tourism or other interactions. These measures have included—

• Introduction of regulations under the Act in 1990 covering all Victorian waters: the Wildlife (Whales) Regulations 1990;

• Establishment of a voluntary code of practice for the Port Phillip Bay dolphin tour operators in 1995 (later abandoned as ineffective);

• Replacement of the 1990 Regulations in 1998 by the existing regulations (the Wildlife (Whales) Regulations 1998) to require dolphin sightseeing tour operators and dolphin

34 Now the Subordinate Legislation Act 1994.

15

swim tour operators to obtain a permit from the responsible department, and to establish controls under these permits. The responsibility for administration and the issue of permits is currently delegated to Parks Victoria; and

• Amendments to the Act made in November 2002 to allow for improved management of tourism involving cetaceans in an ecologically sustainable manner. The Act now makes it an offence to conduct a whale swim without a permit and also requires the Secretary to establish a ‘whale swim tour area’ before seeking expressions of interest and issuing swim tour permits for that area. Under the Act, the Secretary must ensure the level of swim tour activity is managed within an ecologically sustainable threshold. That threshold is to be determined according to the best available information.

Unlike whales, seals have not received special protection under the Act (other than as protected wildlife) until recent amendments were made to the Act in 2008.

1.5.3 Recent Act amendments

In 2008, Part X of the Act was extensively amended by the Wildlife Amendment (Marine Mammals) Act 2008, which introduced improved measures to ensure that any adverse effects from tourism or contact with commercial and recreational vessels are managed appropriately to ensure the long-term conservation of whales, dolphins and seals. In introducing the Bill, the Minister made the following statement in relation to whale and dolphin watching:

As a member of the Natural Resource Management Ministerial Council -- or the NRMMC for short -- Victoria has endorsed the Australian National Guidelines for Whale and Dolphin Watching 2005. The amendments to part X of the Act will enable Victoria to implement these guidelines through the establishment of additional measures to manage interactions with whales and dolphins.

Aircraft-based whale watching has the potential to significantly disrupt the normal behaviour of whales. Repeated disturbances may negatively affect feeding, reproduction, access to habitat and socialising. This can lead to negative consequences for the health of individual animals, as well as general population size and distribution.

To address these issues, the bill does three key things. Firstly, the bill introduces a permit system for aircraft-based whale-watching tour operators. Secondly, it enables control of the number of operators in environmentally sensitive areas -- areas which are fundamental to the life cycle of whales, such as along the Bonney upwelling. Thirdly, it enables permit conditions to control the frequency of tours and manage the amount of time that an operator can spend in the vicinity of a whale. For these reasons, similar provisions already apply to sea-based whale watching such as whale swim tours.��F

35

A ‘whale watching tour’ is defined in the amended Act as ‘an activity conducted for profit that involves causing a vessel or aircraft to approach one or more whales at a distance, that is less than the prescribed minimum distance for the kind of aircraft or vessel, for the purpose of enabling persons on the vessel or aircraft to observe the whale or whales.’ The significance of this definition is that permits are only required to approach whales closer than the prescribed minimum distances. This means that tour operators may opt to run tours without a whale watching permit, as long as the tours remain beyond the standard prescribed minimum distances. Tour operators with whale watching permits will be allowed closer access than non-permit holders to the whales or dolphin species specified in their permit. (Also refer to the insert on whale watching tours in Part 3.1 of this RIS, which outlines the restrictions imposed on the regulations by the definition of ‘whale watching tour’ in the Act.)

35 Minister for Community Development, 29 May 2008.

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The new Part X of the Act enables the DSE Secretary to make a ‘limited permit area determination’ for a specific area. This replaces the current determination of ‘whale swim areas’ in the existing regulations. A specified maximum number of whale watching and whale swim permits can be issued in each limited permit area, and these are the only areas in which whale swim tours may take place. Permits in these areas may also be subject to special conditions, such as restrictions on the number of trips conducted per day, or different minimum approach distances or cumulative time limits than standard permits.

Seal tourism

In relation to seal tourism, the Minister for Community Development made the following statement:

In 2006, again as a member of the NRMMC, Victoria endorsed the National Strategy to Address Interactions between Humans and Seals: Fisheries, Aquaculture and Tourism. This is also known as the 'National Seal Strategy'. This bill will enable Victoria to implement the tourism component of this nationally agreed strategy.

Seal populations in Victoria are slowly recovering from overexploitation by furriers in the late 18th and early 19th centuries. Disruption during the breeding season may affect this recovery, especially when tourism occurs near 'haul-out' areas where pups may be trampled. Seals are vulnerable to infectious diseases carried by domestic animals and may become dangerous when they lose their fear of humans as a result of feeding.

The bill introduces a framework for licensing commercial seal tourism operators. It introduces a power to make regulations for interactions between people and seals, as a means of implementing the national seal strategy.��F

36

Accordingly, the amendment Act inserted a new Part XA in the Wildlife Act dealing with the protection of seals.

Strandings and entanglements

The amendment Act also improves Victoria's ability to assist whales or dolphins in distress, such as during strandings and entanglements in fishing gear. ��HWildlife officers will be able to direct a person or vessel to cease approaching within 500 metres of, or move up to 500 metres away from, a whale or dolphin. The new emergency management powers will build upon the existing minimum approach distances for whales and dolphins for vessels, aircraft and people.��F

37

Threatened species

The Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) provide for the listing of species as vulnerable or endangered. All whales and dolphins in Commonwealth waters are protected. The Victorian Flora and Fauna Guarantee Act 1988 (FFG Act) provides for the listing of species as threatened. Such species include Southern Right whales, Blue whales and Humpback whales. Under both Acts, action must be taken to protect listed species and implement recovery plans.

Under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), all seals are listed species— they are protected to help ensure their long-term survival. It is an offence to kill, injure, take, trade, keep or move a seal on Australian Government land and in Australian Government waters unless the action is covered by a permit issued by the Minister for the Environment, Water, Heritage and the Arts.

36 Minister for Community Development, 29 May 2008. 37 Minister for Community Development, 29 May 2008.

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Apart from the Prevention of Cruelty to Animals Act 1987, there is no other legislation dealing with marine mammals.

1.6 Relevant guidelines

As indicated in Part 1.5 of this RIS, the Victorian Government has endorsed:

• the Australian National Guidelines for Whale and Dolphin Watching and

• the National Strategy to Address Interactions between Humans and Seals: Fisheries, Aquaculture and Tourism.

1.6.1 Australian National Guidelines for Whale and Dolphin Watching

The Australian National Guidelines for Whale and Dolphin Watching 2005 (ANG) were developed jointly by all Australian, state and territory governments through the Natural Resource Management Ministerial Council; and represent a consistent national policy for the management of whale and dolphin watching. They build upon and replace the Australian National Guidelines for Cetacean Observation, published in 2000.

The guidelines set a national standard and help to inform governments to make consistent decisions when designing policy or legislation for whale and dolphin watching. The guidelines set standards for watching whales and dolphins in the wild, including observations from the land, water or air as well as activities such as swimming and diving, feeding, touching, and making noise in close proximity to cetaceans. They are relevant to all Australian waters (Commonwealth, State and Territory) and cover all people watching whales and dolphins including both commercial operators and the general public.

The guidelines aim to:

• minimise the impacts of whale and dolphin watching on individual cetaceans and on population levels; and

• ensure that people know how to act appropriately when watching whales and dolphins.��F

38

The guidelines are based upon relevant scientific research��F

39 and reflect industry best practice.

1.6.2 National Strategy to Address Interactions between Humans and Seals: Fisheries, Aquaculture and Tourism

The National Strategy to Address Interactions between Humans and Seals: Fisheries, Aquaculture and Tourism (National Seal Strategy) aims to create a nationally coordinated approach to identify and address adverse human-seal interactions. Because all seal species are protected nationally, the Strategy clarifies the intention and requirements of legislation protecting seals in Australian waters to the commercial fishing, aquaculture and tourism sectors. It seeks to guide industry efforts to reduce any adverse impacts on seals while maintaining the ecological sustainability of those industries.

The Strategy identifies objectives and actions for the period 2007–2011; agencies and organisations responsible for each action; timeframes; and performance indicators against which to measure progress and outcomes for each action.

The action plan to reduce adverse human-seal interactions with commercial tourism operations includes the following objectives:

38 Department of the Environment and Heritage, May 2006. 39 Refer to Parts 1.2 and 1.3 of this RIS.

18

1. Obtain quantitative and independent data on the nature and extent of interactions between seals and tourism operations.

2. Minimise and mitigate adverse interactions between seals and tourism operations.

3. Develop and implement robust arrangements to report interactions between seals and tourism operations. ��F

40

4. Encourage tourism industries to embrace stewardship of the marine ecosystem.

Background information to support the Strategy was published in the document National Assessment of Interactions between Humans and Seals: Fisheries, Aquaculture and Tourism.��F

41 In particular, this Strategy emphasises:

• the need to regulate tour activity around seal colonies, particularly those that are easily accessible;

• the need to restrict feeding of seals; and

• the potential for transmission of disease to seals from dogs.

1.6.3 Treasury guidelines on cost recovery

A fee is generally defined as a charge levied in order to recover some or all of the cost of providing a private service. The power to set a fee generally does not authorise the recovery of revenue greater than the cost of the service provided. A tax, by contrast, is an impost levied on some or all members of the community by the Government in order to raise revenue for general expenditure purposes.

The basic justification for the charging of fees by government agencies such as DSE is to recover the costs of services, either in full or in part. There is a user-pays principle involved whereby those who use the services should be obliged to pay the cost of such services, rather than the funding being provided by taxpayers.

The relevant Department of Treasury and Finance guidelines state that user charges should be set on a full cost recovery basis because it ensures that both efficiency and equity objectives are met. There are nevertheless situations where it may be desirable to recover at less than full cost, or not to recover costs at all. Examples of such situations include circumstances where:

• practical implementation issues make cost recovery infeasible;

• there are public goods or benefits to unrelated third parties (sometimes referred to as ‘positive externalities’) or merit goods concerns;

• social policy or vertical equity considerations are considered to outweigh the efficiency objectives associated with full cost recovery;

• the government is providing goods and services on a commercial basis in competition with the private sector; or

• full cost-recovery might adversely affect the achievement of other government policy objectives.

40 Department of Agriculture, Fisheries and Forestry, November 2006. 41 Department of Agriculture, Fisheries and Forestry, 2007.

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1.7 Consultation to date

Consultation with a broad range of stakeholders has already been undertaken to inform the development of the proposed regulations and the RIS. This consultation has occurred in three phases:

Phase 1. Consultation for the Wildlife (Marine Mammals) Amendment Act 2008

Preliminary consultation with key stakeholder groups and government agencies took place during the drafting of the Wildlife (Marine Mammals) Amendment Act 2008, which came into effect in August 2008. This consultation ensured that appropriate amendments were made to the Wildlife Act 1975 to enable new regulations to be put in place to implement the Australian National Guidelines for Whale and Dolphin Watching 2005 (ANG) and the National Strategy to Address Interactions between Humans and Seals: Fisheries, Aquaculture and Tourism (National Seal Strategy).

Phase 2. Review of the Wildlife (Whales) Regulations 1998

Between August and October 2008 key stakeholder groups and government agencies were invited to participate in a review of the Wildlife (Whales) Regulations 1998, and to review the policies outlined in the ANG and the National Seal Strategy. Details of this phase are outlined in the Table 4 below.

Table 4 – Details of consultation phase 2

Date Consultation Details

12 August 2008 Stakeholders contacted by letter requested to submit comments by 29 August 2008 and invited to attend meeting on 22 September 2008

26 August 2008 Wildlife Amendment (Marine Mammals) Act 2008 received royal assent

20 August 2008 Public notice in Herald-Sun advertising the review of the Wildlife (Whales) Regulations 1998 and the 22 September forum.

28 Aug – 3 Sept 2008 Public notices in regional newspapers advertising the review of the Wildlife (Whales) Regulations 1998 and the 22 September forum.

29 August 2008 Stakeholder initial comments due

22 September 2008 External Stakeholder meeting (Industry, research and other groups)

25 September 2008 Internal Stakeholder meeting (Government agencies)

9 October 2008 Feedback from stakeholder meeting due

Comments and suggestions from this consultation phase were used to inform the development of a draft set of regulatory proposals for the new regulations.

Phase 3. Consultation on an initial draft set of regulatory proposals

Key stakeholder groups were again contacted by letter on 25-27 March 2009 and invited to participate in a consultation forum on 30 April 2009. The draft regulatory proposals were outlined in detail at this forum, and stakeholders provided feedback for the development of the proposed regulations. A forum was also held on 7 May 2009 for representatives from

20

Government agencies. Table 5 outlines the major industry and other groups and Government agencies consulted.

Table 5 – Stakeholders consulted on development of the proposed regulations and RIS

Industry and other groups Government agencies Dolphin swim tourism operators Department of Sustainability and Environment

(including the Arthur Rylah Institute) Whale and Dolphin watching tourism operators (air and boat based)

Department of Primary Industries

Seal Tourism Operators Parks Victoria Charter fishing tour operators Department of Treasury and Finance Marine mammal researchers Department of Justice Tourism Victoria Commonwealth government Tourism Alliance Environment agencies in other states

Seafood Industry of Victoria

Victorian Recreational Fishing Peak Body (VRFish)

Boating Industry Association of Victoria

Canoeing Victoria

Stakeholder participation in the consultation process to date has played a significant role in the development of the proposed regulations. Key elements of the proposed regulations that have emerged from stakeholder feedback include:

• Reducing the extent of the current Ticonderoga Bay Sanctuary Zone (TBSZ), to bring the boundary of the TBSZ into alignment with the Point Phillip Heads Marine National Park, while still extending to Police Point.

• Setting effective cumulative time limits for tour vessels in the caution zone of dolphins and whales, to allow tour vessels reasonable access while protecting animals from excessive human interaction.

• Refining the minimum approach distances for seals to better reflect the latest scientific research.

• Including exemptions from the minimum approach distances to seals for holders of commercial fishing licenses when tending to fishing gear.

• Clarifying which forms of seal tour should be exempt from the requirement to obtain a permit.

• Treating the seal breeding colony at Seal Rocks differently from the other breeding colonies – the risks posed by vessels at Seal Rocks are significantly less than at other breeding colonies, as seals at that site are well-accustomed to the presence of tour vessels.

Some concerns were raised about some of the draft regulatory proposals, such as:

• The effectiveness of restrictions on helicopters hovering over whales and dolphins was questioned by some stakeholders.

• Some researchers recommended larger minimum approach distances to Blue Whales, as they have been observed to be more sensitive to the presence of vessels and aircraft

21

than other species (this could be enabled by declaring the Bonney Upwelling a ‘limited permit area’).

• Some researchers recommended larger minimum approach distances to seals at protected seal breeding colonies.

• Some stakeholders proposed that all seal swimming tours should also require a permit (this requirement is included in regulatory Option D, assessed in detail in Part 4.0 of this RIS).

• The requirement for dolphin swim tour operators to retrieve mermaid lines immediately when a dolphin swim concludes was seen as unnecessary by some current tour operators.

Despite these concerns, at this stage there are no known significant objections to the proposed regulations. There has been no feedback from tour operators to suggest that these regulations would adversely affect their tourist operations in a major way.

There has been no external consultation as yet on the specific levels of the proposed fee structure.

Additional Consultation

In accordance with Section 11 of the Subordinate Legislation Act 1994, a notice of the RIS will be published in the Government Gazette and daily newspapers circulating throughout Victoria. The RIS will also be advertised on the DSE website, and hard copies will be sent to all stakeholders already consulted.

A consultation period of 28 days will be held upon the publication of the RIS. This is considered to be sufficient time for comment given the broad and detailed consultation conducted as part of the assessment for the proposed regulations and the preparation of this RIS. During this period stakeholders will be invited to make further submissions on the proposed changes to the regulations.

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2.0 The problem and the policy objective

2.1 The nature and extent of the problems

In accordance with Government guidelines,��F

42 a Regulatory Impact Statement (RIS) is required to identify and describe the problems to be addressed by the proposed regulations. In other words, why are the regulations being proposed?

The provisions of the Act indicate an intention by the Parliament that certain matters of detail in the overall legislative scheme would be prescribed by regulation rather than by the Act, in accordance with the guidelines issued under the Subordinate Legislation Act 1994. These guidelines state that—

Primary legislation is usually drafted in general rather than specific terms with a view to avoiding the need to make frequent changes. Matters of detail liable to frequent change should, where possible, be dealt with by subordinate legislation rather than primary legislation. However, the rule is that matters of policy, general principle and the like should be reserved to primary legislation.

The guidelines further state that the following matters are more appropriately dealt with by subordinate legislation than by primary legislation-

(a) matters relating to detailed implementation of policy, general principles and standards (rather than the policy, principle or standard itself);

(b) prescribing fees to be paid for various services;

(c) prescribing forms (if it is necessary that they be prescribed) for use in connection with legislation; and

(d) times within which certain steps should be taken.��F

43

The nature and extent of the problems are best identified by considering the likely consequences if there were no relevant regulations or effective alternatives in place once the existing regulations expire on 30 November 2009.

The problems addressed by the proposed regulations may be summarised as:

1. ��HRisks to the welfare and long term viability of marine mammals from human activities and human interactions throughout Victoria;

2. ��HRisks to public safety from interactions with large whales, dolphins and seals;

3. ��HThe need to maintain a sustainable tourism industry related to marine mammals;

4. ��HThe need to minimise use conflicts between marine mammal tourism and other human uses of marine waters, such as recreation, fishing and aquaculture.

5. The need to balance equity and efficiency in the recovery of costs from fees.

These problems are discussed in detail in Parts 2.1.1 to 2.1.5 below. Part 2.1.6 analyses the likely incidence of such problems occurring and their impacts.

The problems arise from the following factors-

42 Government of Victoria, 2007. 43 Government of Victoria, 2007. Appendix E Subordinate Legislation Act 1994 Guidelines.

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For all marine mammals:

• Regulations are needed to deal with the major threatening process, namely the proximity, frequency and duration of human interactions, whether from tourism or recreational activities.��F

44, ��F

45

• Disturbance can lead to interference with feeding, socialising or breeding; mortalities and injuries; and/or displacement from optimal habitat and in the case of seals trampling of pups.��F

46 Such disturbance may threaten the welfare of individual animals or threaten the long-term viability of some marine mammal populations.

• Prolonged close contact with marine mammals may habituate them to humans. Such animals may become dangerous or aggressive if they seek out humans, particularly for food.��F

47

Dolphins:

• The dolphin populations in Port Phillip Bay and the Gippsland Lakes are small, distinct and vulnerable.��F

48

• The importance of the Ticonderoga Bay Dolphin Sanctuary Zone as a feeding and resting area.

Whales:

• The conservation status of the Blue whale, Southern Right whale, and Humpback whale species.

• The importance of Logan’s Beach as a calving ground for the endangered Southern Right Whale.��F

49

Seals:

• During the late 18th and early 19th centuries seals were heavily hunted and populations were dramatically reduced. While these populations are gradually recovering, it is believed that numbers of Australian and NZ Fur Seals remain lower than they were prior to European settlement.

• Disturbance of seals at colonies or haul-out sites often causes animals to flee to the sea. This can involve the animals stampeding, with a significant risk of injury or death to seals in the colony, particularly pups.

• Disturbance during breeding season can cause mothers to lose their pups.

• Repeated disturbance of a seal breeding colony could reduce the amount of breeding occurring at the colony, and could potentially eliminate the breeding colony completely.��F

50

The difficulty is in providing reasonable access to marine mammals in a manner that does not affect their overall well-being. This is best achieved by giving whales, dolphins and seals the choice of whether to interact or not so that they are not forced to expend time and energy

44 Department of Sustainability and Environment, 2004. 45 Department of the Environment and Water Resources, 2007. 46 Kirkwood et al, 2003. 47 Kirkwood et al, 2003. 48 Hale, 2002. 49 Department of Natural Resources and Environment, 2000. 50 Kirkwood et al, 2003.

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avoiding contact. Generally, if they wish to avoid an encounter with humans, they will simply move away. This principle is central to the ANG and the National Seal Strategy.

Different areas of Victoria require different levels and strategies of management. Port Phillip Bay, where the whale watching/swim tour industry is established and relatively busy, requires a much more structured approach than the open coastline to ensure the protection of dolphins and whales. The critical Southern Right whale calving habitat of Logan’s Beach in Warrnambool calls for different considerations again.

The market failure associated with these problems is discussed in Part 2.3 of this RIS.

In the absence of regulation or effective alternatives dealing with these problems, there would be significant gaps and inadequacies in the implementation of the legislation protecting marine mammals. Some of these gaps, such as the setting of fees, can only be filled by regulation. Specifically, without the proposed regulations or effective alternatives, several significant problems would be likely to arise as discussed below.

2.1.1 Risks to the conservation and protection of marine mammals

As marine mammals are protected under a number of state and federal laws, the conservation and protection of marine mammals is part of the base case for this RIS (see Part 4.2 of this RIS), and therefore does not need to be discussed here as a problem.

What does need to be discussed is the need to minimise risks to the conservation and protection of marine mammals from human interactions, including:

• conservation of species and sub-species; and

• protection of populations and individuals from excessive disturbance by humans, unauthorised stranding or entanglement rescues, and so on.

Humans interact with marine mammals in a variety of ways, for example, through tourism or marine water-based recreational activities. Interactions with whales and dolphins are largely confined to water (except during strandings); whereas land and man-made water based structures are also parts of seal habitats. Each interaction has the potential to disturb or otherwise impact on individual animals or entire populations. Such interactions need to be monitored��F

51 and managed to minimise the risks of adverse impacts.

For example, available information suggests that whales can sense the approach of vessels at a considerable distance, and will change their behaviour with close approach.��F

52

Air-based tourism operations also have the potential to cause significant disturbance to some whale populations. Such disturbance can result in a range of negative impacts, including repeated disruption to breeding, feeding, socialising and resting behaviours and may impact on reproductive success, health, distribution or access to preferred habitat. ��F

53 Although there is only one operator specifically marketing tours as whale watching tours, there may be up to six operators currently running tours who may wish to conduct marine mammal tours. There is also the concern that the aerial-based whale watching industry, which is currently in its infancy, could grow rapidly in the next 10 years.

The risks to various categories of marine mammals from human interactions will now be discussed more specifically.

51 The monitoring of human interactions is assisted by monthly returns submitted by tour permit holders as one of their permit conditions (refer to Part 4.3.2 of this RIS). 52 Queensland Government, 1997. 53 Peter Gill, personal communication.

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Large whales

Larger whales are often seasonal visitors and travel great distances annually. They are difficult to track and relatively little is known of their behaviour and ecology. However, recent research has shown that:

• killer whales displayed behavioural changes when exposed to as many as three whale-watching vessels within a one-kilometre radius;

• the interval between feeding lunges of humpback whales significantly increased when whale watching vessels did not comply with local regulations;

• as the surfacing behaviour of feeding whales is difficult to predict, tour operators should initially watch whales from a distance of 300m before approaching closer to the 100m limit;

• to reduce the impact of boat proximity on feeding behaviour, no more than one vessel should approach within 300m.��F

54

A new air-based whale watching industry has developed recently which is currently operating in a largely unregulated environment. As outlined above, air-based operations have the potential to cause significant disturbance to some whale populations.

Logan’s Beach

Logan’s Beach is located near Warrnambool in south-west Victoria. Logan’s Beach has been recognised by Environment Australia as an area of special significance for Southern Right Whales - endangered Southern Right Whales come to Logan’s beach between June and October each year to calve. While the whales are close to shore, there is increased potential for boats in the vicinity to disturb or harass the whales at a time of year that is critical to their survival, when both mother and calf are particularly vulnerable. Thus, there is a need to exclude boats from this area during this critical period (1 June to 31 October each year).��F

55

Whale strandings and entanglements

Section 77A of the Wildlife Act 1975 provides for regulations to prescribe minimum approach distances for whales by people and vessels by regulation. A person must not approach a whale at a distance that is less than the prescribed minimum distance. In the case of emergency incidents such as strandings or entanglements there is a need to ensure that people are kept well clear of the incident, unless they are engaged in the rescue operation under strict protocols. DSE is responsible for co-ordinating appropriate actions in these events under the Victorian Cetacean Contingency Plan.

Strandings and entanglements occur regularly around Australia’s coastline, including in Victoria as indicated in Tables 6a and 6b below. Although these events are relatively infrequent in Victoria (especially compared to other states such as Tasmania and Western Australia), when they occur they can attract considerable media attention and public interest. These events thus need to be managed appropriately, under clear regulations and protocols, to ensure rescue operations are conducted in a humane and safe manner. For example, when strandings occur, there is concern that as many stranded animals as possible are returned to the sea healthy and the stranded animals are treated humanely��F

56.

54 Scarpaci et al, 2009. 55 Department of Natural Resources and Environment, 2000. 56Australian National Parks & Wildlife Service, National Contingency Plan for Cetacean Strandings, 1982.

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Although there is no data on the number of unauthorised or inappropriate rescues, there is strong evidence from other states that the success of rescue operations is greatly enhanced by the ability to keep the general public well away from the incident. This does not rule out the public from getting involved as volunteers, as long as they are appropriately trained and acting under the guidance of an incident controller.

Table 6a - Records of Victorian whale entanglements

Year Number of incidents Number of whales 2008 0 0 2007 2 2 2006 2 2 2005 4 4 2004 0 0 2003 1 1

Note: Almost all reported entanglements were entangled in rock lobster pots.

Table 6b - Records of Victorian whale strandings

Year Number of incidents Number of whales 2008 4 4 2007 7 7 2006 4 4 2005 0 0 2004 6 6 1989 5 5 1988 17 17 1983 1 87 1978 1 2 1975 1 1 1972 1 36 1965 1 20 1959 1 17 1957 1 200+ 1946 1 141

Note: Most reported strandings were beach-washed and dead when found. Approximately one incident per year involved a live stranded whale, which was usually a single isolated dolphin.

Dolphins

As discussed in Part 1.2.1 of this RIS, recent genetic data strongly suggest that the Victorian coastal bottlenose dolphin population is unique and that it is not exchanging genes with other characterised Australian or world-wide populations of dolphins. This means that the Victorian bottlenose dolphin population is at risk of extinction if not managed on a sustainable basis.

Research findings from Port Phillip Bay confirm that the proximity of tour vessels is the key disturbance factor posed by interaction with dolphins. During the tour season, these vessels can spend up to six hours per day interacting with dolphins. Responding to interactions with tour vessels and swimmers may interfere with the dolphins’ daily routine and may impact on their time and energy if interactions constantly interrupt feeding, resting or maternal behaviour.

The sustainability of the interactions between dolphins and humans in Port Phillip Bay was the subject of a 2001 study funded by the Department of Natural Resources and Environment (a predecessor of DSE) and conducted by the Dolphin Research Institute. The results of this study, contained within the Hale Report on Vessel Interactions with Dolphins, were published in September 2002. The study found that disturbance/avoidance behaviours such as ‘changes

27

in direction, diving and deep diving occurred at levels significantly higher when vessels were present’ and that ‘activities (such as foraging and feeding) were likely to be disrupted by vessels, providing an indirect impact on population viability, through for example reduced food intake, poorer condition, longer calving intervals and reduced calf survivorship.’��F

57

The Hale report found that commercial dolphin-tour vessels accounted for more than 90% of human interactions with dolphins and hence had a much more profound effect on the dolphins than incidental interactions with recreational boat users. Adverse impacts from vessel traffic, both lethal and non-lethal, could lead to a reduction in recruitment of females into the breeding population, which in turn would be likely to result in the population dying out in the foreseeable future.��F

58

More recent research has shown that:

• the likelihood that dolphins would continue foraging was significantly reduced; and foraging time was reduced by nearly 12% when tour boats were present;

• as a result of this decreased foraging, there could ultimately be population-level impacts on the dolphin population, even with only one licensed whale watching vessel.��F

59

The International Whaling Commission has agreed ‘that there is new compelling evidence that the fitness of individual Odontocetes (dolphins) repeatedly exposed to whale watching vessel traffic can be compromised and that this can lead to population level effects’.��F

60

Therefore it is important to regulate interactions to ensure sustainability of the species and populations in Port Phillip Bay, not only for biodiversity values but also for sustainability of the tourism industry which relies on these creatures. It is also important to provide a sanctuary area in the Bay, such as the existing Ticonderoga Bay Sanctuary Zone, so that dolphins can retreat from vessels.

In light of the research findings, DSE has developed and published policy proposals��F

61 following extensive consultation with the dolphin swim tour industry, the Dolphin Research Institute (DRI) and other researchers. These policy proposals are underpinned by two main principles—

1. Taking a precautionary approach to the protection of the dolphins in Port Phillip Bay; and

2. Ensuring that policies are workable for the dolphin tourism industry and enforceable from a regulatory perspective.

These principles are also applicable to dolphin tourism in other areas of the State, such as the Gippsland Lakes (refer to Part 1.2.1 of this RIS).

Given the significant potential that the dolphin swim tour industry has to impact on the dolphin population, the compliance of tour operators with measures designed to protect the dolphins is of paramount importance.

57 Hale Report pg 51. 58 Ibid. 59 Scarpaci et al, 2009. 60 International Whaling Commission, 2006. 61 Department of Sustainability and Environment (2004) Sustainable Dolphin Tourism Program – Recommendations & Policy Proposals, Department of Sustainability and Environment, Melbourne.

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Seals

Seals are by nature gregarious and curious creatures. This makes them particularly susceptible to humanisation. It is essential that seals are kept wild for a variety of reasons. Firstly, feeding of seals creates aggression where seals continually approach people for food. This can cause seals to bite, a problem which is exacerbated by the disease-carrying capacity of seals. All seals are carnivorous, feeding on fish, shellfish, squid and other marine creatures. Feeding of the wrong sorts of food can cause severe illness in seals, as well as limiting their capacity to hunt and feed for themselves in the wild. Seals in search of food have also been known chase, harass, and even jump onto fishing boats causing real damage.

Seals are at greatest risk from human interaction when on land, particularly at breeding colonies during the breeding season when they gather in very large numbers in close proximity to each other. In general, fur seals are very wary of humans and can stampede if disturbed. Studies have shown that seals can become alerted by the presence of vessels once they approach within 100m of a colony, with the probability of an adverse response increasing significantly when boats approach within 40m.��F

62 Studies also show that the response of seals varies broadly between sites. For example, individual seals at Seal Rocks, a colony heavily visited by boat operators, have shown less sensitivity to boat approaches compared to seals at Kanowna Island or Lady Julia Percy Island.��F

63

Since the 1970s, many fur seal populations have begun to recover from over-harvesting that took place during the late eighteenth to early twentieth centuries, and commercial fishing, aquaculture and tourism industries have developed significantly. It is therefore likely that interactions between humans and seals will continue to increase in these sectors.

The challenge facing governments and industry is how to minimise adverse interactions while protecting seals and maintaining sustainable and profitable businesses. To meet this challenge, the National Strategy to Address Interactions between Humans and Seals: Fisheries, Aquaculture and Tourism has been developed. As discussed in Part 1.6.2 above, this strategy identifies objectives and actions to minimise adverse impacts on Australian seal populations and on the fisheries, aquaculture and tourism sectors.

2.1.2 Risks to public safety

As well as risks to marine mammals, there are also risks to human safety from interactions with marine mammals. Whilst human safety is not less important than animal safety, in practice it is a less severe problem, requiring less intervention.

The risks to public safety from interactions with marine mammals fall into the following categories:

• collisions between large whales and small to medium sized vessels; • collisions between large whales and swimmers; • collisions between seals diving from rocks or other platforms and swimmers; • seals jumping from rocks or man-made water based structures such as

Chinaman’s Hat in Port Phillip Bay; • bites and scratches from dolphins and seals (see case examples below) ; • damage to vehicles from large seals; and • injuries from stranded or entangled whales.

62 Shaughnessy et al 2008; Julia Back & John Arnould (personal communication.). 63 Julia Back (personal communication.).

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The International Whaling Commission (IWC) global database contains 763 records of collision incidents between vessels and whales. Of these, 70% were confirmed collisions, 22% were probable collisions, 6% were possible collisions and the remainder were near misses or unclassified. Three human deaths and approximately 40 cases of serious injury have been reported, mainly from collisions between whales and smaller vessels such as ferries, sailing yachts, fishing vessels and one whale watching boat. Several million dollars worth of damage to vessels has been incurred. For example, a hydrofoil sustained an estimated US$1 million damage from a collision with a whale, where the hull was warped, both aft strut actuators were damaged, both steering arms broke, the gas turbine was flooded and the starboard engine was shifted forward off its mounts.��F

64

It is necessary to protect people in the vicinity of stranded whales from injury and also to ensure that they do not interfere with people involved in dealing with the stranding, or with the whales themselves. As the Minister said in the second reading speech on the recent amendment Bill:

The current minimum approach distance on the ground or water is 100 metres. This distance is inadequate in emergency response situations where rescue operations involve numerous rescue vessels. Strandings and entanglements tend to become public events and emotions can run high. Onlookers in recreational or commercial vessels can inadvertently hamper rescue efforts. The safety of onlookers, as well as media and pleasure-boat traffic, can also be an issue if a whale behaves unpredictably and moves quickly. Blue whales can power along at speeds in excess of 35 kilometres per hour.��F

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Seals can pose a number of threats to human safety when in close proximity to humans. In some circumstances individual seals can pose a risk, as illustrated by the examples of ‘Henry’ and ‘Cliff’ below.

TWO CASE EXAMPLES OF PROBLEMS WITH SEALS – ‘HENRY’ AND ‘CLIFF’

Between 2000 and 2006 ‘Henry’ the southern elephant seal became one of Victoria’s most famous if unlikely celebrities when he came ashore to moult and rest from feeding forays in the Southern Ocean. Henry appeared regularly on Port Phillip’s Bellarine Peninsula and became an attraction for hundreds of holidaymakers and curious locals.

The majority of the public treated ‘Henry’ respectfully. Others, unfortunately, put themselves and the animal in danger through their inappropriate behaviour and actions. ‘Henry’ at times became a problem. He blocked access to beaches by locals, hauled out on roads and parklands and the Department and volunteers had to erect barricades to protect him and the public, divert traffic and hire security personnel to keep onlookers at a safe distance.

Some in the community rallied to assist; other beach-users were unhappy that their access had been impeded. At the behest of local communities and a team of dedicated volunteers, the Department set about a range of education, health and safety, and animal welfare initiatives aimed at better informing the community regarding beached seals.

Another Southern Elephant Seal dubbed ‘Cliff’ (from his first appearance at Queenscliff) was less fortunate than ‘Henry’. ‘Cliff’ also frequented Port Phillip Bay’s beaches until he succumbed to apparent starvation in 2006 requiring veterinarians to intervene and destroy him humanely. He was viewed with great pleasure by thousands of Victorians. He was however poked, prodded, fed and disturbed by dozens of others, ignorant of how to respectfully treat a sub-Antarctic visitor. There is no single solution for dealing with the myriad issues that arise when wildlife and humans interact with conflict.

64 Waerebeek and Leaper, June 2008. 65 Minister for Community Development, 29 May 2008.

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In both of these cases, DSE needed to negotiate a broad range of conflicting community expectations to reach an outcome that was satisfactory to all. It had to balance social expectations with producing the best outcomes for the animals concerned and making effective use of DSE resources.

It is likely that local and sub-Antarctic seals will continue to haul out on popular beaches during the summer months. Adaptive methods need to be implemented to protect people and wildlife, including the continuation of major community education projects. For example, over recent years signs have been posted at every boat-ramp in Victoria about how to deal with seals and stressing the importance of not feeding them. These measures have been important in better informing the community about living in close proximity to wildlife such as seals.

2.1.3 Maintaining a sustainable tourism industry

Marine mammal tourism is important to regional economies in areas such as Warrnambool, southern Port Phillip Bay and the Gippsland Lakes.

As discussed in Appendix 2 to this RIS, the total amount of revenue estimated for the entire Victorian marine mammal tourism industry is estimated to be approximately $4.5m in 2009/10 dollars (see Table A2.5).��F

66 However given that the costs of running the tour vessels or aircraft are commercially confidential and unavailable, the amount of producer profit remains unknown.

Private consumer benefits of marine mammal tourism activities are estimated at between $151.8m and $206.5m over 10 years in 2009/10 dollars (see Table A2.6). However, due to the difficulties associated with the estimation of non-use benefits (that is existence value��F

67, option value��F

68 and bequest value��F

69), these have not been estimated (see discussion in Part A2.2.2 of Appendix 2 in this RIS for details and an explanation of these terms)

The long term viability of these industries is dependent upon the sustainable management of human interactions, in order to maintain populations of large whales, dolphins and seals, and to minimise risks to human safety. To put it simply, if human interactions drive the marine mammals away, or become unsafe, there will no longer be a viable marine mammal tourism industry. For example, without the proposed regulations or effective alternatives, it is unlikely in the longer term that a sustainable population of bottlenose dolphins would remain in Port Phillip Bay, or that Southern Right Whales would continue to visit Logan’s Beach.

In other words the abovementioned private consumer benefits of marine mammal tourism activities (between $151.8m and $206.5m over 10 years), plus the unquantifiable producer profit will in the longer term be almost entirely attributable to the proposed regulations or effective alternatives.

The adequate control of human interactions with marine mammals is therefore crucial to maintaining a sustainable marine mammal tourism industry, as well as producer profit, consumer benefits (that is, people being able to use their discretionary income to participate in tours) and the non-use benefits (existence value, option value and bequest value).

66 This is consistent with the total tourist expenditure of $4.24m in 2008 (refer to Part 1.3.1 of this RIS). 67 i.e. valuing the existence of marine mammals. 68 i.e. valuing the option to be able to view them. 69 i.e. valuing their ongoing existence so that descendants can view them.

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2.1.4 Minimising use conflicts

As discussed in Part 2.1.1, studies in Port Phillip Bay have shown that around 90% of interactions between dolphins and humans involve tour vessels. The majority of interactions between humans and seals also involve tour vessels, especially at the more popular seal colonies such as Seal Rocks and Cape Bridgewater.

However, as well as the interactions involving tourism operations, there is a significant level of interaction between recreational vessels and marine mammals, especially in confined waters such as Port Phillip Bay. Regulations or other effective alternatives are needed to manage these non-tourism related human interactions with marine mammals, especially those involving recreational vessels such as speed boats and jets skis, as well as commercial, aquacultural and recreational fishing boats.

With respect to whales and dolphins, the minimum distance provisions of section 77A of the Act are intended to apply to all vessels, not just tour vessels. The minimum distances for various categories need to be prescribed by regulations or effective alternatives. Such minimum distance requirements can help minimise potential use conflicts in the vicinity of whales and dolphins, by ensuring that humans do not make unwanted approaches into close proximity with animals. The animals themselves can make the choice of whether or not to approach humans – if whales or dolphins are happy and comfortable about coming closer than the minimum distance to boats or swimmers then that is totally allowable and not an offense under the minimum distance provisions of section 77A of the Act.

The main use conflict issues with respect to seals occur around the breeding colonies, especially during the breeding season at breeding sites where the seals gather in high numbers and densities, and tend to be more aggressive. Restricting approaches to seals on land at breeding colonies, especially in the breeding season, would be an effective way of minimising any potential conflict at these sites.��F

70 Issues can also arise when seals haul out at public locations such as boat ramps, as with the cases of ‘Henry’ and ‘Cliff’ discussed above. However in cases involving less conflict, such as a single fur seal hauled up at a boat ramp, minimum distance requirements should not prevent access unless there are safety concerns.

The number of charges laid under the current regulations demonstrates that there continues to be significant issues with respect people approaching whales. As discussed in Part 2.4 of this RIS, between 1998 and 2008 a total of 22 charges were laid under the Act and existing regulations for whale related offences.

2.1.5 Cost recovery – balancing equity and efficiency

If no new regulations were made to replace the existing regulations, no fees would be prescribed for services provided by DSE in assessing and issuing permits to applicants for marine mammal tour permits, and in monitoring and auditing tour activities. This would mean that there would be no cost recovery for these services, resulting in 100% subsidisation of users of these services by non-users, contrary to Treasury guidelines. As shown in Table 16��F

71, this would result in an estimated revenue shortfall of approximately $0.10m over 10 years in present value 2009/2010 dollars - to be funded from the public purse (tax-payers) or other sources.

70 Such restrictions should not apply to commercial fishing operations, as issues relating to seals and their impact on aquaculture and fisheries are the responsibility of Fisheries Victoria, Department of Primary Industries (DPI). DPI is currently addressing these issues in their implementation of the National Seal Strategy. 71 Under the proposed fees Option 2 in Part 4.5 of this RIS.

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2.1.6 Risk analysis

When considering the need for government intervention, both the risk of incidence of problems and the likely impacts if such problems do occur are relevant. For example, while the risk of human death or injury as a result of interactions with marine mammals is very low, the consequences of even one death or serious injury would be sufficiently high to justify intervention to minimise such risks. High public safety impacts generally justify stronger regulatory instruments, even where the incidence of such events may be low. Conversely, where there are low impacts, less interventionist forms of regulation, including self-regulation, may be considered.

Table 7 analyses both the likely incidence and impact of various problems occurring in the absence of regulations or other effective alternatives.��F

72

Table 7 – Problem risk analysis

Nature of risk Likely incidence Likely impact Human death Very low Very high Human injury Low High Loss of marine mammal population Low Very high Loss of marine mammal individual Medium Medium Loss of sustainable marine mammal tourism industry Low High

Damage to vessels Low Medium Marine use conflicts High Medium Loss of fee revenue Very high Low

2.2 Policy objectives of regulatory proposal

To address the problems identified in Part 2.1 of this RIS, the policy objectives of the regulatory proposal may be summarised as:

To minimise risks to: • the conservation and protection of marine mammal populations, and • human safety,

from human interactions with marine mammals in a way which— (a) provides for sustainable tourism and other commercial and recreational

activities; (b) is compatible with the economic, social and conservation objectives of the State;

and (c) achieves an appropriate balance between equity and economic efficiency.

The main test for assessing the proposed regulations against the practicable alternatives is their relative net benefit in achieving these policy objectives. While necessarily narrower in scope, these policy objectives are consistent with the purposes of the Act, namely, the protection and conservation of wildlife; and prohibiting and regulating the conduct of people engaged in wildlife-related activities.

72 Because the absence of regulation regarding marine mammals is hypothetical, this analysis is necessarily based upon subjective, yet informed predictions. The purpose is only to give a high-level illustration of the variations in both the incidence and impact of likely problems in the absence of regulations or effective alternatives.

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2.3 Need for intervention

Having identified the nature and extent of the problem and the suggested policy objectives, the ‘threshold’ or preliminary question to be addressed in an RIS is: Is there a sufficient case for further government intervention to assist in solving the problems?

The economic grounds for intervention under the proposed regulations include the existence of market failure and/or preference failure. There would be no need for such intervention if markets were capable of solving the identified problems. There is a clear economic case for government intervention in markets where some form of market failure is taking place (as defined in Part 2.3.1). Government can justify this because such intervention is in the public interest. Also in the public interest is the Governments desire to curb society’s consumption of merit bads��F

73 (as discussed in Part 2.3.2) thereby dealing with preference failure.��F

74

2.3.1 Market failure

Market failure occurs when markets fail to deliver an efficient allocation of resources (economic efficiency). The result is a loss of economic and social welfare (see glossary). The relevant sources of market failure addressed by the proposed legislative options are associated with those of public goods, externalities, and information failure (see glossary). In other words, market forces alone would not be expected to solve the problems identified in Part 2.1 of this RIS and a legislative or regulatory solution is necessary. Furthermore, for the purposes of this section, the discussion of minimising risks to conservation and protection of marine mammals is restricted to the impacts of human interactions with marine mammals.

Public goods

A public good is a good or service that is non-excludable and non-rival. The availability of a public good is not diminished by other users and it fails to be produced in private markets because there is no way for the producer to keep those who do not pay for the good or service from using it.

With regards to public goods, it is argued that markets of their own accord, fail to supply an appropriate level of risk management with regards to the conservation and protection of marine mammals. If markets provided such public goods, individuals in society would take comfort (i.e. benefit) in knowing that such risks would be minimised.

However, the biodiversity benefits of conservation and protection are both non-excludable and non-rival. Non-excludability means that it would be impossible to exclude individuals from the benefits of minimising risks to the conservation and protection of marine mammals. No-one would be willing to pay for such benefits because they could ‘free ride’ on others (i.e. waiting for others in society to pay for risk management). Non-rivalry means that the enjoyment of such benefits by one individual would not diminish the capacity of enjoyment by others in any way.

The lack of willingness to pay and the absence of ‘effective market demand’– would result in a lack of risk management with regards to conservation and marine mammal protection if left to market forces alone. Consequently, financially sustainable markets for minimising the aforementioned risks would fail to emerge. Without government intervention, resources would fail to be put to their best uses resulting in allocative inefficiency and the aforementioned benefits to society would fail to materialise.

73 See glossary for definition. 74 This terminology is used by Abelson, P. (2003), Public Economics: Principles and Practice, Southwood Press Sydney.

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Externalities

Externalities occur when a cost (negative externality) or benefit (positive externality) arising from an activity does not accrue to the firm or person carrying on the activity. With regards to marine mammal watching and swimming tours, the relevant negative consumption externalities include risks to conservation and protection of marine mammals, as well as, risks to sustainable tourism/commercial recreation activities.

Externalities associated with marine mammal tours have been widely recognised and include the negative impacts on the welfare of individual marine mammals, as well as populations of species and overall future sustainability on marine tour commercial activities. However, individuals who interact with marine mammals who only take into consideration their own private costs and benefits have no incentives to fully account for these externalities in making their consumption decisions.

In the absence of regulations, and as a result of such externalities, market forces would lead to a supply and consumption of marine mammal tour services which is allocatively inefficient, (i.e. where the additional benefits of such activities are outweighed by the additional costs, from society’s perspective). The absence of regulations or other effective alternatives for controlling human interactions with marine mammals would therefore fail to minimise risks to conservation and protection and threaten the viability of this commercial recreation activity in the future. Therefore, an unregulated market would result in too great a level of marine mammal tour activities and too many negative third party affects or negative externalities for marine mammals, sustainable commercial recreation and welfare loss.

Information failure

Information failure means that if people are ill informed and act inconsistently with their preferences, then economic inefficiency results.��F

75 It is assumed that ‘most’ people are not sufficiently informed about the ecology and conservation of wildlife or the dangers of rescuing, feeding or touching marine mammals. Markets do not generate information in an optimal way given that once produced, knowledge is non-rival in consumption, leading to free riding problems. Therefore, it is assumed that the market would fail to provide for adequate investment in risk information and that without government intervention, too few resources would be allocated to risk mitigation.

Whether market failure arises from externalities and/or public goods or information failure, the role of government intervention is to strike the socially optimal balance between marine mammal tour activities in the economy, on one hand, and the risks of human interactions with marine mammals with regards to the conservation and protection of the species and public safety, on the other.

2.3.2 Preference failure

Here it is argued that individuals may at times form incorrect preferences either through ignorance or through the inability to judge what is best for their own welfare. Individuals should therefore be encouraged to consume some goods even if they choose not to, such as education, (known as ‘merit goods’) and discouraged or prevented from consuming other goods even if they choose to, such as illicit drugs, (known as ‘merit bads’). A merit bad is defined as a commodity, the consumption of which it is argued should be discouraged or prevented, even though individuals choose to consume it.��F

76

75 Rivers and Ward, 2004. 76 The MIT Dictionary of Modern Economics, Fourth Edition.

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In this RIS, the merit ‘bad’ is represented by those individuals who may with good intentions attempt to ‘rescue’ seemingly abandoned seal pups (whose mothers may have simply gone hunting for food) or help stranded marine mammals outside DSE standards and protocols. Such preference failures lead to undesirable and negative consequences to the individual animal itself or to individual people involved in a rescue, as discussed in Part 2.1 of this RIS. This is not withstanding the fact that there could also be concurrent information failure regarding the dangers of rescuing marine mammals. Therefore, Government intervention to prevent unauthorised ‘rescues’ of stranded whales or seal pups can be seen, in part, as an attempt to deal with merit ‘bads’ and in part to deal with the potential for information failure.

2.4 Feasibility of intervention: compliance issues

The next preliminary question to be addressed is whether Government intervention is feasible, that is, are regulations likely to be effective?

The ultimate test of the effectiveness of the regulations is the effect on marine mammal populations. Where possible, such as in Port Phillip Bay, the dolphin population will continue to be monitored. The effects of the proposed regulations, if made, on dolphin behaviour will also be researched.

The proposed regulations have been discussed with the both existing tour permit holders and potential new permit holders (see Part 1.7 of this RIS), and it has been agreed that the proposals are workable.

Another measure of the effectiveness of the proposed regulations is the likely level of compliance.

The Wildlife Act 1975 is a ‘relevant law’ under the Conservation, Forests and Lands Act 1987. This means that officers of DSE and Parks Victoria can be appointed as authorised officers to enforce the Wildlife Act and regulations made under that Act, using the enforcement provisions of the Conservation, Forests and Lands Act 1987.

Where offences against the Act or the regulations are detected, authorised officers are empowered to issue warnings or infringement notices, or to issue proceedings by summons, depending upon the circumstances and evidence in each case.

Numerous compliance operations have been mounted by DSE field staff on Port Phillip Bay with hundreds of warnings and several dozen penalties issued for boating and other infringements.

In the past four years compliance operations have also been mounted specifically targeting vessel behaviour around dolphins including the compliance by dolphin tour operators with the regulations and permit conditions. These operations included covert and undercover activities on dolphin tour vessels, resulting in several warnings and a small number of prosecutions for breach of permit conditions.

In relation to members of the public who do not require permits, patrolling officers are primarily educating Bay users about the regulations. However anyone observed breaching the regulations could face warnings, on-the-spot fines or other more serious charges. Some infringement notices have been issued to jet-skiers for approaching dolphins closer than the prescribed minimum distance.

Between January 1998 and September 2008, 22 separate charges for whale offences under the Wildlife Act 1975 and the Wildlife (Whales) Regulations 1998 were laid (See Table 8).��F

77

77 Historic Enforcement Record System (HERS) database search result, Vic DSE/DPI Offence Management Unit.

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Twelve charges were laid under the existing regulations, including five charges for trespassing in the Logan’s Beach exclusion zone. An additional two charges were laid under the Act for approaching a whale closer than the minimum prescribed distance set in the regulations. Eight charges were also laid under the Act for interfering with a whale, such as by driving vessels erratically, including causing boat strikes against whales. Apart from the Logan’s Beach violations, all but one of the charges related to incidents occurring within the Port Phillip region.

Table 8 – Number of charges for whale related offences 1998-2008

Charges under the Wildlife (Whales) Regulations 1998 12

Cause or permit vessel to be in path of whale 2

Enter Logans Beach exclusion zone 5

Fail to move vessel at a constant speed within 300 m of a whale 3

Whales - fail to avoid sudden changes in direction 2 Charges under the Wildlife Act 1975 10

approach too close to a whale 2

interfere with a whale 8

GRAND TOTAL 22

Penalties for offences under the regulations ranged from warnings and undertakings by the defendant, to dollar fines ranging from $100 to $650, depending on the severity of the case. For the more serious charges under the Wildlife Act, including incidents where whales were struck and died as a result of interactions, fines of up to $2000 were set.��F

78

Observations by researchers indicate that compliance with the regulations increases significantly when DSE Officers are seen to be patrolling the waters. This dramatically improves the protection of and reduces the stress on the whales. Education and enforcement are integral to the process of maintaining sustainability of whale and dolphin populations in Port Phillip Bay and in Victoria in general.

The number of offences detected per year is small in comparison with the likely number of tours and other users of marine waters. There are two possible interpretations of this relatively small number of offences. One interpretation is that the number of offences against the regulations is so small that the regulations may be unnecessary. Against this interpretation is the fact that some of these offences could result in irreversible risks to public safety or to marine mammals (see Part 2.1 of this RIS).

The alternative interpretation is that the regulations are successful in deterring a higher number of offences. Even where warnings are issued, the existence of the regulations and the possibility of an infringement notice or court summons underpins the effectiveness of the warning. Warnings are generally useless unless there are legal consequences for failure to heed them.

By using these methods, it has only been necessary to prosecute a small number of offenders in the courts for breaches of the existing regulations. In this way, the regulations provide an effective and necessary deterrent against non-compliance. The current high rate of compliance outcomes (that is, close to 100% after advice and warnings) is expected to be continued under the proposed regulations.

78 The number of penalty units prescribed in legislation for an offence is the maximum penalty. The level of penalty applied is determined by the magistrate on a case by case basis.

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Recognising the need to make a potentially complex set of regulations accessible to the public, a colour brochure was produced in 2001 with an accompanying summary decal to attach to boat control panels.��F

79 A summary of the ‘whale watching regulations’ is also included in the boating safety handbook published by Marine Safety Victoria.��F

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As the proposed regulations primarily affect permitted tour operators who could lose their permits and thus their businesses, and because the operators are generally supportive of the proposed amendments to the regulations, the level of compliance is expected to be relatively high (provided the regulations are enforced). In the experience of DSE and Parks Victoria staff, tour operators generally accept the need for regulations to protect the whale populations on which their businesses depend.

DSE and Parks Victoria staff advise that very few complaints are received from the public about the existing regulations. In the experience of these staff, tourists and other users of marine waters generally accept the need for regulations to maintain the conservation values which attract them to Victorian waters, to minimise conflicts between users of various waters, and to protect life and property.

Given the high degree of public acceptance and compliance with the existing regulations, there is no reason to assume that the implementation of the proposed regulations is not feasible.

79 DSE web site <http://www.dse.vic.gov.au>. 80 Marine Safety Victoria (2002) Victorian Recreational Boating Safety Handbook State Government of Victoria, Melbourne <http://www.marinesafety.vic.gov.au/>.

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3.0 Identification of viable options The purpose of this part of the RIS is to identify practicable or feasible alternatives to the proposed regulations for comparative cost benefit assessment in Part 4.0 of the RIS. If alternatives are not practicable or feasible, then there is no point in considering them further in terms of costs and benefits.

The RIS is required to identify practicable alternatives to the proposed regulations and their relative costs and benefits compared to the proposed regulations (as quantitatively as possible, otherwise qualitatively). Conversely, the RIS is not required to identify alternatives which are not practicable, or which are beyond the scope of the existing Act. No alternatives are required to be identified, nor are costs and benefits required to be assessed where there is no appreciable cost burden imposed on any sector of the public.

The ‘base case’, that is, no regulations or other effective alternatives, while used for comparison purposes in Part 4.0 of this RIS, is not a practicable alternative because it would not contribute towards achievement of the policy objective (refer to Part 4.2 of this RIS).

Remaking the existing regulations without change is not a practicable alternative to the proposed regulations because the existing regulations do not protect seals or humans from seals, do not take into account recent Act amendments and they do not meet current drafting methods and standards. In any case, the fees need to be recalculated in accordance with the latest cost recovery guidelines.��F

81

Possible alternatives to the proposed regulations may be divided into two groups: the first group relating to matters other than fees such as conservation, public safety,��F

82 tourist industry sustainability and marine water use conflicts (regulatory options); and the second group relating to fees (fees options).

3.1 Possible options for conservation and safety regulations (other than for fees)

Self-regulation by private organisations via voluntary codes of practice is often mentioned as an alternative to regulation by government and statutory codes of practice. A voluntary code of practice for the Port Phillip Bay dolphin tour operators was attempted in 1995 but was found to be ineffective, due to low levels of compliance by tour operators.

Self-regulation can only be effective if—

• a high proportion of persons whose behaviour needs to be modified are members of the relevant private organisations; and

• there are sufficient sanctions available to private organisations to ensure compliance by their members.

Thus voluntary codes of practice may receive a high level of compliance in self-regulated professions such as the legal profession or industries such as the football industry, but tour operators and their customers are not self-regulated in this way.

For these reasons, self-regulation and voluntary codes of practice are not considered to be practicable alternatives to the proposed regulations Attempting to influence the behaviour of tour operators and their customers via a public education campaign (for example, via radio, television and newspapers) is unlikely to be effective for similar reasons.

81 Department of Treasury and Finance, 2007. 82 Refer to glossary.

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Some of the proposed regulations are more prescriptive than performance-based.��F

83 Performance-based regulations are not suitable in all circumstances and are most suitable where flexibility and choice in solutions is desirable, to encourage innovation and efficiency. However, performance-based regulations can sometimes be more difficult to comprehend and can also be more difficult to enforce for evidentiary reasons. By their nature, performance-based regulations tend to focus on the resulting outcome of the activity in question, rather than taking action necessary to avoid or prevent such outcomes. As discussed in Part 2.1 of this RIS, the failure to take preventative action could have very serious and irreversible consequences, such as the loss of life or major property damage, or the loss of populations of marine mammals. An appropriate balance therefore needs to be struck between preferences for performance-based regulations, and ease of comprehension and enforcement.

In this case, performance based regulations would need to be worded in terms of tour operators and recreationalists not causing stress to marine mammals. This would create major difficulties for compliance by tour operators and recreationalists, as there is no way they could know whether marine mammals are stressed or not. It would also create major evidentiary difficulties in enforcement because breaches of the regulations would be impossible to prove.

A regulatory option prescribing minimum distances only was considered, but rejected on the grounds that unlike the viable options, it would not address all of the problems identified in Part 2.1 of this RIS. In particular, it would not address the problems caused by numbers of tour operators simultaneously approaching whales and dolphins.

A practicable alternative could be to prohibit all whale swim tours, but not whale watching tours. This approach has been applied, for example, in Queensland, where no permits are issued for whale swim tours as ‘they pose behavioural and human safety problems associated with the close contact of wild dolphins and humans’.��F

84 This could be done by the Secretary revoking the Order made under section 83F of the Act which proclaims Port Phillip Bay to be a limited permit area for whale swim tours. This would mean that no further whale swim tour permits could be granted after the existing permits expire.

Another practicable alternative could be to require permits for all seal swim tours, rather than only those near recognised seal breeding colonies, as required under the proposed regulations. Such an alternative is likely to entail different costs and benefits to the proposed regulations, which are worth considering further.

Other possible options considered include different minimum distances between humans and marine mammals. However, unlike the proposed minimum distances, which are based on the relevant national guidelines and latest scientific research, alternative minimum distances would be arbitrary rather than evidence-based. (Also refer to insert on whale watching tours below, which outlines the restrictions imposed on the regulations by the definition of ‘whale watching tour’ in the Act).

Requiring less frequent returns from tour permit holders than monthly would not be a feasible option, because it would create an incentive to not keep adequate and up-to-date records, or even to falsify such records. It would not reduce compliance costs, because the data needs to be recorded during each tour anyway. It would also not be feasible to collect this data by other means, such as by undertaking research, as the detailed and reliable data required to monitor tour activities and compliance must be gathered across the entire season and can only be obtained from on-board the tour vessels.

83 Performance-based regulations specify the outcomes to be achieved, rather than the means of achieving them. 84 Queensland Department of Environment, 1997.

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3.2 Possible fees options

Although there is no alternative to setting fees by regulation, a practicable alternative could be to prescribe such fees based upon partial cost recovery, that is, at a level less than full cost recovery, if there are exceptional circumstances, in accordance with the relevant Treasury guidelines��F

85 (refer to Part 1.6.3 of this RIS).

One practical implementation issue considered, which would make cost recovery infeasible, is if the cost of fee collection were to exceed revenue collected. This would provide a justification for setting the fees at zero. However, the total cost of fee collection is estimated

85 Department of Treasury and Finance, 2007.

WHALE WATCHING TOURS – REQUIREMENTS OF THE WILDLIFE ACT 1975

The definition of a ‘whale watching tour’ in the Wildlife Act 1975 has important implications for the regulations and for the cost benefit analysis in this RIS.

A ‘whale watching tour’ is defined in the Act as ‘an activity conducted for profit that involves causing a vessel or aircraft to approach one or more whales at a distance, that is less than the prescribed minimum distance for the kind of aircraft or vessel, for the purpose of enabling persons on the vessel or aircraft to observe the whale or whales.’

This has important implications for: (i) setting prescribed minimum distances in accord with the Australian National Guidelines for Whale and Dolphin Watching 2005 (ANG); and (ii) estimating the number of permits that will be issued under the proposed regulations.

(i) Setting prescribed minimum distances in accord with the ANG

Given the definition of ‘whale watching tour’ licensed tour operators must be allowed to approach closer to whales than the prescribed minimum distance. Distances requirements for tour operators are instead set in the regulations on permit conditions. These distances for tour operators are most appropriately set in accord with the distances recommended in the ANG. This means that the proposed minimum prescribed distances for non-permit holders must be greater than the distances recommended in the ANG.

(ii) Estimating the number of permits issued under the proposed regulations

Four whale (dolphin) swim tour permits will be issued under the proposed regulations, set by the ‘limited permit area’ determination for Port Phillip Bay. However it is not possible to determine the number of whale watching and seal tour permits that could be issued under the proposed regulations. This is because:

• There are an unknown number of tour operators currently in operation that may choose to apply for a whale watching or seal tour permit, if they want to extend their tours to include these elements (for example, fishing charters; scenic flights).

• Current tour operators may choose not to apply for a permit. Tour permits are only required to approach whales or seal breeding colonies closer than the prescribed minimum distances. Thus they could elect to conduct tours in the vicinity of whales and seal breeding sites without a tour permit, as long as the tours do not approach closer than the standard minimum approach distances as set out in the regulations.

Given these issues, this RIS can only estimate the maximum number of permits that could be issued in each category, based on the number of operators currently conducting tours in the vicinity of whales or seal breeding colonies. Based on the current number of operators there could be up to six aerial operators, ten whale watching and ten seal operators affected by the proposed regulations (in addition to the four whale swim operators that remain in operation under the proposed regulations).

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to be only $449.40��F

86 in 2009/10, which is estimated to be approximately 1%��F

87 of annual cost of permit services. The cost of fee collection is therefore not a ground for setting the fees at zero.

Full cost recovery is defined in the relevant Treasury guidelines as including the cost of law enforcement, notwithstanding that law enforcement is a public good (refer to Part 2.4 of this RIS). The recovery of law enforcement costs from permit fees is not infeasible, but requires consideration of its appropriateness and equity as an alternative to the proposed fees (refer to Fees Option 1 below).

Apart from the question of law enforcement, the beneficiaries of permit services provided by DSE are, with one other exception, the permit holders themselves. The other exception is the conservation benefits of the public education provided by permit holders as a condition of their permit. As there is no other ‘public policy reason’, or ‘exceptional circumstance’ for setting application fees at less than full cost recovery, there are no other practical alternatives to the proposed regulations on these grounds.

However, there are alternative methods available under the Act for setting fees based on full cost recovery. An alternative fee structure (that is. prescribed maximum fees with the actual fees to be set below the maximum by the Secretary of the Department of Sustainability and Environment))��F

88 is one of the options listed below (refer to Fees Option 3).

The proposed regulations and practicable alternatives (collectively termed ‘options’) to be considered for cost benefit assessment are:

Options for regulations (excluding consideration of fees options)

• Regulatory Option A: The issuing and promotion of government guidelines based on the national guidelines (non-regulatory option);

• Regulatory Option B: The proposed regulations (excluding consideration of fees options) – this option includes allowing whale swim tours and requiring seal tour permits only near breeding colonies;

• Regulatory Option C: A variation of the proposed regulations prohibiting whale swim tours; and

• Regulatory Option D: A variation of the proposed regulations requiring permits for all seal swim tours.

Options for fees

• Fees Option 1: Prescribed actual fees based on full cost recovery including the costs of law enforcement;

• Fees Option 2: Prescribed actual fees based on partial cost recovery with a ‘public benefit discount’ and excluding the costs of law enforcement; and

• Fees Option 3: Prescribed maximum fees based on partial cost recovery with a ‘public benefit discount’ and excluding the costs of law enforcement, with the actual fees to be set below the maximum by the Secretary of the Department of Sustainability and Environment (DSE).

86 $449.40 = $14.98 per permit (see Table A4.4 of Appendix 4) x 30 permits. 87 $449.40 expressed as a percentage of 2009/10 full costs of permit services (including law enforcement costs) of $45,000.57 (See Table A4.11 of Appendix 4). 88 A current example of this approach can be found in Regulation 9 of the Zoological Parks and Gardens Regulations 2003 and Part 3 of the Alpine Resorts (Management) Interim Regulations 2009.

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4.0 Assessment of Costs and Benefits

4.1 Introduction

This section identifies the relative costs and benefits for the proposed regulations and each of the other options, as identified in Part 3.0 of this RIS, in comparison with the ‘base case’ (that is, no regulations). The ‘base case’ is used as a reference point for measuring the incremental costs and benefits of each of the options, including the proposed regulations. Each of the options is assessed in relation to how well the underlying policy objective identified in Part 2.2 of this RIS is likely to be achieved.

Where data exists, discounted��F

89 quantitative estimates of costs and benefits are provided over the 10-year life of the proposed regulations. A detailed discussion of the estimation of costs and benefits is provided in Appendices 1, 2 and 3 to the RIS. However, where cost and benefit data is not available, the assessment is made using qualitative criteria about the achievement of the policy objective.

The costs and benefits of each option for the conservation and safety regulations (Options A, B, C and D) (excluding fees) are assessed by using the following criteria (I + II)��F

90 to compare the effectiveness of each option in achieving the relevant part of the policy objective:

I- Risk minimisation: reduction of risks from human interactions with marine mammals to: conserve and protect marine mammals and individual animals; improve human safety; and ensure the sustainability of the marine mammal tourism industry;

II- Compliance costs: costs (excluding fees) for tour operators other commercial users and recreationalists.

After a preferred option for the conservation and safety regulations has been selected, the costs and benefits of the various fees options (Options 1, 2 and 3) are then assessed��F

91 using the following criteria (III + IV)��F

92 to compare the effectiveness of each fees option in achieving the policy objective:

III- Fee costs: compliance costs for tour operators in terms of fees for permits; and

IV- Fee equity and certainty: equity and certainty for tour operators and taxpayers.

4.2 The base case

4.2.1 Defining the base case

The term ‘base case’ means the situation that would continue to exist in the absence of the proposed regulations. For sun-setting regulations (as is the case here) the ‘base case’ is defined as having no relevant regulations or effective alternatives, and no prescribed fees.

Relevant existing legislation is part of the base case. In this situation, the following legislation may provide some protection to marine mammals from the impacts of interactions with humans:

89 A discount factor of 3.5% is used for present value calculations in this RIS, as recommended by the VCEC. 90 These Roman numerals are used to link the criteria to Tables 9 to 13 of this RIS. 91 This sequential approach obviates the need for multiple combinations of regulatory and fees options. 92 These Roman numerals are used to link the criteria to Table 19 and 20 of this RIS.

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• under section 76 of the Act, it is an offence to kill, injure, take, or interfere with a whale, including a dolphin (penalty 1000 penalty units).

• under section 58 of the Act, it is an offence to wilfully molest, injure, disturb, chase or herd protected wildlife��F

93 or separate protected wildlife from its young or causes it to be so separated.

• under section 9 of the Prevention of Cruelty to Animals Act 1986 it is an offence, amongst other things, to:

o wound, mutilate, torture, override, overdrive, overwork, abuse, beat, worry, torment or terrify an animal; or

o do or omit to do an act with the result that unreasonable pain or suffering is caused, or is likely to be caused, to an animal.

• Southern Right whales and Blue whales are listed as endangered under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), and listed as threatened under the Victorian Flora and Fauna Guarantee Act 1988 (FFG Act). Humpback whales are listed as vulnerable under the EPBC Act and listed as threatened under the FFG Act.

• Regulation 157 of the Commonwealth Civil Aviation Regulations 1988 sets a minimum height of 500 feet for aircraft flying over non-populous areas, including water.

4.2.2 Consequences of the base case

The likely consequences of the ‘base case’ are that the nature and extent of the problems identified in Part 2.1 of the RIS would not be addressed. Under the ‘base case’ there would be no prescribed minimum approach distances; no prescribed permit conditions; minimal regulation of interactions between humans and whales/seals (including aerial interactions); and minimal protection of whales in important habitats such as Logan’s Beach and Ticonderoga Bay. Existing legislation as described in Part 4.2.1 would fail to address the problems arising from human interaction with marine mammals, specifically:

• risks to the conservation and protection of marine mammals. For example, the listing of marine mammals as endangered or vulnerable would not guarantee improved conservation and protection outcomes in the case of human interactions with marine mammals;

• risks to individual marine mammals��F

94. There would be no way to ‘fine-tune’ the mitigation of risks to the welfare of individual marine mammals arising specifically from human interactions;

• risks to human safety. Under the ‘base case’ there would be no legislation to minimise risks to human safety as a consequence of human interactions with marine mammals; and

• risks to the sustainability of the marine mammal tourism industry. Some operators would attempt to approach marine mammals too closely or organise swim tours that are too long or in sensitive habitats – in order to secure short term profits. Such human interactions would occur at the expense of the sustainability of whale and seal tour industries.

93 ‘Protected wildlife’ includes marine mammals. 94 Individual marine mammals would continue to be protected from cruelty or harassment under the Prevention of Cruelty to Animals Act 1986 and the Wildlife Act 1975.

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4.3 Assessment of Options A, B, C and D (excluding fees)

The costs and benefits of the various non-regulatory/regulatory options (A, B, C and D) (not including fees) are assessed by using the following criteria (I + II)��F

95 to compare the effectiveness of each option in achieving the relevant part of the policy objective:

I - Risk minimisation: reduction of risks from human interactions with marine mammals to: conservation and protection of marine mammals; individual animal protection; human safety; and the sustainability of the marine mammal tourism industry; and

II - Compliance costs: costs (excluding fees) for tour operators other commercial users and recreationalists.

The following assessment of the costs and benefits of the proposed regulations and the other options is conducted by discussing each option in terms of its expected incidence and distribution of costs��F

96 and benefits, relative to the ‘base case’. Some of the discussion of costs and benefits is by comparison with the preceding or forthcoming discussion of options to avoid unnecessary repetition of text. The overall comparison of options, including the selection of the preferred option, is undertaken by using a weighted decision criteria analysis in Part 4.4 of the RIS.

4.3.1 Option A: (non-regulatory option)

Option A would entail the issuing and promotion of government guidelines by DSE based on the national guidelines in order to achieve the policy objective as discussed in Part 2.2 of this RIS – once every 5 years. These guidelines would be based on:

• the Australian National Guidelines for Whale and Dolphin Watching; and

• the management of seals and seal tourism (National Seal Strategy Group), National Strategy to Address Interactions between Humans and Seals: Fisheries, Aquaculture and Tourism.

Quantifiable incremental net benefits of Option A (I Risk minimisation)

Under Option A there would be some protection of potential tourist benefits from whale and seal tours, worth up to between $151.8m and $206.5m��F

97 over 10 years in 2009/10 dollars (summarised in Table 9a). The ‘actual’ level of benefits protected will depend exclusively on the level��F

98 of adherence to the guidelines. However, because voluntary guidelines do not impose compulsory requirements with respect to human interactions with marine mammals, the extent of protection would be limited.

Unquantifiable incremental net benefits of Option A (I Risk minimisation)

The Australian National guidelines for Whale and Dolphin Watching are aimed at minimising the impacts of whale and dolphin watching on individual cetaceans and on cetacean population levels more broadly; and ensuring that people know how to act appropriately when

95 These Roman numerals are used to link the criteria to Tables 9 to 13 of this RIS. 96 The basis of cost estimates are given in Appendices to the RIS. The cost estimates clearly distinguish costs imposed by the proposed regulations from costs imposed by the Act or as a result of business overheads. 97 See Part A2.4.1 of Appendix 2 of this RIS for source of estimates. 98 Previous attempts by DSE to promote guidelines showed low adherence. However data as to the levels of adherence remains unavailable.

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watching whales and dolphins��F

99. The National Strategy to Address Interactions between Humans and Seals: Fisheries, Aquaculture and Tourism is aimed at making commercial fishing, aquaculture and tourism sectors aware of the legislation protecting seals in Australian waters, and guiding industry efforts to reduce adverse impacts on seals, while maintaining the economic and ecological sustainability of those industries. However, this Option would fall short of effectively addressing the impact of human interaction with marine mammals on the sustainability of the whale watching/swim and seal watching industries themselves, and particularly human safety. That is to say, the proposed guidelines would be focused on mitigating risks to conservation and protection of marine mammals resulting from human interactions.

Furthermore, given the voluntary nature of government guidelines and ‘ownership’ of such guidelines by some tour operators (strictly through consultation and not through the development of their own codes), there would be less effective additional promotion of the policy objective as discussed in Part 2.2 of this RIS – as compared to Option B (the proposed regulatory option). A study in 2008 showed that voluntary guidelines��F

100 in the Stellwagen Bank National Marine Sanctuary��F

101 – a high-profile marine sanctuary area – still resulted in 78% non-adherence on average, ranging from 74% to 88% between companies��F

102. This was despite the considerable time and effort invested by government agencies and apparent support by the industry of voluntary guidelines��F

103. Importantly, while this estimate provides an illustration of rate of adherence with respect to guidelines in the Stellwagen marine sanctuary area (22% on average), the transfer of such a rate to Victoria is inappropriate due to dissimilarities in marine mammal environments.

Consequently, it is expected that there would be some mitigation of risks to: conservation and protection of marine mammals; individual animal protection; and the sustainability of the marine mammal tourism industry – as compared to the ‘base case’ (Risk minimisation). However, the incremental benefits according to risk minimisation would be lower than those under Option B.

Quantifiable incremental net cost of Option A (II Compliance costs) Option A would simply involve a one-off additional cost to DSE reformatting the national guidelines into a Victorian Government document which would be funded from consolidated revenue (that is, the taxpaying community).

It is estimated that there would be 50 hours of time involved in reformatting the national guidelines at a charge out rate of $44.24��F

104 per hour (clerical level) bringing the initial 5-year development cost of Option A to $2,212 in 2009/10 dollars. The development cost for the following 5 years would be equal to 50 hours of time at a charge out rate of $52.04��F

105 bringing the cost to $2602.02 in 2014/15 or $2,190.83 in 2009/10 dollars. Additional publishing, printing and distribution costs are estimated to be $8000 over 10 years. This would bring the total 10-year cost of the guidelines to $12,403 in 2009/10 dollars.

Option A would result in a minor increase in cost of compliance on taxpayers as compared to the ‘base case’; however, there are no additional unquantifiable costs, as shown in Table 9a. The comparative advantages and disadvantages of Option A are summarised in Table 9b.

99 Department of the Environment and Heritage, May 2006. 100 These guidelines were on speed limits allowable in the sanctuary. 101 Located in New England (USA). 102 Wiley et al (2008) cited in Scarpaci et al (2009). 103 Ibid, (2009). 104 See Table A4.3 of Appendix 4 for source of estimate. 105 Equal to $44.24 and incremented for 5 years at a rate of 3.25% per annum.

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Table 9a – Summary of 10-year costs and benefits under Option A��F

106

Nature of costs and benefits Interests affected

Quantifiable benefit (I Risk minimisation)

Limited minimisation of risk to potential tourist benefits arising from human interactions with marine mammals – worth up to between $151.8m and $206.5m.

Consumers of whale and seal watching/swim activities.

Unquantifiable benefit (I Risk minimisation)

Limited minimisation of risk to conservation and protection of marine mammals and sustainability of marine mammal tourism arising from human interactions with marine mammals – but not risks to human safety.

Species/populations/ individual marine mammals and tour operators

Quantifiable cost (II Compliance costs)

Cost of developing guidelines of $12.4k (including publishing, printing and distribution costs).

Taxpayers.

Unquantifiable cost (II Compliance costs) N/A N/A

Table 9b: Comparative advantages and disadvantages of Option A Advantages Disadvantages • Low funding required to develop guidelines

(approx $12.4K). • Regulations not required.

• Limited protection of marine mammals and human safety.

• Limited protection of industry from unsustainable practices.

• Guidelines not enforceable.

4.3.2 Option B: The proposed regulations (not including fees)

Option B consists of the proposed regulations as set out in Appendix 8 of this RIS, which relate to: prescribed minimum approach distances; prescribed permit conditions; regulation of interactions between humans and whales/seals (including aerial interactions); protection of whales in important habitats; and protection of native seals in breeding colonies. The following discusses the costs and benefits of Option B.

Quantifiable incremental net benefits of Option B (I Risk minimisation)

Option B would result in preserving or mitigating the risks to the long-term benefits (surplus) to tourists (consumers) participating in marine mammal tour activities. The estimated total 10-year value of such gains in 2009/10 present value dollars would be up to between $151.8m to $206.5m (see Part A2.4.1 of Appendix 2 of this RIS for source of estimate). This total would be made of:

• up to between $100.5m and $148.8m��F

107 of benefit for consumers of whale watching/swim activities; and


108 of benefit for consumers of seal watching/swim activities.

106 All costs and benefits are reported over 10 years and in 2009/10 dollars. 107 See Table A2.3 of Appendix 2 in this RIS for source of estimates. 108 See Table A2.4 of Appendix 2 in this RIS for source of estimates.

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Unquantifiable incremental net benefits of Option B (I Risk minimisation)

As compared to the ‘base case’, Option B would result in unquantifiable incremental benefits. Option B would lead to a reduction of risks from human interactions with marine mammals that would ensure:

− conservation and protection of marine mammals; − individual animal protection; human safety; and − the sustainability of the marine mammal tourism industry (Risk minimisation).

These general categories of incremental benefit as promoted by the proposed regulations are summarised in the following sections��F

109.

• The proposed regulations would contribute to risk mitigation in terms of conservation and protection of marine mammals and provide incremental benefits to the extent of: a) regulating human interactions with marine mammals; and b) requiring tour operators to provide an educational component in tour services. Risks to marine mammal protection and conservation due to human interactions with marine mammals, generally, would be dealt with specifically by proposed regulations 8(1) to 19(11) (inclusive). Human interactions with marine mammals and risks to the conservation and protection of marine mammals at the Logan’s Beach Exclusion Zone would be dealt with specifically under proposed regulation 14(1). Interactions at Ticonderoga Bay Sanctuary Zone would be dealt with under proposed regulation 6(c) and (d). The benefits remain unquantifiable however due to concerns relating to the estimation techniques used for quantification��F

110. Furthermore, ensuring a clear educational message to promote an understanding of the ecology and conservation of marine wildlife would be dealt with specifically by proposed regulations 15(2), 16(2) and 19(2). This would involve more than a passive distribution of education material to tourists since such distribution is not as effective in mitigating negative human impacts on marine mammals.��F

111

Finally, compulsory monthly returns under proposed regulations 16(15) for whale watching (tour vessel) permit holders; 17(20) for whale swim permit holders; and 15(5) for whale watching (aerial) permit holders would help to provide proactive management of risks to conservation and protection of marine mammals due to human interactions by:

o monitoring the activity of permit holders, particularly regarding compliance with limits on the number of approaches and cumulative time limits;

o providing data on the extent of interaction between permit holders and marine mammals. This can be used by researchers assessing the broader impacts of tourism on marine mammal populations��F

112; and o providing feedback to tour operators regarding the overall level of compliance and

extent of interactions between permit holders and marine mammals.

• The proposed regulations would seek to protect the welfare of individual animals to the extent of human interactions with marine mammals only. The proposed regulations

109 For a detailed discussion of benefits of the proposed regulations and measurement issues see Appendix 2 of this RIS. 110 For a more detailed discussion of the concerns of measuring benefit, see Part A2.2.2 of Appendix 2 of this RIS. 111 Camargo & Belline (2007) cited in Scarpaci et al (2009). 112 Summaries of the monthly return data are available to researchers on request. Since the existing regulations have been in place, such summaries have contributed to research on the impact of tourism on marine mammals. E.g. Scarpaci et. al. (2000); Scarpaci and Corkeron (2003); Scarpaci (forthcoming); Scarpaci et. al. (forthcoming).

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provide a more specific regulatory framework to protect marine mammals and, in this way, ‘fine-tune’ the provisions of the Wildlife Act 1975 and Prevention of Cruelty to Animals Act 1986. In other words, the regulations provide guidance on acceptable human interactions with individual marine mammals. The proposed regulations aimed at providing additional risk mitigation to marine mammal welfare concerns include:

o 6(c) and (d) relating to prescribed minimum distances for whales inside the Ticonderoga Bay Sanctuary Zone to provide an effective safe refuge for whales while still allowing access to tour operators and a ban under proposed regulation 17(4) for whales swim tours;

o 8(2) relating to ceasing the operation of aircraft in the vicinity of marine mammals if a marine mammal shows reasonably perceivable signs of disturbance;

o 9(2) relating to the requirement to manoeuvre a vessel to outside the caution zone��F

113 if a marine mammal shows any reasonably perceivable sign of disturbance.

o 12(1)(a) and (b) relating to restrictions on noise in the vicinity of marine mammals; o 13(1) relating to restrictions on dogs in the vicinity of marine mammals; o 14(1) relating to restricting the entry of vessels in the Logan’s Beach Exclusion Zone

at any time from 1 June to 31 October; and o 19(10) relating to restrictions on seal tour vessels near seal breeding colonies as part

of the condition of seal tour permits where seals show reasonably perceivable signs of disturbance.

• By regulating human interaction with marine mammals, the proposed regulations would provide unquantifiable incremental benefits in relation to human safety, in terms of minimising the risks to life and property, as discussed in Part 2.1.2 of this RIS. With regards to whales, minimum distance requirements under proposed regulations 9(1)(a)(b)(c); 9(2)(a)(b); 9(3); 9(4) and 9(5) would help to minimise the risk of collision of whales with whale watching/swimming tour boats and other vessels such as recreational fishing boats (in terms of both extent and likelihood of such a consequence). Incremental benefits remain unquantifiable as the likelihood of death and injury for the life of the regulations remains unknown and estimates for the value of a human life remain at best problematic and controversial��F

114. For a detailed discussion of human safety consequences relating to boat collisions with whales see Part 2.1.2 of this RIS. Other proposed regulations which would help minimise risk to human safety from collisions between large whales and swimmers or injuries from stranded or entangled whales include proposed regulations 6(1)(a)(c)(d)(e)(f)(g) (minimum distance requirements); 10(1), 10(2) and 10(3) (restriction on feeding); and 11(1) and 11(2)(restriction on touching).

Secondly, minimum seal distance requirements under proposed regulations 7(1) to 7(6) would help to minimise the risks of seal attacks on humans (biting behaviour and diving on swimmers). The nature of seals makes them particularly susceptible to humanisation. The restriction on feeding seals under proposed regulations 10(1), 10(2) and 10(3) would help to minimise aggression in seals continually approaching people for food. This can cause seals to bite, a problem exacerbated by the disease-carrying capacity of seals. Furthermore, this could lead to other issues related consequences such as damage to

113 The caution zone is defined in the proposed regulations as a radius of 150 metres for dolphins; 300 metres for whales and 50 metres for seals. 114 Human life is typically valued on the basis of expected future earnings with a total disregard of the value of a life to friends, family and the community; not to mention the extremely strong preference of the individual not to die.

49

property (such as vehicles). For a detailed discussion of the human safety consequences of human interactions with seals see Part 2.1.2 of this RIS.

Proposed regulation 6(1) (minimum distance requirements) would minimise risks of bites from dolphins, as would proposed regulations 10(1), 10(2) and 10(3) (restriction on feeding);and 11(1) and 11(2) (restriction on touching). However, given that the extent and probability of such incidents occurring remains unknown, these benefits remain unquantifiable.

• Negative third party effects of whale watching (tour vessel) tour activities such as herding disturbing and harassing whales (including dolphins) or separating mothers from calves has the potential to result in particular marine mammal species disappearing from Victoria’s coastland waters permanently or significantly reducing the populations. This would result in losses for both tourists and tour operators alike. The proposed regulations that would provide additional benefits by specifically minimising risks to the sustainability of the marine mammal tourism industry include: o 6(1) relating to minimum distances for whale; o 8(1) and 8(3) relating to restrictions on operating aircraft in the vicinity of marine

mammals; o 9(1) relating to restrictions for persons operating vessels in the vicinity of marine

mammals and requirements for persons operating vessels under proposed regulation 9(2);

o 14(1) relating to restricting the entry of vessels in the Logan’s Beach Exclusion Zone at any time from 1 June to 31 October. This regulation is significant in that it would minimise the risk to land based whale watching tourism industry at Logan’s Beach;

o 15(1) to 15(10) relating to conditions for aircraft based whale watching tour permits. o 16(1) to 16(19) relating to conditions of whale watching tour permits and whale swim

permits with additional conditions for whale swim tour permits under proposed regulations 17(1) to 17(21);

o 19(1) to 19(11) relating to conditions of seal tour permits.

• Apart from the incremental benefit of the proposed regulations in terms of protecting consumer (tourist) gains (as discussed in the quantifiable benefits section) the regulations would help to protect an estimated $4.5m��F

115 worth of annual revenues for the marine mammal tour industry. However, the cost of tour operations remains unknown��F

116. Therefore, the benefits in terms of the magnitude of tour operator surpluses being protected, remains unquantifiable.

A summary of unquantifiable incremental benefits are illustrated in Table A2.6 of Appendix 2 of this RIS.

Quantifiable incremental net cost of Option B (II Compliance costs)

Under Option B, the 10-year��F

117 incremental net quantifiable cost of regulations (excluding fees), namely the cost of providing returns under proposed regulations 16(15) for whale watching (tour vessel) permit holders; 17(20) for whale swim permit holders; and 15(5) for

115 See Table A2.5 of Appendix 2 of this RIS for source of estimate. 116 This data is of a commercially sensitive nature and therefore not obtainable. 117 It should be noted that the life of regulations under Option B is limited to 10 years, by operation of section 5(1) of the Subordinate Legislation Act 1994.

50

whale watching (aerial) permit holders, would be approximately $0.11m, $0.07m and $0.07m��F

118, respectively, in 2009/10��F

119 present value dollars (see Table 10a for summary).

Furthermore, under proposed regulations 15(3), 16(3) and 19(3) for whale watching (aerial) whale watching (tour vessel) and swimming and seal watching, respectively, the conditions of the permit would need to be made clearly visible and posted on signs giving a 10-year (printing/laminating) cost equal to $592.82��F

120 in 2009/10 present value dollars. This cost would be imposed either or the permit holders themselves or the general taxpaying community if DSE were to supply the signs.

Option B would result in an increase in the cost of compliance on tour permit holders (excluding fees) as compared to the ‘base case’ which is greater than the increase in compliance costs on taxpayers under Option A.

Given that the preferred level of fees for marine mammal permits are the proposed fee regulations (see Part 4.6 of this RIS for discussion), the 10-year cost of marine mammal tour permit fees in 2009/10 dollars under Option B would be equal approximately $0.1m (see Part A5.4.1 of Appendix 5 of this RIS for source of estimate). This incremental cost represents 4 issues of an estimated 120 3-year permits.

Unquantifiable incremental net cost of Option B (II Compliance costs)

Incremental costs of Option B under the proposed regulations would be mitigated by certain exemptions of persons or organisations from such proposed regulations. That is to say the net incremental cost of proposed regulations would equal the cost of the proposed regulation less the impact of the proposed exemptions. Under Option B, a range of incremental net unquantifiable costs including: inconvenience costs��F

121; emotional costs��F

122; and foregone revenue, would be incurred in relation to the ‘base case’ – as shown in Table A1.3 of Appendix 1 in this RIS.

The proposed regulations will impose some restrictions on recreational fishers - they will have to avoid seals at seal colonies, particularly in the breeding season. However this should involve only a minor inconvenience to recreational fishers, as: (i) the areas involved would be very small; (ii) such locations around seal breeding colonies are generally not popular with recreational fishers, who tend to avoid seals, and (iii) there would be numerous alternative fishing locations nearby. Also, ensuring that fishing is kept away from seal breeding colonies should reduce potential conflict between seals and fishers. Also note that this is very different to the sort of restrictions that a marine national park would impose, as the minimum distances only apply when seals are present. Where seals are not present there would be no restriction on fishing, even in areas that seals could potentially breed.

The reasons as to why the costs remain unquantifiable and a more detailed discussion of costs are given in Part A1.2 of Appendix 1 of this RIS.

118 See Part A1.1.1 of Appendix 1 of this RIS for source of estimates. 119 Discounted using a real discount rate of 3.5%. 120 See Appendix A1.1.2 for source of estimate. 121 Inspections for compliance with permit conditions would be a) covert to which no additional cost is imposed on operators and b) overt and random and would include log book inspections and the checking of signage. Overt inspections may occur up to two or three times per year for each permit holder. However this would involve less than 5 minutes of the operator’s time. The cost of compliance is therefore treated as negligible. 122 Cost to potential whale rescuers in not being allowed to approach stranded or entangled whales without permission from an authorised officer or vet.

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Summary of costs and benefits under Option B Table 10a - Summary of 10–year costs and benefits under Option B (the proposed regulations)��F

123

Nature of costs and benefits Interests affected Minimisation of risk to potential tourist benefits arising from human interactions with marine mammals – worth up to between $100.5m and $148.8m.

Consumers of whale watching/swim activities.

Quantifiable benefit (I Risk minimisation) Minimisation of risk to potential tourist benefits arising

from human interactions with marine mammals – worth up to up to between $51.3m and $57.7m.

Consumers of seal watching/swim activities.

Unquantifiable benefit (I Risk minimisation)

Minimisation of risk to conservation and protection of marine mammals; human safety; and long term profits and sustainability of marine mammal tourism arising from human interactions with marine mammals.

Species/populations/individual marine mammals; individual people; tour operators

Cost of providing returns of approx $0.11m. Whale watching (tour vessel) permit holders.

Cost of providing returns of approx $0.07m. Whale swim tour permit holders.

Cost of providing returns of approx $0.07m. Whale watching (aerial) tour permit holders

Cost of printing and laminating signs showing permit conditions of $592.82

Marine mammal tour permit holders or the general taxpaying community


Cost of marine mammal tour permit fees of approx $0.1m Marine mammal tour permit holders

Minor inconvenience costs. Recreational marine users, tourists and tour operators.

Minor emotional costs. Whale rescuers. Unquantifiable cost��F

124 (II Compliance costs)

Potentially major foregone revenues in the short-term due to permit conditions.��F

125 Tour operators.

Table 10b: Comparative advantages and disadvantages of Option B (the proposed regulations)

Advantages Disadvantages • Risk to marine mammal populations minimised • Risks to human safety minimised • Sustainable tourism industry maintained • Welfare of animals protected • Long-term viability of marine mammal

populations protected • Human interactions can still occur • Swim tours protected

• Industry may forego some major short term revenue due to permit conditions

• Permit holders required to complete returns • Minor inconvenience to some tourists and

recreationalists • Possible emotional costs to some whale

rescuers • Permit holder required to pay fees

123 All costs and benefits are reported over 10 years and in 2009/10 dollars. 124 See Table A1.3 of Appendix 1 of this RIS for a more detailed description. 125 Mainly due to the inability to closely approach marine mammals within specified distances.

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4.3.3 Option C: (Variation of proposed regulations prohibiting whale swim tours)

Option C would involve a variation of the proposed regulations (excluding fees) whereby whale swim tours are prohibited. The following discusses the costs and benefits of Option C.

Quantifiable incremental net benefits of Option C (I Risk minimisation)

Although Option C eliminates tourist benefits from whale swim activities, it would result in further mitigating the risks to the long-term potential benefits for tourists participating in the remaining whale watching activities. These benefits are estimated to be worth approximately up to between $91.5m��F

126 and $135.6m��F

127 over 10 years in 2009/10 dollars (see Table 11a). In doing so Option C would be likely to further enhance the sustainability of this remaining whale watching industry. However, the extent to which Option C would deliver ‘additional’ long-term whale watching tourist benefits in relation to the ‘base case’ over 10 years, as compared to Option B, is unknown.

Additional tourist benefits from seal watching and swim activities would be equivalent to those under Option B and up to between $51.3m and $57.7m��F

128 over 10 years in 2008/09 dollars. Consequently, the estimated total 10-year value of tourist benefits in 2009/10 present value dollars would be up to between approximately $142.8m to $193.3m

Unquantifiable incremental net benefit of Option C (I Risk minimisation)

Option C would provide the same unquantifiable incremental benefits as discussed under Option B however, there would be a further mitigation of risks from human interactions with marine mammals (namely whale swims) on the conservation and protection of marine mammals��F

129. A reduced impact on dolphins from tourism (human interaction) under Option C would further reduce the risk of extinction of the Port Phillip Bay dolphin population and of threats to the welfare of individual marine mammals arising from whale swim activities.

Quantifiable incremental net cost of Option C (II Compliance costs)

Under Option C, the 10-year��F

130 incremental net quantifiable cost of regulations (excluding fees), namely the cost of providing returns under proposed regulation 16(15) for whale watching (tour vessel) permit holders��F

131 and under proposed regulation 15(5) for whale watching (aerial) permit holders – would be approximately $0.11m and $0.07m��F

132, respectively in 2009/10��F

133 present value dollars. Therefore, as with Option B, in relation to risk minimisation, Option C would result in an increase in the cost of compliance (not

126 Calculated as the difference between the lower range of potential tourist benefits from whale watching and swimming = $100.5m under Option B minus $9 million of tourist benefits lost under Option C (see Part A3.1 of Appendix 3 in this RIS). 127 Calculated as the difference between the upper range of potential tourist benefits from whale watching and swimming = $148.8m under Option B minus $13.3 million of tourist benefits lost under Option C (see Part A3.1 of Appendix 3 in this RIS). 128 See Table A2.4 of Appendix 2 in this RIS for source of estimates. 129 This includes the welfare of individual animals. 130 It should be noted that the life of regulations under Option B is limited to 10 years, by operation of section 5(1) of the Subordinate Legislation Act 1994. 131 It is assumed here that 10 whale watching (tour vessel) permits would be continue to be held by the marine mammal tour industry at any one time. 132 See Part A1.1.1 of Appendix 1 of this RIS for source of estimates. 133 Discounted using a real discount rate of 3.5%.

53

including fees) on taxpayers as compared to the ‘base case’ which is greater than under Option A.

Furthermore, under proposed regulations 15(3), 16(3) and 19(3) for whale watching (aerial) whale watching (tour vessel) and seal watching, respectively (26 permit holders), the conditions of the permit would need to be made clearly visible and posted on signs giving a 10-year (printing/laminating) cost equal to $513.78��F

134 in 2009/10 present value dollars. This cost would be imposed either or the permit holders themselves or the general taxpaying community if DSE were to supply the signs.

The estimated total incremental quantifiable cost of Option C (excluding fees) would therefore $0.18m over 10 years in 2009/10 dollars and greater than under Option A but less than under Option B.

Under Option C, there would be no issue of whale swim permits and therefore, the 10-year cost of the proposed fees regulations would be equal approximately $0.08m in 2009/10 dollars (see Part A5.4.2 of Appendix 5 of this RIS for source of estimate). This incremental cost represents 4 issues of an estimated 104 3-year permits.

Unquantifiable incremental net cost of Option C (II Compliance costs)

Option C would result in the same level of unquantifiable costs as with Option B (see Table 11a) except that proposed regulations 17(1) to 17(21) would no longer be relevant as no whale swims would be allowed. The loss of the whale swim sector of the industry (typically in Port Phillip Bay) would involve a loss of profits for whale swim tour operators. Given that 11,600 passengers are involved in whale swims per annum��F

135 and that the typical adult fee for a whale swim (including wet suit hire) is around $112��F

136 - the total estimated loss in revenue would be approximately $1.3m��F

137 per annum. However, given that the level of costs of providing whale swim tours remains commercially confidential and unavailable, the amount of profit foregone remains unquantifiable. Nonetheless, this option would most likely threaten the sustainability of the whale tourism industry in Port Phillip Bay��F

138. Option C would be expected to result in greater unquantifiable costs as compared with Option B.

134 See Part A3.2 of Appendix 3 of this RIS for source of estimate. 135 Data sourced from returns submitted to DSE by permit holders. 136 Based on average adult prices for 2009 of $120, $110 and $105. 137 See Table A2.5 of Appendix 2 of this RIS. 138 Tim Harding & Associates (2004).

54

Summary of costs and benefits under Option C

Table 11a – Summary of 10– year costs and benefits under Option C��F

139


Minimisation of risk to potential tourist benefits arising from human interactions with marine mammals – worth up to between $91.5m and $135.6m.

Consumers of whale watching activities. Quantifiable

benefit (I Risk minimisation) Minimisation of risk to potential tourist benefits arising from

human interaction with marine mammals – worth up to up to between $51.3m and $57.7m.


Minimisation of risk to conservation and protection of marine mammals; human safety; and long term profits and sustainability of marine mammal tourism arising from human interactions with marine mammals

Species/populations /individual marine mammals; individual people; tour operators.

Unquantifiable benefit (I Risk minimisation) Additional minimisation of specific risk to the extinction of

the dolphin population in Port Phillip Bay arising from human interactions with whales in this area.

Specific species and populations of dolphins in Port Phillip Bay.


Cost of providing returns of approx $0.07m. Whale watching (aerial) tour permit holders.

Cost of printing and laminating signs showing permit conditions of $513.78


Cost of marine mammal tour permit fees of approx $0.08m Marine mammal tour permit holders


Minor inconvenience costs. Tourists and tour operators.

Minor emotional costs. Whale rescuers.

Potentially major foregone revenues in the short term due to permit conditions��F

141 Tour operators.

Loss of profits due to abolition of whale swim sector of the marine mammal tour industry – including a loss of $1.3m of revenue with associated reduction of unquantifiable producer costs of providing whale swim activities.

Whale swim tour operators.

Unquantifiable cost��F


Threat to the sustainability of the whale tourism industry in Port Phillip Bay

Whale tour operators in general.


55

The comparative advantages and disadvantages of Option C are summarised in Table 11b. Table 11b: Comparative advantages and disadvantages of Option C (variation of proposed regulations prohibiting swim tours) Advantages Disadvantages

• Risk to marine mammal populations minimised

• Risks to human safety minimised more than Option B

• Sustainable tourism industry maintained, but less than Option B

• Welfare of animals protected

• Long-term viability of marine mammal populations protected

• Loss of $1.3m of revenue compared to Option B as a result of no swim tours.

• Industry may forego some major short term revenue due to permit conditions

• Less benefits to some tourists than Option B

• Minor inconvenience to other tourists and recreationalists

• Possible emotional costs to some potential whale rescuers

• Permit holders required to complete returns

• Permit holders required to pay fees but cost would be slightly less than under Option B

4.3.4 Option D: (Variation of proposed regulations requiring permits for all seal swim tours)

Option D would involve a variation of the proposed regulations (excluding fees) requiring all seal swim tour operators to have permits as opposed to only seal tour operators at the six seal breeding colonies. This option would affect 12 additional operators including:

• four Port Phillip Bay (PPB) dolphin swim tour operators.

• approximately three operators that include swimming with the PPB seals as part of diving tours; and

• approximately five dive tour operators around Wilson’s Promontory and Marengo Reef at Apollo Bay.

The following discusses the costs and benefits of Option D.

Quantifiable incremental benefits of Option D (I Risk minimisation)

As with Option B, risks to the long-term benefits to tourists participating in marine mammal tour activities would be minimised and benefits preserved. The estimated total 10-year value of such benefits in 2009/10 dollars would be up to between $151.8m to $206.5m (see Part A2.4.1 of Appendix 2 of this RIS for source of estimate). This total would be made of:


142 of benefit for consumers of whale watching/swim activities; and


143 of benefit for consumers of seal watching/swim activities.

142 See Table A2.3 of Appendix 2 in this RIS for source of estimates. 143 See Table A2.4 of Appendix 2 in this RIS for source of estimates.

56

Unquantifiable incremental benefit of Option D (I Risk minimisation)

Option D would provide the same unquantifiable incremental benefits as discussed under Option B. There would be only a minimal additional mitigation of risks of human interactions with marine mammals (namely seal swims) with respect to the conservation and protection of marine mammals��F

144, human safety or sustainability of the seal tour industry. The regulation of human interactions with seals at breeding colonies, and touching plus feeding would be the same as under Option B.

Quantifiable incremental cost of Option D (II Compliance costs)

As with Option B, the estimated 10-year��F

145 quantifiable cost of regulations (excluding fees), under Option D would include the cost of providing returns under; proposed regulations 16(15) for whale watching (tour vessel) permit holders; 17(20) for whale swim permit holders; and 15(5) for whale watching (aircraft) permit holders, would be approximately $0.11m, $0.07m and $0.07m��F

146, respectively, in 2009/10��F

147 present value dollars.

Under Option D, there would be 22 seal permits required, therefore, the 10-year cost of the proposed fees regulations under this Option would be equal approximately $0.14m in 2009/10 dollars (see Part A5.4.3 of Appendix 5 of this RIS for source of estimate). This incremental cost represents 4 issues of an estimated 168 3-year permits.

Unquantifiable incremental cost of Option D (II Compliance costs)

A range of minor inconveniences would be incurred by tour operators and tourists as well as possible emotional costs to potential whale rescuers in not being allowed to rescue stranded or entangled whales without permission from an authorised officer or vet and potentially major foregone revenues in the short term by tour operators due to permit conditions, as with Option B��F

148. There would also be additional costs incurred by seal swim tour operators at non-breeding colony sites in having to abide by seal tour permit conditions.

There would also be printing and laminating costs associated with signs (as with Options B and C) however given that the number of dive tour operators around Wilson’s Promontory and Marengo Reef at Apollo Bay is unknown, this cost remains unquantifiable.

Summary of costs and benefits under Option D

The costs and benefits of option D over ten years are summarised in Table 12a. The comparative advantages and disadvantages of Option D are summarised in Table 12b.

144 This includes the welfare of individual animals. 145 It should be noted that the life of regulations under Option B is limited to 10 years, by operation of section 5(1) of the Subordinate Legislation Act 1994. 146 See Part A1.1.1 of Appendix 1 of this RIS for source of estimates. 147 Discounted using a real discount rate of 3.5%. 148 See Table A1.3 of Appendix 1 of this RIS.

57

Table 12a - Summary of 10–year costs and benefits under Option D��F

149


Minimising risk to potential tourist benefits arising from human interactions with marine mammals – worth up to between $100.5m and $148.8m.

Consumers of whale watching/swim activities. Quantifiable

benefit (I Risk minimisation)

Minimising risk to potential tourist benefits arising from human interaction with marine mammals – worth up to up to between $51.3m and $57.7m.


Minimisation of risk to conservation and protection of marine mammals; human safety; and long term profits and sustainability of marine mammal tourism arising from human interactions with marine mammals.

Species/populations/individual marine mammals; individual people; tour operators. Unquantifiable

benefit (I Risk minimisation) Minimal additional minimisation of specific risk to

the seal populations outside of the 6 breeding colonies arising from human interactions with whales in this area.

Specific species and populations of seals not at breeding colonies.


Cost of providing returns of approx $0.07m. Whale swim tour permit holders.

Cost of providing returns of approx $0.07m. Whale watching (aerial) tour permit holders


Cost of marine mammal tour permit fees of approx $0.14m

Marine mammal tour permit holders

Minor inconvenience costs. Tourists and tour operators. Minor emotional costs. Potential whale rescuers. Potentially major foregone revenues in the short term due to permit conditions.��F

151 Tour operators.

Cost of printing and laminating signs showing permit conditions.


Unquantifiable cost��F


Additional inconvenience cost and potential major foregone revenues for seal swim operators.

Seal swim operators who would otherwise not be conducting tours around seal breeding colonies.

Table 12b: Comparative advantages and disadvantages of Option D (variation of proposed regulations requiring permits for all seal swim tours)

Advantages Disadvantages Same as Option B: • Risk to marine mammal populations

minimised • Risks to human safety minimised • Sustainable tourism industry maintained. • Welfare of animals protected • Long-term viability of marine mammal

populations protected

• Higher costs than Option B to tour operators from permit fees, requirement to complete returns and comply with other conditions

• Minor inconvenience to other tourists and recreationalists

• Possible emotional costs to some whale rescuers • Permit holders required to pay fees but cost

would be slightly greater than under Option B


58

4.3.5 Comparison of 10-year costs and benefits between Options A, B, C, and D

Table 13 – Summary of 10–year costs and benefits��F

152 of regulatory options

152 All costs and benefits are reported in 2009/2010 present value dollars. 153 Mainly due to the inability to closely approach marine mammals within specified distances.

Option Summary of overall Benefits (I Risk minimisation)

Summary of overall Costs (II Compliance costs) Comment

Option A (Non-regulatory option)

Very limited minimisation of risks to potential tourist benefits (whale and seal tours). Benefits could be up to between $151.8m and $206.5m but are likely to be much lower due to expected low degree of voluntary adherence to guidelines. Unquantifiable benefits: Limited minimisation of risk to conservation of marine mammals and sustainability of tourism but not risks to human safety.

Cost of developing guidelines of $12.4k (including publishing, printing and distribution costs). (No unquantifiable costs)

Limited benefits compared to the base case, arising from voluntary adherence to the guidelines. Low costs

Option B (Proposed regulations)

Up to between $151.8m and $206.5m benefits for minimisation of risks to potential tourist benefits (whale and seal tours). Unquantifiable benefits: Significant minimisation of risk to conservation and protection of marine mammals; human safety; and long term profits and sustainability of marine mammal tourism.

Overall costs for all 30 estimated tour operators: • Approx $0.25m for providing returns and

printing and laminating signs showing permit conditions.


Unquantifiable costs: Minor inconvenience and emotional costs to all people due to restrictions on approaching marine mammals; Unknown but potentially major foregone revenues to tour operators due to tour permit conditions.��F

153

Significant benefits compared to the base case. Medium costs mainly due to permit fees and the costs of tour operator compliance.

Option C (Variation of proposed regulations prohibiting whale swims)

Up to between $142.8m and $193.3m benefits for minimisation of risks to potential tourist benefits (whale and seal tours). Unquantifiable benefits are the same as for Option B plus: additional minimisation of risk to the extinction of the dolphin population in Port Phillip Bay.

Overall costs for all 30 estimated tour operators:

• Approx $0.18m for providing returns and



Unquantifiable costs are the same as for Option B plus: Loss of profits to whale swim sector and potential threat to the sustainability of marine mammal tour industry in Port Phillip Bay.

Higher benefits than Option B due to conservation benefits from prohibiting whale swims. Much higher costs than Option B due to loss of tourism from prohibition of whale swims.

Option D (Variation of proposed regulations also requiring permits for seal swim tours)

Up to between $151.8m and $206.5m benefits for minimisation of risks to potential tourist benefits (whale and seal tours). Unquantifiable benefits are the same as for Option B plus: additional specific minimisation of risk arising from seal swims outside of breeding colonies to seal conservation and protection, human safety and sustainability of the seal tour industry.

Overall costs for all 30 estimated tour operators: • Approx $0.25m for providing returns and



Unquantifiable costs are the same as for Option B plus: Additional inconvenience cost and potential major foregone revenues for seal swim operators due to seal swim permit conditions.

Marginally higher benefits than Option B due to conservation benefits from requiring permits for seal swim tours. Higher costs than Option B due to added requirement for seal swim tour permits.

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4.4 Selection of preferred option A, B, C or D (excluding fees)

The purpose of this part of the RIS is to select a preferred option, on the basis of the preceding assessment of the various options in Part 4.3, by ranking the costs and benefits of the options, so as to identify the optimum combination of costs and benefits.

Table 13 in Part 4.3 of the RIS summarises the costs and benefits of all of the options as discussed in detail in that part. While the significant costs of the options can largely be quantified, the benefits cannot. However, both the costs and the benefits of the various options can be ranked against each other. Table 14 below ranks the various options in terms of both costs and benefits using a weighted decision criteria analysis. This is an accepted technique for ranking options and selecting a preferred option in an RIS.

The evaluation criteria used in this analysis are the following criteria (I + II)��F

154 to compare the effectiveness of each option (excluding fees) in achieving the relevant part of the policy objective:

I- Risk minimisation: reduction of risks from human interactions with marine mammals to: conservation and protection of marine mammals; individual animal protection; human safety; and the sustainability of the marine mammal tourism industry;

II- Compliance costs: costs (excluding fees) for tour operators other commercial users and recreationalists; and

The relative weightings of these criteria are 60% and 40% respectively, reflecting their relative importance in the decision-making process. Risk minimisation is broken down further into quantifiable and unquantifiable components (30% each) and compliance costs are broken down further into quantifiable and unquantifiable components (20% each)

The rationale for the different scores in Table 14 may be summarised as follows. For each of the criteria above, scores are assigned to each option on an ordinal scale of -4 to +4, based on the assessments of costs and benefits given in the preceding Part 4.3 of the RIS, relative to the ‘base case’. The ‘base case’ is assigned a score of zero for each of the criteria. If the option has been assessed as superior to the ‘base case’ for a particular criterion, it is assigned a positive score, and if it has been assessed as inferior to the base case, it is assigned a negative score.

It is emphasised that the different scores are assigned on an ordinal rather than a linear scale, as the purpose of the exercise is simply to rank the options. In other words, an option with a score of +4 is not necessarily 4 times superior to an option with a score of +1. The method simply means that an option with a score of +3 is superior to an option with a score of +2, which in turn is superior to one with a score of +1.

I Risk minimisation (quantifiable benefits)

As shown in Table 13, the options that would be likely to provide the greatest quantifiable benefit in terms of minimisation of risks to conservation, protection, human safety and sustainability of industry relative to the ‘base case’ (Options B and D) are assigned a score of +3. Option C is assigned a score of +2 as it provides less quantifiable benefits. Option A (the non-regulatory option) would be likely to provide the lowest minimisation of risks and is assigned a lower score accordingly of +1.

154 These Roman numerals are used to link the criteria to Table 13 of this RIS.

60

I Risk minimisation (Unquantifiable benefits)

Option C receives the highest score (+3) in terms of unquantifiable benefits of risk minimisation due to the added specific targeting of risks to the extinction of dolphins in Port Phillip Bay arising from human interactions from marine mammals (see Table 13. Options B and D receive a lower score of +2 as they would not target this specific risk and Option D would provide only ‘minimal’��F

155 additional benefits. Again, Option A receives the lowest score of +1 because measures for minimising risk are only voluntary and unlikely to be as effective as regulatory measures.

II Compliance costs (Quantifiable costs)

Option A receives a higher score (-1) in terms of quantifiable compliance costs because it results in lower net costs (that is, costs of developing and publishing guidelines (i.e. $12.4K)). Option C receives a score of -2 (i.e. approx $260K), followed by Option B which gets a score of -3 (i.e. approx $350K) and Option D which gets a score of -4 (i.e. approx $390K)(see Table 13).

II Compliance costs (Unquantifiable costs)

Option A receives a zero score because it does not result in any unquantifiable compliance costs. Option B receives the highest score of (-1) as it results in the least unquantifiable costs as compared to Option C which receive a score of -3 due to the additional loss of profits to whale swim sector and threat to the sustainability of marine mammal tour industry in Port Phillip Bay (see Table 13). Option D gets a score of -2 as it would result in additional seal tour operators (namely seal swim operators who would otherwise not be conducting tours around seal breeding colonies) needing to comply with permit conditions.

The assigned scores are then multiplied by the relevant weightings for each criterion, as discussed above, to calculate the weighted score for each option.

155 Scientific evidence suggests that seal swims outside breeding colonies have very little impact on seal conservation and protection, or human safety and would therefore have very little impact, if any, on the sustainability of the seal tour industry.

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Table 14 – Weighted criteria decision analysis – Options A, B, C and D (excluding fees options)

Criteria

Type of score I Risk Minimisation

II Compliance costs��F

156 Total score

Weighting % 60% 40% 100%

Quantifiable Unquantifiable Quantifiable Unquantifiable

Weighting % 30% 30% 20% 20% 100

Base case Score 0 0 0 0 0

Non-Regulatory and regulatory options (excluding fees)

Assigned score��F

157 +1 +1 -1 +0 +1 Option A

Weighted score +0.3 +0.3 -0.2 +0 +0.4

Assigned score +3 +2 -3 -1 +1 Option B

Weighted score +0.9 +0.6 -0.6 -0.2 +0.7

Assigned score +2 +3 -2 -3 0 Option C

Weighted score +0.6 +0.9 -0.4 -0.6 +0.5

Assigned score +3 +2 -4 -2 -1 Option D

Weighted score +0.9 +0.6 -0.8 -0.4 +0.3

Based on Table 14 (the regulatory options), Options A, B (the proposed regulations), C and D provide weighted scores of +0.4, +0.7, +0.5 and +0.3, respectively. The proposed regulations have the greatest net benefits (+0.7) and therefore Option B is the preferred option.

4.5 Assessment of fees Options 1, 2 and 3

Given the above assessment of non-regulatory/regulatory options, the purpose of this section is to assess fees options only. The costs and benefits of the various fees options (1, 2, and 3) are assessed by using the following criteria (III + IV)��F

158:

III- Fee costs: compliance costs for tour operators in terms of fees for permits; and IV- Fee equity and certainty: equity and certainty for tour operators and taxpayers.

The following assessment of the costs and benefits of the proposed fees regulations and the other fees options is conducted by discussing each option in terms of its expected incidence and distribution of costs��F

159 and benefits, relative to the ‘base case’. The overall comparison of options, including the selection of the preferred option, is undertaken by using a weighted decision criteria analysis in Part 4.6 of the RIS.

156 (-) cost / (+) cost savings. 157 (-4 to +4). 158 These Roman numerals will be used to link the criteria to Tables 19 and 20 of this RIS. 159 The basis of cost estimates are given in Appendices to the RIS. The cost estimates clearly distinguish costs imposed by the proposed regulations from costs imposed by the Act or as a result of business overheads.

62

4.5.1 Option 1: Full cost recovery fees including law enforcement costs

Under Option 1, the following stratified fee schedule would apply – as shown in Table 15, based on full cost recovery of marine mammal permit services including law enforcement costs.

Table 15 – Full cost recovery fees for 3-year marine mammal tour permits – Option 1 (2009/10)

Fee Category Year

Whale swim tour permit

Whale watching (tour vessel) tour

permit

Whale watching (aerial) tour permit

Seal tour permit

2009/10 $2,422.03 $1,310.34 $1,497.67 $1,322.30

Quantifiable incremental cost of fees under Option 1 (III Fee costs)

The cost of Option 1 in terms of fees would be equal to approximately $0.18m over 10 years in 2009/10 present value dollars – as shown in Table 16.

Table 16 – Summary and comparison of fees cost of marine mammal tour permits (2009/10 to 2018/19) in present value 2009/10 dollars��F

160 – Fees Options 1, 2, and 3

Option 10-year cost of whale swim permit fee

10-year cost of whale

watch (tour vessel)

permit fee


watch (aerial)

permit fee

10-year cost of seal permit

fee

10-year total cost in

2009/10 dollars

Option 1 (full cost

recovery fees) $37,922.19 $51,290.71 $35,173.92 $51,758.55 $176,145.37

Option 2 (partial cost

recovery fees) $24,524.45 $28,675.05 $20,504.65 $29,025.93 $102,730.08

Option 3 (maximum partial cost

recovery fees)

Between $24,524.45

and $28,196.56

Between $28,675.05

and $32,968.65

Between $20,504.65

and $23,574.87

Between $29,025.93

and $33,372.06

Between $102,730.08

and $118,112.14

160 A real discount rate of 3.5% is used for present value calculations.

63

Equity and certainty of fees under Option 1 (IV Fee equity and certainty)

Option 1 would provide fee equity��F

161 by charging different fees depending on the nature of tour operations. The recovery of law enforcement costs would lead to less fee equity��F

162 given the public benefit of law enforcement from society’s perspective. A further source of inequity, would involve the cross-subsidisation of non-law abiding tour operators by law abiding ones as law enforcement costs are recovered indiscriminately from all permit holders. Inequity would also result from permit holders having to pay full costs despite a permit condition requiring them to provide education with respect to marine mammal conservation and protection. Option 1 would provide some certainty for tour operators when obtaining permits every 3 years, as fees would only be increased according to movements in inflation.

4.5.2 Option 2: Partial cost recovery fees (2009/10) excluding law enforcement costs – the proposed fees

Fees Option 2 involves setting fees based on estimated costs less the costs of law enforcement and applying a 25% discount��F

163 to reflect the public benefit of the education requirement of marine mammal permit conditions. Under Option 2, the following stratified fee schedule would apply – as shown in Table 17, based on partial recovery.

Table 17 – Partial cost recovery fees for 3-year marine mammal tour permits – Option 2 (2009/10)

Fee Category Year



permit


Seal tour permit

2009/10 $1,566.34 $732.57 $873.07 $741.54


The cost of Option 2 in terms of fees would be equal to approximately $0.1m over 10 years in 2009/10 dollars – as shown in Table 16.


As with Option 2, Option 1 would provide fee equity��F

164 by charging different operators different fees depending on the nature of their tour operations. Partial cost recovery would result in further fee equity��F

165 as permit holders would receive a discount for permits for providing public benefits of education to the community with respect to the conservation and protection of marine mammals. Option 2 would also provide some certainty for tour operators when obtaining permits every 3 years, as fees would only be increased according to movements in inflation as with Option 1.

161 Vertical equity (see glossary for definition). 162 Horizontal equity (see glossary for definition). 163 This is the approximate discount that is provided to students attending Melbourne Zoo which is supposed to reflect the public benefit which accrues from the educational aspects of their visit with respect to conservation and protection of species. 164Vertical equity (see glossary for definition). 165 Horizontal equity (see glossary for definition).

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4.5.3 Option 3: Maximum partial cost recovery fees (2018/19) excluding law enforcement

Option 3 involves setting maximum fees based on the partial cost recovery of the maximum possible annual cost for DSE in processing, issuing, monitoring and auditing permits (that is, the cost of these activities in 2018/19) – excluding law enforcement costs. Under Option 3, the following stratified fee schedule would apply – as shown in Table 18, based on partial recovery and this would provide flexibility for DSE in being able to charge any amount up to this level.

Table 18– Partial cost recovery of maximum fees for 3-year marine mammal tour permits – Option 3 (2018/19)

Fee Category Year



permit


Seal tour permit

2009/10 $2,043.72 $955.84 $1,139.16 $967.54


The cost of Option 2 in terms of fees would be equal to approximately between $0.1m and $0.12m over 10 years in 2009/10 dollars – as shown in Table 16.


As with Options 1 and 2, Option 3 would provide fee equity��F

166 by charging different fees depending on the nature of tour operations. Furthermore, partial cost recovery would lead to further fee equity��F

167 as permit holders would receive a discount for permits for providing public benefits of education. However, Option 3 would provide less certainty for tour operators when obtaining permits every three years, as fees could be set at any level up to the maximum.

4.5.4 Comparison of 10-year fee costs, equity and certainty between Options 1, 2, and 3

Table 19 compares the 10-year fee additional costs and equity and certainty of fees Options 1, 2, and 3 in relation to the ‘base case’.

166Vertical equity (see glossary for definition). 167 Horizontal equity (see glossary for definition).

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Table 19 – Summary comparison of 10–year fee costs��F

168, equity and certainty – Options 1, 2 and 3

Fees Option Option 1 (full cost recovery including law enforcement costs)

Option 2 (partial cost recovery fees) – the proposed fees option

Option 3 (maximum partial cost recovery fees)

III Fee costs $176,145.37 $102,730.08 Between $102,730.08 and $118,112.14��F

169

Comparison of options N/A < Option 1 < Option 1 and < = Option

2

IV Fee equity and certainty

Permit holders charged different fees. Cross-subsidisation of public law enforcement benefits by permit holders. Cross-subsidisation of non-law abiding tour operators by law abiding ones. Cross-subsidisation of public education benefits by permit holders. Certainty of fees to permit holders.

Permit holders charged different fees. Taxpayers finance law enforcement and education benefits. Certainty of fees to permit holders.

Permit holders charged different fees. Taxpayers finance law enforcement and education benefits. Uncertainty of fees to permit holders.

Comparison of options N/A > Option 1 > Option 1 and < Option 2

4.6 Selection of preferred fees option 1, 2, or 3

The purpose of this part of the RIS is to select a preferred fees option, on the basis of the preceding assessment of the various options in Part 4.3, by ranking the costs and equity plus certainty of the options, so as to identify the optimum combination.

The costs and benefits of the various fees options (1, 2 and 3) are assessed using the following criteria (III + IV)��F

170 to compare the effectiveness of each fees option in achieving the policy objective:

III- Fee costs: compliance costs for tour operators in terms of fees for permits; and

IV- Fee equity and certainty: equity and certainty for tour operators and taxpayers.

The relative weightings of these criteria are 70% and 30% respectively, reflecting their relative importance in the decision-making process.

168 All costs are reported in 2009/2010 present value dollars. 169 Maximum 2008/19 fees represent the fees in 2009/10 which are based on a 75% recovery of costs in 2009/10 (excluding law enforcement costs) and which have been incremented by the average annual rate of inflation (assumed to be 3% in this RIS) to simulate the increment in fee units by Department of Treasury and Finance. The maximum value considers the possibility (however unlikely) that such maximum fees could be set by DSE and maintained over 10 years throughout the life of the proposed fees regulations. 170 These Roman numerals are used to link the criteria to Table 20 of this RIS.

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III Fee costs

As shown in Table 20, the Option that would be likely to provide the greatest fee cost (Option 1) is assigned a score of -2. Option 3 is assigned a score of -1 as it has the ‘potential’ to provide fee costs equal to Option 2 however they could be larger. Option 2 (the proposed fees option) would be likely to provide the lowest ‘definite’ cost and is also assigned a lower score accordingly of -1.

IV Fee equity and certainty

Option 2 receives the highest score (+3) in terms of equity and certainty (see Table 20). Option 3 receives a lower score of +2 as while it provides for the same level of equity as Option 2 it results in less certainty. Option 1 receives the lowest score of +1 because it would lead to substantial inequity although certainty.

Table 20 - Weighted criteria decision analysis – fees options

Criteria

Type of score III Fee costs��F

171 IV Fee equity and certainty

Total score

Weighting % 70% 30% 100

Base case Score 0 0 0

Options relating to fees

Fees Option 1 Assigned score��F

172 -2 +1 -1

Weighted score -1.4 +0.3 -1.1

Fees Option 2 Assigned score -1 +3 2

Weighted score -0.7 +0.9 0.2

Fees Option 3 Assigned score -1 +2 1

Weighted score -0.7 +0.6 -0.1

Based on Table 23 (the fees options), Option 1, 2 (the proposed fees regulations), 3 provide weighted scores of -1.1, +0.2, and -0.1, respectively. The proposed fees regulations have the greatest score (+0.2) and therefore Option 2 is the preferred fees option.

171 (-) cost / (+) cost savings. 172 (-3 to +3).

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5.0 Nature and effects of preferred option

5.1. Explanation of proposed regulations

This Part of the RIS describes the nature of the proposed regulations.

Although the base case for the evaluation of regulations that are proposed to replace regulations due to sunset is to have no regulations, the following comparisons with the existing regulations may be of assistance to interested stakeholders.

The proposed regulations generally deal with similar matters to the existing regulations but with additions and improvements to implement recent changes in legislation Government policy and national guidelines, especially in relation to seals.

A summary comparison of the substantive differences (other than wording and changes of penalty)��F

173 between the existing regulations and the proposed new regulations is given in Appendix 7 to this RIS. The more significant changes and their reasons are listed in Table 21 below.

Table 21 – List of proposed significant changes from existing regulations

Proposed Reg No.

Subject matter Existing Reg No.

Reason for change

PART 1 PRELIMINARY

6(1)(a) to (e)

Prescribed minimum distance for whales and dolphins – refer Table 22.

4(b) Consistency with national guidelines

6(1)(f) and (g)

Prescribed minimum distance for whales and dolphins in narrow waterways – refer Table 22

N/A (new)

Refer to Parts 1.3.1 and 5.1.2 of this RIS.

6(2) Prescribed minimum distance (stranded or entangled whales) – refer Table 22.

4(a) Consistency with national guidelines

7 Minimum approach distances for seals - refer Table 23.

N/A (new)

Amendments to Act - consistency with latest scientific research.

8 Restrictions regarding operating aircraft in the vicinity of marine mammals

N/A (new)

Consistency with national guidelines

18,19 Seal tour permits N/A (new)

Amendments to Act - refer to Part 1.3 of RIS.

20 Fees for marine mammal tour permits • whale watching (vessel) tour

permit • whale watching (aerial) tour

permit • whale swim tour permit • seal tour permit

8 Fees recalculated in accordance with Treasury guidelines on cost recovery

173 Penalties are discussed in Part 5.1.4.

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Part 1 – Preliminary

Part 1 of the proposed regulations specifies preliminary matters, including the objectives, authorising provisions, commencement date, exemptions and definitions of terms used in the regulations. (The proposed regulations do not apply to marine mammals in zoos etc).

The formal objectives of the proposed regulations are to:

(a) provide for the long term protection of marine mammals by-



(iii) prescribing conditions for whale watching tour permits, whale swim tour

permits and seal tour permits; and


(b) prescribe the fees payable for the issue of whale watching tour permits, whale swim

tour permits and seal tour permits.

The definitions of ‘allowable vessel’ and ‘prohibited vessel’ are important. It is proposed to treat vessels as either allowable or prohibited, in line with the Australian National Guidelines for Whale and Dolphin Watching 2005 (The National Guidelines).

Allowable vessels include motorboats, yachts, kayaks, canoes, surfskis, and inflatable craft. These will be permitted to approach marine mammals up to the minimum prescribed distance. Prohibited vessels include all personal motorised watercraft (for example, jet skis and underwater scooters), parasails, remotely operated craft, wing-in-ground effect craft, and hovercraft. Prohibited vessels should not approach closer than 300m to any whale or dolphin or any seal breeding colony.

Prohibited vessels have been shown to have a high impact on whales and dolphins. These impacts include: disruption of important behaviour; displacement from or avoidance of important habitat areas; stress; injury; increased mortality and reduced breeding success.

Part 2 – Prescribed minimum distances

Draft Regulation 6 prescribes the minimum distances��F

174 from whales, for the purposes of section 77A of the Act, as shown in Table 22. Note that due to section 77A of the Act these prescribed minimum distances do not apply to people acting in accordance with a tour permit. Minimum approach distances for permit holders are set in Part 5 of the proposed regulations, and are also shown in Table 22.

174 Except where authorised under the Act by a permit, a written authorisation or as an authorised officer.

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Table 22 – Comparison of prescribed minimum distances from whales

Category Proposed distance (non-permit holder)

Existing distance (non-permit holder)

Proposed distance (permit holder)

Existing distance (permit holder)

Person operating prohibited vessel 300m 100m N/A N/A

Person operating aircraft��F

175 500m altitude within a 500m radius of a whale

300m altitude within a 300m radius of a whale

300m altitude within a 300m radius of a whale

N/A

Person swimming near dolphin outside Ticonderoga Bay Sanctuary Zone��F

176 30m 30m N/A N/A

Person operating allowable vessel near dolphin outside Ticonderoga Bay Sanctuary Zone

100m 100m 50m��F

177 50m��F

178

Person swimming near dolphin inside Ticonderoga Bay Sanctuary Zone

30m 30m N/A N/A

Person operating allowable vessel inside Ticonderoga Bay Sanctuary Zone

200m 200m 200m 200m

Person swimming near whale not a dolphin

100m 30m N/A N/A

Person operating allowable vessel near whale not a dolphin

200m 100m 100m176 50m177

Person swimming near dolphin in narrow waterway��F

179 30m 30m N/A N/A

Person operating allowable vessel near dolphin in narrow waterway

30m 100m 25m 50m

Person swimming near whale not a dolphin in narrow waterway

100m 30m N/A N/A

Person operating allowable vessel near whale not a dolphin in narrow waterway

30m 100m 25m 50m

Person near stranded or entangled whale

300m 50m if stranded on land 100m if entangled

N/A N/A

175 Where observing whales is the purpose, or one of the purposes, for which the person is operating the aircraft. 176 A map of this zone is provided in Schedule 4 to the proposed regulations. 177 Also, not closer than 100 metres or more than 5 times in a whale swim tour and not more than 10 times each day. 178 Also, (a) not closer than 100 metres more than 4 times each tour but in any event not more than 8 times each day, (b) not closer than 100 metres for more than 5 minutes at a time, and (c) not closer than 30m during a whale swim. 179 A narrow waterway is defined in the proposed regulations as a waterway of less than 300 metres in width at its widest point.

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The main reason for the differences in the prescribed minimum distances between the proposed and existing regulations is to comply with the national guidelines, as discussed in Part 1.6.1 and Appendix 7 of this RIS. The proposed prescribed minimum distances are set at this level to ensure that all vessels comply with the distances recommended in the National Guidelines, including tour vessels. (Noting that licensed tour vessels must be allowed to approach closer than the prescribed minimum distances - refer to the insert on whale watching tours in Part 3.1 of this RIS, which outlines the restrictions imposed on the regulations by the definition of ‘whale watching tour’ in the Act).

An exception is made for the minimum distances near whales and dolphins in narrow waterways, such as the Gippsland Lakes, where the minimum prescribed distances recommended in the National Guidelines would be unworkable in many areas. The proposed regulations allow boats to pass closer to dolphins in narrow waterways when necessary for safety reason or for clear passage, but minimise the impact of this as much as possible.

Specifically, the requirements of proposed regulations for narrow waterways are:

• 30m minimum approach distance for vessels to whales and dolphins;

• vessels must move past the marine mammals at a constant speed no greater than 5 knots (no stopping);

• vessels must avoid sudden changes of direction;

• vessels must avoid sudden changes in speed; and

• vessels must not remain in the caution zone for longer than is necessary for safe passage.

Other minimum distances are consistent with the national guidelines, except in relation to the special case of the Ticonderoga Bay Sanctuary Zone where larger distances are proposed to provide greater protection for dolphins in this important feeding ground.

Draft Regulation 7 prescribes the minimum distances��F

180 from seals, as shown in Table 23:

Table 23 –prescribed minimum distances from seals��F

181

Category Proposed distance (non-permit holder)

Proposed distance (permit holder)

Person approaching seal on land��F

182 30m 10m

Person operating prohibited vessel near significant��F

183 or protected seal breeding colony ��F

184(at all times)

300m n/a

Person operating allowable vessel near significant seal breeding colony (at all times)

30m 10m

180 Except where authorised under the Act by a permit, an authorisation or acting as an authorised officer or under the direction of an authorized officer; or the person is the holder of a commercial fishing license tending to fishing gear. Also except where necessary to avoid damage to person or property, enable the launch or retrieval of a vessel or to comply with navigation regulations. 181 There are no existing prescribed minimum distances from seals. 182 ‘Land’ does not include a man-made water-based structure. 183 Maps of significant seal breeding colonies are provided in Schedule 1 to the proposed regulations. 184 Maps of protected seal breeding colonies are provided in Schedule 2 to the proposed regulations.

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Person operating allowable vessel near protected seal breeding colony in the seal breeding season��F

185

100m 50m

Person operating allowable vessel near protected seal breeding colony outside the seal breeding season

50m 30m

Person approaching seal on man-made water-based structure

5m 5m

Person operating aircraft 300m altitude within a 300m radius of a seal

n/a

These minimum distances are consistent with the latest scientific research, as discussed in Part 2.1.1 of this RIS. Exemptions will be given to minimum approach distances from seals for holders of commercial fishing licences when tending to fishing gear. Issues relating to seals and their impact on aquaculture and fisheries are the responsibility of Fisheries Victoria, Department of Primary Industries (DPI). DPI is currently addressing these issues in their implementation of the National Seal Strategy.

Part 3 – General restrictions on activities relating to marine mammals

Part 3 contains general restrictions on human interactions with marine mammals, which are largely similar to Part 3 of the existing regulations, except in relation to the aircraft and dogs near marine mammals. The restrictions on aircraft are to achieve consistency with the national guidelines, whereas the restrictions on dogs are largely to prevent the transmission of diseases to and from marine mammals.

Part 4 – Prohibitions on activities in Logan’s Beach Exclusion Zone

Part 4 excludes vessels from the Logan’s Beach Exclusion Zone��F

186 to protect Southern Right Whales from disturbance while they are resident in the calving grounds at Logans Beach, Warrnambool. This Part is similar to Part 4 of the existing regulations.

Part 5 – Marine mammal tour permits

The regulations impose no limits on the number of permits.

The number of whale watching or whale swim permits can be limited in a designated ‘limited permit area’, which is declared by the Secretary following a public nomination process as outlined in section 83 of the Wildlife Act. This process is separate from the regulations. There is no similar process for limiting the number of seal tour permits.

This Part prescribes conditions of various tour permits to minimise risks to both marine mammals and human safety, consistent with the national guidelines. These conditions are similar to those prescribed in the existing regulations, including the requirements for public education and monthly returns, except for seal tour permits which are a new requirement. Monthly returns are required by all whale watching and whale swim tour permit holders. Returns are not proposed for seal tour permits as seal tours are relatively low impact compared to whale watching and swim tours. There are also no time limits on seal tours, so there are no compliance reasons for having returns. However, annual returns may still be required as specified in an individual permit condition.

185 The seal breeding season is defined as from the first day of November until the last day of February. 186 A map of this zone is provided in the schedules to the proposed regulations.

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This Part also prescribes fees for the various types of tour permits, as calculated in Appendix 4 (see Part A4.3 in this RIS for definition of full costs of services to be recovered and Part A4.8 in this RIS for discussion of the public benefit discount to be provided). Table 24 compares the new fees with the old fees.

Table 24 - Comparison of proposed and current fees for 3 year permits or equivalent Fee regulation

Description Proposed fee (Based on one fee unit = $11.69 for 2009-10)

Current fee % change +/-

20(1) Whale watching (aerial) tour permit


n/a n/a

20(2) Whale watching (vessel) tour permit


$438.38 for 2-year permits (37.5 fee units) = 18.75 fee units/year

+ 12 %

20(3) Whale swim tour permit $1566.34 for 3 year permits (135 fee units) = 45 fee units/year

$818.30 for 2-year permits (70 fee units) = 35 fee units/year

+28.6 %

20(4) Seal tour permit $741.54 for 3 year permits (63 fee units) = 21 fee units/year

n/a n/a

Aerial and seal swim tour fees are new; and the change in fees for whale swim and whale watching (tour vessel) fees are based on a much more detailed analysis of costs to DSE of providing permit services.

The proposed fees are actually less than the fees originally calculated in the RIS for the Wildlife (Whales) Regulations 1998, which were $700 for whale swim permits and $375 for whale watching permits for one year . These fees were effectively halved in 2004 when permit lengths were extended to two year at no additional cost. Thus the current fees are at a level well below that required for cost recovery.

Table 25 – Summary of the quantitative costs (including fees) of the proposed regulations in 2009/10 and over 10 years in 2009/10 present value dollars

Description of quantitative cost Cost for 2009/10

10-year cost in 2009/10 dollars

Cost of providing returns by whale swim tour permit holders. $6,427.89��F

187 $66,648.89

Cost of providing returns by whale watching (tour vessel) permit holders $11,082.58��F

188 $114,911.88

Cost of providing returns by whale watching (aerial) tour permit holders $6,649.55��F

189 $68,947.13

Cost of printing and laminating signs showing permit conditions for marine mammal tour permit holders or the general taxpaying community

$300��F

190 $592.82

Cost of marine mammal tour permit fees to marine mammal tour permit holders $26,244.87��F

191 $102,730.08��F

192

Total quantifiable cost $50,704.89 $353,830.80

187 See Table A1.2(a) of Appendix 1 of this RIS for source of estimates (2009/10 and over 10 years) 188 See Table A1.2(b) of Appendix 1 of this RIS for source of estimates (2009/10 and over 10 years) 189 See Table A1.2(c) of Appendix 1 of this RIS for source of estimates (2009/10 and over 10 years) 190 Cost incurred once every 5 years only 191 $1,566.34 (whale swim permit fee) x 4 + $732.57 (whale watching (vessel) permit fee) x 10 + $873.07(whale watching (aerial) permit fee) x 6 + $741.54 (seal permit fee) x 10 = $26,244.87 192 See Part A5.2 of Appendix 5 of this RIS for source of estimate.

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Table 25 summarises the quantitative costs (including fees) of the proposed regulations as an annual figure and over 10 years. The total quantitative cost is given as approximately $50.7K in 2009/10 and approximately $353.8K over 10 years in 2009/10 present value dollars (see Table 25).

Based on a 10-year quantitative cost of approximately $353.8K, the proposed regulations would only have to provide for 0.2% the estimated tourist benefits (taking the lower estimate of $178.6 million) to break even. This does not take into consideration the unquantifiable costs of the proposed regulations. However, the unquantifiable costs of the proposed regulations have been identified as being minor and, as such, would not exceed the lower estimate of Tourist benefits (see Table A1.3 for a detailed summary of unquantifiable costs).

Enforcement

The proposed regulations will be enforced by:

• Regular boat patrols in Port Phillip Bay by DSE Wildlife Officers (where the majority of interactions are likely to take place).

• Patrols by wildlife officers in other locations with high levels of interaction between boats and marine mammals e.g. Gippsland Lakes.

• Ad hoc monitoring by DSE and/or Parks Victoria staff during the regular course of their duties (e.g. if they happen to be in the vicinity for other reasons).

• Public information including a contact phone number & email contact to report offences against the regulations.

Monitoring of permit holders will be conducted in two main ways:

1. A minimum of one undercover audit per year for each permit holder. This involves a DSE/Parks staff member or contractor attending one or more tours undercover to check the permit conditions are being adhered to.

2. Random overt inspections by the DSE Wildlife Officer during their normal patrol duties. This would include log book inspections and checking signage. This may occur up to two or three times per year for each permit holder.

The maximum penalty for a breach of the regulations is 20 penalty units.��F

193 Further information on compliance and enforcement issues is provided in Part 2.4 of this RIS.

5.2. Effects of proposed regulations

An assessment of the expected costs and benefits of the proposed regulations is given in Part 4.3.2 of the RIS.

In summary, the proposed regulations are expected to impose minor quantifiable costs on tour operators, together with unquantifiable costs on tour operators, marine recreationalists, taxpayers and the general public. They are expected to confer net benefits in terms of minimising risks to the conservation and protection of marine mammals and to public safety. The distribution of costs and benefits is not inequitable.

The proposed regulations would be likely to impose similar levels of costs as the existing regulations on whale tour operators, but new costs to seal tour operators.

193 For the financial year commencing 1 July 2009, the value of a penalty unit has been fixed by the Treasurer at $116.82.

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5.2. Impact on small business

Where the costs of compliance with regulations comprise a significant proportion of business costs, small businesses��F

194 may be affected disproportionately by such costs compared to large businesses. It is assumed that all tour operators are likely to be small businesses. However, in this case, the proposed fees are unlikely to comprise a significant proportion of business costs.

5.3. Impact on administrative burden

It has been determined that the regulatory change Wildlife (Marine Mammals) Regulations 2009 will not lead to a material change in the administrative burden.

The proposed changes in the regulations would impose minimal administrative burdens on whale tour permit holders, which is less than the $250,000 per annum threshold required by Government guidelines for the measurement of change in administrative burden.��F

195 The only administrative burden which applies is the requirement to provide information for monthly returns for whale tour permit holders and signs showing permit conditions (the latter of which may be absorbed by the taxpaying community).

Under the proposed changes, monthly returns will be required for returns for whale watching (aerial), whale watching (tour vessel) and whale swim tours. Returns for whale swim and whale watching (vessel) tours are required under current regulations. However this is a new requirement for aerial whale watching tours. Returns are required for such tours to ensure compliance with the new regulations, and to provide additional data to assist researchers assessing the extent and impact of the tour industry.

Even assuming a ‘base case’ of having no regulations, under proposed regulations 15(5), 16(15) and 17(20) (involving monthly returns for whale watching (aerial), whale watching (tour vessel) and whale swim tours, respectively) the incremental cost would be $250,507.89��F

196 over 10 years in 2009/10��F

197 dollars. In 2009/10 dollars the annual cost to 20 tour operators��F

198 would be only $24,160.02��F

199. The new administrative burden associated with the proposed regulations includes the monthly return requirements for whale watching aerial tour operators, which is estimated to be $6,649.55 per annum in 2009/10 (see Table 25). There will be immaterial additional costs associated with collecting and reporting additional information due to current aerial tour operators already collecting this information for their own purposes. These immaterial costs have already been factored into the 2 minute estimate for submitting monthly returns by aerial tour operators.

Also, even assuming a ‘base case’ of having no regulations under proposed regulations 15(3), 16(3) and 19(3) for whale watching (aerial), whale watching (tour vessel) and swimming and seal watching, respectively, the cost of making conditions of the permit clearly visible and posting them on signs, would only result in a 10-year cost equal to $592.82��F

200 in 2009/10 present value dollars. This cost would only be incurred by permit holders if DSE were not to supply the signs.

194The Australian Bureau of Statistics (ABS) definition of a small business is one that has less than 20 full-time employees. 195 State Government of Victoria, 2007. 196 See Part A1.1.1 of Appendix 1 of this RIS for source of estimate. 197 Discounted using a real discount rate of 3.5%. 198 4 whale swim, 10 whale watching (tour vessel) and 6 whale watching (aerial) operators. 199 See Tables A1.2(a)(b) and (c) of Appendix 1 of this RIS for source of estimate = ($6,427.89) + ($11,082.58) + ($6,649.55) = $24,160.02. 200 See Appendix A1.1.2 for source of estimate.

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Furthermore, it is concluded that there would be no substantial burden imposed by any change in population figures as these are not expected to exceed the estimated numbers and would remain stable. That is, the number of whale swim tour permits will be maintained at four, and the maximum number of whale watching (tour vessel) and whale watching (aerial) permits would remain at ten and six, respectively, over the life of the proposed regulations. For these reasons, the administrative burden to business as a result of the proposed changes to regulation will not exceed $250,000 per year.

5.4. Comparison with other jurisdictions

A comparison with equivalent regulations in other Australian states and territories plus New Zealand is given in Appendix 6. The main conclusions of this comparison are:

• the proposed minimum distances and other requirements with respect to human interactions with whales dolphins and seals are not significantly more onerous than those in other Australian and New Zealand jurisdictions;

• New Zealand, the Commonwealth, Western Australia, South Australia, New South Wales and Victoria currently require permits or licences for commercial whale watching;

• South Australia also has a dolphin swim tour industry, and tours including swimming with Dwarf Minke Whales are available in the Great Barrier Reef Marine Park (which is in Commonwealth waters);

• Victoria is the only state that currently has regulations that stipulate the conditions of marine mammal tour permits, although other states are developing regulations along similar lines.

Overall, the chief difference between Victoria and some other states is the obligation to obtain permits for marine mammal tourism. However, this obligation is imposed under the Act, rather than by the proposed regulations.

In summary, the obligations imposed by the proposed regulations are not significantly more onerous than those in other Australian and New Zealand jurisdictions.

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6.0 National Competition Policy tests

6.1 Competition principles and guidelines

At the Council of Australian Governments (COAG) meeting in April 1995 (reaffirmed in April 2007), all Australian governments agreed to implement the National Competition Policy (NCP). As part of the Competition Principles Agreement, all governments, including Victoria, agreed to review all legislation containing restrictions on competition under the following principle:

The guiding principle is that legislation (including Acts, enactments, Ordinances or regulations) should not restrict competition unless it can be demonstrated that:

(a) the benefits of the restriction to the community as a whole outweigh the costs; and

(b) the objectives of the legislation can only be achieved by restricting competition.��F

201

To successfully pass the competition and cost-benefit tests, for each proposed regulation it is necessary to:

• Step 1: Identify the restriction on competition, if any;

• Step 2: Show that the restriction, if any exists, is necessary to achieve the objective;

• Step 3: Assess the costs to the community caused by the restriction;

• Step 4: Assess the community benefits; and

• Step 5: Assess whether benefits outweigh the costs.

If no restriction on competition is found in the course of Step 1, it is not necessary to complete the remaining steps (that is, Steps 2 to 5). Issues to be discussed in the NCP assessment relate to whether or not the proposed regulations restrict competition in the relevant market by one or more of various means such as:

• allowing only one company or person to supply a good or service (monopoly);

• requiring producers to sell to a single company or person (monopsony);

• limiting the number of producers of goods and services to less than four (duopoly or oligopoly );

• limiting the output of an industry or individual producers; or

• limiting the number of persons engaged in an occupation.��F

202

201 COAG, 2007. 202 State Government of Victoria, 2005.

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6.2 NCP assessment

The markets affected by the proposed regulations are the markets for commercial marine mammal tourism. There are an estimated maximum of 30 permits to be issued which authorise marine mammal tourism. (National Competition Policy applies to businesses rather than to individuals engaging in non-business activities such as recreation).

All businesses engaged in marine mammal tourism would be equally affected by the same regulatory environment. The proposed regulations would impose the following quantitative costs:

• Fee costs for permits (regulation 20) payable every 3 years. The fee cost would be $732.57 (whale watching (tour vessel) tour permit); $873.07 whale watching (aerial) tour permit); $1,566.34 (whale (swim) tour permit); and $741.54 (seal tour permit). The fees are not set so high as to constitute a barrier to entry for such businesses where the typical adult price for whale watching is around $56��F

203 whilst the fee for swimming (including wet suit hire) is around $112��F

204.

• Non-fee cost of providing returns under proposed regulations 15(5) , 16(15) and 17(20) (involving whale watching (aerial), whale watching (tour vessel) and whale swim tours, respectively) would be $250,507.89��F

205 over 10 years in 2009/10��F

206 present value dollars. In 2009/10 dollars the average annual cost to per tour operator would be only $3,823.49��F

207. However, this represents approximately only 0.1% of the annual revenue for the whale tourism industry (excluding seals) estimated to be $3,919,200��F

208.

• Non-fee costs of providing signs regarding permit conditions under proposed regulations proposed regulations 15(3), 16(3) and 19(3) for whale watching (aerial) whale watching (tour vessel), whale swimming and seal watching, respectively would result in a 10-year (printing/laminating) cost equal to $592.82��F

209 in 2009/10 present value dollars. This cost would be imposed either or the permit holders themselves or the general taxpaying community if DSE were to supply the signs. Even if the cost were imposed on permit holders, and given that there are 30 of them, this would result in a cost per tour operator of only $19.76 over 10 years.

These quantifiable costs arising from regulations 20, 15(3), 15(5), 16(3), 16(15) 17(20) and 19(3) would constitute only a very small fraction of the annual turnover of each business. Consequently, the proposed regulations would not constitute a barrier to entry in any markets where businesses are involved in marine mammal tourism. The proposed regulations are therefore unlikely to restrict competition.

Given that the DSE is the only organisation which can provide marine mammal tour permits in Victoria - the competitive neutrality principle that is, the need for fair competition with other private sector businesses in the same market, does not apply.

203 Based on average adult prices for 2009 of $65, $55 and $49. 204 Based on average adult prices for 2009 of $120, $110 and $105. 205 See Part A1.1.1 of Appendix 1 of this RIS for source of estimate. 206 Discounted using a real discount rate of 3.5%. 207 See Tables A1.2(a)(b) and (c) of Appendix 1 of this RIS for source of estimate = ($6,427.89/4 swim permits) + ($11,082.58/10 tour vessel permits) + ($6,649.55/6 aerial permits) = $3,823.49. 208 See Table A2.5 of Appendix 2 of this RIS for source of estimate. 209 See Part A1.1.2 of Appendix 1 of this RIS for source of estimate.

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7.0 Evaluation strategy The evaluation of the effectiveness of the proposed regulations will be undertaken using the following indicators:

• impacts on resident bottlenose dolphin populations;��F

210

• impacts on pup production and seal mortality at seal breeding colonies,

• sustainability of the marine mammal tourism industry;

• levels of compliance with the proposed regulations;

• monthly returns; and

• results of monitoring and audits.

The evaluation will be conducted and managed by DSE.

210 Migratory whale population numbers measured in Victoria would not be meaningful.

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8.0 Conclusions The main findings and conclusions of the RIS are as follows:

1. Marine mammals in Victorian waters need protection from interactions with humans, especially in relation to activities connected with whale and seal watching and swim tours.

2. The problems addressed by the proposed regulations may be summarised as:

• ��HRisks to the conservation and protection of marine mammals from human activities and human interactions throughout Victoria;

• ��HRisks to public safety from interactions with large whales, dolphins and seals;

• ��HThe need to maintain a sustainable tourism industry related to marine mammals; and

• ��HThe need to minimise use conflicts between marine mammal tourism and other human uses of marine waters, such as recreation, fishing and aquaculture.

3. The market failure associated with these problems is discussed in Part 2.3 of this RIS.

4. To address the problems identified above the policy objectives of the regulatory proposal may be summarised as:

To minimise risks to:

• the conservation and protection of marine mammal populations, and

• human safety,

from human interactions with marine mammals in a way which—

(a) provides for sustainable tourism and other commercial and recreational activities;

(b) is compatible with the economic, social and conservation objectives of the State; and

(c) achieves an appropriate balance between equity and economic efficiency.

5. The cost benefit assessment of the viable options found that:

• Regulatory Option A (government guidelines) would entail minimum costs, but also minimum benefits. This Option is unlikely to adequately address the identified problems

• Regulatory Option B (the proposed regulations) would entail higher costs and benefits than Option A and would adequately address the identified problems;

• Regulatory Option C (ban whale swim tours) would entail higher costs to tourism operators and their customers than Options A or B, but would not be justified by the benefits;

• Regulatory Option D (requiring permits for seal swim tours) would also entail higher costs to tourism operators and their customers than Options A or B, but would not be justified by the benefits;

6. A weighted decision criteria analysis found that Regulatory Option B (the proposed regulations) provides the optimum combination of costs and benefits, in terms of the above evaluation criteria, compared to the other viable options.

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7. Similarly Fees Option 2 (partial cost recovery with a ‘public benefit discount’ and excluding the costs of law enforcement) was found to be the optimum and most equitable option for the fees.

8. The proposed regulations are expected to impose minor quantifiable costs on tour operators, together with unquantifiable costs on tour operators, marine recreationalists, taxpayers and the general public. They are expected to confer net benefits in terms of minimising risks to the conservation and protection of marine mammals and to public safety. The distribution of costs and benefits is not inequitable.

9. All businesses engaged in marine mammal tourism would be equally affected by the same regulatory environment. The costs imposed would constitute only a small fraction of the annual turnover of each business. Consequently, the proposed regulations would not constitute a barrier to entry in any markets where businesses are involved in marine mammal tourism. The proposed regulations are therefore unlikely to restrict competition.

10. Key stakeholders have been consulted on the proposed regulations, as listed in Part 1.7 of this RIS. These stakeholders include the tourism industry and other industries affected, marine mammal researchers and relevant government agencies.

11. At this stage, there are no known significant objections to the proposed regulations, although there has been no external consultation as yet on the specific levels of the proposed fee structure.

12. In summary, the RIS concludes that the proposed regulations:

• are expected to impose costs on tour operators, marine recreationalists, taxpayers and the general public;

• are expected to confer benefits in terms of minimising risks to the conservation and protection of marine mammals and to public safety;

• are expected to confer net benefits compared to the base case;

• are not inequitable in terms of the distribution of costs and benefits; and

• do not restrict competition.

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Glossary of terms and acronyms

Act, the: the Wildlife Act 1975.

aircraft: means any machine or equipment that is designed to be flown by a person who has control over its speed and direction of movement, but does not include a hovercraft.

administrative burden:

also known as ‘red tape’, is the cost incurred by business and not-for-profit organisations in demonstrating compliance with government regulation.

allocative efficiency:

a level of output produced such that resources are allocated to their highest uses and the marginal benefits of production for society are equal to the marginal costs imposed on society.

ANG: The Australian National Guidelines for Whale and Dolphin Watching 2005

approach: movement toward a whale closer than the regulated minimum distance.

authorised officer:

means a person appointed as an ��Hauthorised officer under the ��HConservation, Forests and Lands Act 1987 for the purposes of the Act.

breeding colony: a site on land where seals mate, give birth and raise pups.

calf: means a young whale or dolphin that is less than half the length of an adult female whale or dolphin of the same species.

Cetacean: A marine mammal belonging to the Order Cetacea, which includes all whales, dolphins and porpoises.

competition: the process of rivalry between independent firms or individuals in business. Competition occurs within a market.

common good: a good that is non-excludable but rival. In other words, everybody has a right of access to common goods, but there is some competition for their use.

compliance: means the state of conformity with the law. Compliance can be achieved through various means including enforcement, incentives and education.

cost recovery: the recuperation of the costs of government-provided or funded products or services that, at least in part, provide private benefits to individuals, entities or groups, or reflect the costs their actions impose.

cross-subsidisation:

where one group of users pays more than the costs of the goods or services that they receive, and the ‘surplus’ is used to offset the cost of goods/services provided to other users.

82

dolphin: means any wildlife that is a member of the family Delphinidae of the sub-order Odontoceti of the Order Cetacea, excluding members of the sub-family Globicephalinae (small toothed whales).

DSE: Department of Sustainability and Environment

economic efficiency:

when an output of goods and services is produced making the most efficient use of scarce resources and when that output best meets the needs and wants of consumers and is priced at a price that fairly reflects the value of resources used up in production.

enforcement: activities are designed to compel compliance (see above), including issuing warnings, infringement notices and prosecutions.

environmental sustainability:

long-term maintenance of ecosystem components and functions for future generations.

equity:

in general, the term ‘equity’ reflects concepts of fairness or justice. In a public finance context, ‘horizontal equity’ refers to treating people in similar situations in similar ways. ‘Vertical equity’ refers to those with greater means contributing proportionately more than those with lesser means.

existing regulations:

the Wildlife (Whales) Regulations 1998

externality: the cost or benefit related to a good or service that accrues to persons other than the buyer or the seller of that good or service.

fee: a charge levied in order to recover some or all of the cost of providing a specific service (as opposed to a tax).

government failure:

unnecessary or inappropriate intervention in markets by governments.

haul-out site: a site on land or a man-made structure where seals haul themselves out of the water to temporarily rest and congregate, as opposed to a breeding colony site.

market: an area of close competition between firms, or the field of rivalry in which firms operate.

market failure: the situation which occurs when freely functioning markets, operating without government intervention, fail to deliver an efficient or optimal allocation of resources.

mermaid line: means a line with floats attached that is connected to a tour vessel.

natal philopatry: where animals tend to remain in the population and area in which they were born.

NCP: National Competition Policy.

negative externality:

negative externalities occur when production and/or consumption impose external costs on third parties outside of the market for which no appropriate compensation is paid

83

pod: A co-ordinated group of cetaceans, usually a breeding unit.

population: Group of animals from the same species that is isolated from other such groups and interbreeds.

prescribed: means specified by regulations made under an Act.

public good:

a good or service that is non-excludable and non-rival. Although a public good is not diminished by other users, it will not be produced in private markets because there is no way for the producer to keep those who do not pay for the good or service from using it.

public safety

the protection of the ��Hsafety of the ��Hgeneral public from dangers caused by others or by natural events, including the prevention of such dangers; as opposed to the protection of individuals from their own actions.

pup: means a seal that is not more than half the length of an adult female of the same species.

regulatory burden:

the cost incurred by business and not-for-profit organisations in complying with government regulation

restriction of competition:

something that prevents firms in a market or potential entrants to a market from undertaking the process of economic rivalry.

rival goods: goods whose consumption by one consumer prevents simultaneous consumption by other consumers.

RIS: Regulatory Impact Statement.

seal: means any wildlife that is a member of the family Otariidae or the family Phocidae.

stakeholder: an individual or group that has a vested interest in, or may be affected by, a project or process.

swimming: includes snorkelling or diving, and includes the use of surfboards and small personal buoyant devices less than 2 metres in length.

tax: an impost to raise general government revenue (as opposed to a fee).

whale: whale means any member of the sub-order Mysteceti or the sub-order Odontoceti of the order Cetacea.

whale swim tour: means an activity conducted for profit that involves one or more persons being in water to observe or swim with one or more whales.

whale watching tour:

means an activity conducted for profit that involves causing a vessel or aircraft to approach one or more whales at a distance, that is less than the prescribed minimum distance for the kind of aircraft or vessel, for the purpose of enabling persons on the vessel or aircraft to observe the whale or whales.

wildlife: means indigenous vertebrate animals, declared game species, and terrestrial invertebrate animals listed under the ��HFlora and Fauna Guarantee Act 1988, including hybrids.

84

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Appendices

1. Estimation of costs (quantifiable and unquantifiable) of the proposed regulations (Option B)– excluding cost of fees

2. Estimation of benefits (quantifiable and unquantifiable) of the proposed regulations (Option B)– excluding consideration of fees

3. Estimation of quantifiable costs of Option C – excluding cost of fees

4. Calculation of prescribed marine mammal tour permit fees under Options 1, 2 (the proposed fees) and 3

5. Estimated costs of fees Options 1, 2 and 3 including the cost of the proposed fees under regulatory Options B, C and D

6. Comparison of proposed regulations with other jurisdictions

7. Comparison of proposed regulations with existing regulations

8. Draft regulations

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Appendix 1 – Estimation of costs (quantifiable and unquantifiable) of the proposed regulations (Option B) – excluding cost of fees

The purpose of Appendix 1 is to estimate the costs of the proposed regulations (Option B), excluding the costs of fees (i.e. non-fee costs). All incremental costs are compared to the ‘base case’ (i.e. no regulations) and only quantifiable components are discussed in detail. The later part of Appendix 1 summarises the unquantifiable costs of Option B.

A1.1 Quantifiable incremental costs of the proposed regulations Option B excluding the cost of fees (including basis of cost estimates)

The estimation of quantifiable costs is undertaken using certain assumptions where necessary (e.g. where complete data is not available). Such assumptions are derived from discussions with DSE based on the most likely circumstances behind each of the affected regulations.

A1.1.1 Cost to whale watching (tour vessel), whale swim and whale watching (aerial) tour permit holders – proposed regulations 16(15), 17(20) and 15(5), respectively in preparing and submitting monthly returns in forms provided by the Secretary

The cost of proposed regulations 16(15), 17(20) and 15(5) which requires whale watching (tour vessel), whale swim and whale watching (aerial) tour permit holders, respectively, to prepare and submit monthly returns assumes:

(a) that this work is mainly clerical in nature; and (b) that the typical annual clerical salary (non-managerial adult male) – which for 2005/06 is

given as $53,700��F

211.

Other assumptions made include: the number of weeks worked per annum (i.e. 44); the number hours worked on average per week (i.e. 38��F

212); the on-cost multiplier (i.e. 1.165��F

213) covering salary related cost such as superannuation, payroll tax and leave entitlements; and the overhead cost multiplier (i.e. 1.5��F

214) covering indirect costs such as IT, accommodation, computers and vehicle expenses. The formula given to calculate the hourly cost of monthly returns in 2005/06 is given as:

Hourly cost = [$53,700/(44 x 38)] x 1.165 x 1.5 = $56.13

The annual salary in 2005/06 is incremented by 4.33% per annum reflecting the average annual increase in weekly earnings between 1995/96 to 2005/06 of 4.33%.��F

215 It is acknowledged that in the current economic climate, wage growth of 4.33% per annum over the next year is unlikely. Nevertheless it is assumed that this will be indicative of the ‘average’ growth rate in wages over the next 10 years. Table A1.1 shows the relevant annual salary and associated hourly clerical cost for the next 10 years.

211 ABS, May 2006, Employee Earnings and Hours, Australia, Cat. No. 6306.0 . 212 Victorian Competition and Efficiency Commission 2006, (Draft) Guidance Note: Suggested default methodology and values for staff time in BIA/RIS analysis, October. 213 Victorian Competition and Efficiency Commission 2006, (Draft) Guidance Note: Suggested default methodology and values for staff time in BIA/RIS analysis, October. 214 Victorian Competition and Efficiency Commission 2006, (Draft) Guidance Note: Suggested default methodology and values for staff time in BIA/RIS analysis, October. 215ABS, May 2006, Average Weekly Earnings, Australia, (Table 1. Average Weekly Earnings, Australia (Dollars) – Trend), Cat. No. 6302.0.

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Table A1.1 – Estimated hourly clerical cost 2009/10 to 2018/19

Year

Annual salary (clerical) (a)

Hourly clerical cost (b) = [(a)/(44 x 38)] x 1.165

x 1.5 2009/10 $63,623.03 $66.50 2010/11 $66,377.91 $69.38 2011/12 $69,252.07 $72.38 2012/13 $72,250.69 $75.51 2013/14 $75,379.14 $78.78 2014/15 $78,643.06 $82.19 2015/16 $82,048.30 $85.75 2016/17 $85,600.99 $89.47 2017/18 $89,307.52 $93.34 2018/19 $93,174.53 $97.38

Another assumption is that whale swimming tours will operate between October and April (7 months) with a maximum ‘average’ of 0.684 trips per day. This fractional number takes into account that during a season there are days with no trips due to events such as bad weather etc. Furthermore, it is assumed that the current limit of 4 permit holders will continue to operate whale swim tours; a maximum of 10 permit holders will operate whale watching (tour vessel) tours; and a maximum of 6 permit holders will operated whale watching (aerial) tours, exclusively.��F

216 Specific information required in monthly returns includes:

• the name of the tour supervisor on that tour; and

• the number of persons, other than employees, on the tour vessel during that tour; and

• the number of persons, other than employees, on that tour who participated in a whale swim during that tour; and

• the date and time of day the whale watching tour commenced and finished; and

• the time of day that each whale swim was commenced and finished; and

• the time of day for each time that the tour vessel entered and left the caution zone; and

• the location of whales sighted; and

• the location of the whale swim; and

• the species and number of whales sighted; and

• the behaviour of the whales sighted, whether travelling, milling, socialising or feeding; and

• any other information required by the Secretary.

Note that for a whale watching (aerial) tour, the only information required in monthly returns would be the location of whale sightings and the number of marine mammals at the sighting.

216 Refer to the insert on ‘Whale Watching Tours’ in Part 3.1 of this RIS for a discussion on the uncertainty about these estimates.

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Estimated cost of proposed regulation 17(20) to whale swim tour permit holders

It is assumed that for each trip 10 minutes is required to fill in the relevant form, as provided by the Secretary. This is the minimum estimated time taken by clerical workers to submit monthly returns to DSE.��F

217 Furthermore, the number of trips over 7 months undertaken by all whale swim permit holders is estimated to be 580��F

218 per annum:

212 days/annum��F

219 x 4��F

220 permit holders x 0.684��F

221 trips per day = 580 trips/annum

Therefore the total hours required for all 4 swim tour permit holders over the 7 month period to submit monthly returns is estimated to be 580 trips x 10min = 96.67hrs or 24.17hrs per permit holder.

Table A1.2(a) shows the cost to authorised whale swim tour operators under proposed regulation 17(20) over the next 10 years, which would equal $66,648.89 in present value 2009/10 dollars��F

222.

Table A1.2(a) – Estimated incremental 10 year cost of providing monthly returns for whale swim tour permit holders – proposed regulation 17(20) in 2009/10 dollars

Year Cost of monthly returns (c) = (b)*96.67hrs/annum

2009/10 $6,427.89 2010/11 $6,706.22 2011/12 $6,996.60 2012/13 $7,299.56 2013/14 $7,615.63 2014/15 $7,945.38 2015/16 $8,289.42 2016/17 $8,648.35 2017/18 $9,022.82 2018/19 $9,413.51 Total 10 year cost $78,365.38 Net present value of 10 year total cost $66,648.89

Estimated cost of proposed regulation 16(15) to whale watching (tour vessel) tour permit holders

It is estimated that each whale watching (tour vessel) tour permit holder would undertake 100 trips per annum on average. Therefore, the total hours required for an estimated maximum of 10 whale watching (tour vessel) tour permit holders to submit monthly returns, is estimated to be up to a maximum of 1,000 trips x 10min = 166.67hrs or 16.67hrs per permit holder.

217 This figure was determined after consultation with all existing permit holders. There was some variation in estimates provided by the permit holders, as some operators would include a lot more information than was required in the returns. The 10 minute figure represents the average length of time taken to complete the minimum required data for the return. 218 Based on 2008/09 statistics. 219 212 days = [(31 days x 4 months) + (30 days x 2months) + (28 days x 1)]. 220 Precise figure. 221 This is the number of trips per day ‘on average’ taking into account days with no trips due to bad weather etc and this is the number that would be required to generate a figure of 580 trips per annum. 222 A real discount rate of 3.5% is used for present value calculations.

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Table A1.2(b) shows the maximum cost to authorised whale watching (tour vessel) tour permit holders under proposed regulation 16(15) over the next 10 years, which would equal $114,911.88 in present value 2009/10 dollars��F

223.

Table A1.2(b) – Estimated maximum incremental 10 year cost of providing monthly returns for whale watching (tour vessel) tour permit holders – proposed regulation 16(15) in 2009/10 dollars

Year Cost of monthly returns (c) = (b)*166.67hrs/annum


Estimated cost of proposed regulation 15(5) to whale watching (aerial) tour permit holders

It is estimated that whale watching (aerial) tour permit holders would undertake 3000��F

224 trips per annum on average. Therefore, the total hours required for a maximum of 6 whale watching (aerial) tour permit holders to submit monthly returns, is estimated to be up to a maximum of 3,000 trips x 2min��F

225 = 100hrs or 16.67hrs per permit holder.

Table A1.2(c) – Estimated maximum incremental 10 year cost of providing monthly returns for all whale watching (aerial) tour permit holders – proposed regulation 15(5) in 2009/10 dollars

Year Cost of monthly returns (c) = (b)*100hrs/annum


223 A real discount rate of 3.5% is used for present value calculations. 224 See Table A2.5 of Appendix 2 of this RIS. 225 Only location and number of whales sighted are required on monthly returns.

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Table A1.2(c) shows the maximum cost to all authorised whale watching (aerial) tour permit holders under proposed regulation 15(5) over the next 10 years, which would equal $68,947.13 in present value 2009/10 dollars��F

226.

A1.1.2 Estimated cost of proposed regulations 15(3), 16(3) and 19(3) (Option B)

Under proposed regulations 15(3), 16(3) and 19(3) for whale watching (aerial) whale watching (tour vessel) and swimming and seal watching, respectively, the conditions of the permit must be made clearly visible and posted on signs. The cost of each sign is estimated to be around $10 including lamination and printing in 2009/10. Assuming that there would be 30 permit holders and that signs would need to be replaced due to wear and tear at least once during the life of the proposed regulations, this would result in 60 signs. The cost would equal $10 x 30 signs or $300 in 2009/10 incurred in the first year of the proposed regulations. In the fifth year of the regulations (2014/15) the cost would be equal to $11.60��F

227 x 30 signs or $347.78 (i.e. $292.82 in 2009/10 present value dollars). The total 10 year cost in 2009/10 dollars would therefore be equal to $300 + $292.82 = $592.82. However, DSE may produce these signs, shifting the burden of cost to the general taxpaying community.

A1.2 Unquantifiable incremental costs of the proposed regulations (Option B) excluding fees

A1.2.1 Unquantifiable cost to marine water users with respect to complying with minimum distance for whales and dolphins – proposed regulation 6(1)(a)(c)(d)(e)(f) and (g)

Proposed regulation 6(1)(a)(c)(d)(e) and (g) would generate a minor cost to general marine water users (such as recreational fishers, but not whale or dolphin watching tours) from the inconvenience of having to comply with minimum distances (e.g. recreational fishers). However the extent of this inconvenience remains unknown and therefore this cost is unquantifiable.

A1.2.2 Unquantifiable cost to concerned citizens with respect to complying with minimum distance in the case of a whales that are stranded or entangled – proposed regulation 6(2)

Proposed regulation 6(2) would result in a minor ‘emotional’ cost to concerned citizens from not being able to immediately assist stranded or entangled whales and dolphins.��F

228 However given that the extent of ‘emotional’ cost per citizen or the number of concerned citizens that would be present at such an event are both unknown, this cost remains unquantifiable. Moreover this cost would only be incurred for the duration of time that it takes for an authorised officer or vet to physically attend a whale or dolphin stranding or entanglement after being notified (2-3 hrs) or by the duration of time that it takes to receive directions from an authorised officer or vet by phone or radio (see proposed regulation 11(2)(c)).

226 A real discount rate of 3.5% is used for present value calculations. 227 Equal to $10 and incremented by 3% per annum (which is the assumed average rate of inflation in this RIS). 228 Strandings and entanglements are extremely rare in Victoria. Since the year 2000 there have been approximately 2-4 incidents per year involving live animals, often in relatively inaccessible locations (see Part 2.1.1 of this RIS for estimates of the number of stranded and entangled whales and dolphins).

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A1.2.3 Unquantifiable cost to marine water users with respect to complying with minimum distances for seals – proposed regulations 7(1) and 7(3) to 7(6).

Proposed regulation 7(1) and 7(3) to 7(6) would generate a minor cost to general marine water users (e.g. recreational fishers,��F

229 water sports-person etc, apart from licensed seal tours) from the inconvenience of having to comply with minimum distances.

The proposed regulations will impose some restrictions on recreational fishers - they will have to avoid seals at seal colonies, particularly in the breeding season. However this should involve only a minor inconvenience to recreational fishers, as: (i) the areas involved would be very small; (ii) such locations around seal breeding colonies are generally not popular with recreational fishers, who tend to avoid seals, and (iii) there would be numerous alternative fishing locations nearby. Also, ensuring that fishing is kept away from seal breeding colonies should reduce potential conflict between seals and fishers. Also note that this is very different to the sort of restrictions that a marine national park would impose, as the minimum distances only apply when seals are present. Where seals are not present there would be no restriction on fishing, even in areas that seals could potentially breed.

However the extent of this inconvenience remains unknown and therefore this cost is unquantifiable.

Moreover the aforementioned costs are mitigated by proposed regulation 7(9) which exempts a person where it is necessary to use less than the minimum approach distance in order to avoid damage to person or property, launch or retrieve a vessel, or comply with navigation regulations. The overall cost is further mitigated by proposed regulation 7(8) which exempts a person when acting in accordance with a permit or authorisation issued under the Act.

A1.2.4 Unquantifiable cost to aircraft operators (not whale-watching tours) with respect to complying with restrictions of operating aircraft in the vicinity of marine mammals proposed regulations 6(1)(b), 7(7),8(1),8(2) and 8(3)

Proposed regulation 6(1)(b), 7(7), 8(1),8(2) and 8(3) would generate a minor cost to general aircraft users (not whale watching tours) from the inconvenience of having to obey minimum distances (e.g. non-tour recreational aircraft). However the extent of this inconvenience remains unknown and therefore this cost is unquantifiable. Furthermore, the overall cost is further mitigated by proposed regulation 8(4) which exempts a person when it is necessary to operate the aircraft, helicopter or gyrocopter in order to:

– avoid damage or prevent further damage to person or property; or

– enable the person to allow the aircraft to takeoff or land; or

– comply with an Act or regulations relating to the operation of aircraft.

A1.2.5 Unquantifiable cost to vessel operators in complying with restrictions under proposed regulations 9(1) and 9(2)

Proposed regulations 9(1) and 9(2) would result in minor time and inconvenience costs to persons operating vessels within the caution zone��F

230 of a marine mammal. Given that the extent of time and inconvenience and the likelihood of vessels operating in caution zones is unknown this cost remains unquantifiable.

229 Fishermen with commercial licences tending to fishing gear would be exempt from proposed regulation 7(1) and 7(3) to 7(6) under proposed regulation 7(8). 230 A caution zone is defined in the proposed regulations as a radius of 150 metres for dolphins; 300 metres for whales and 50 metres for seals.

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A1.2.6 Unquantifiable cost to vessel operators in complying with restrictions on entering Logan’s Beach Exclusion Zone under proposed regulation 14(1) in conjunction with regulation 14(2)(a) and (b)

Proposed regulation 14(1) would impose a minor inconvenience cost to vessel operators generally, and, more specifically, a minor cost in terms of foregone fishing resources for recreational and some commercial fisherman��F

231 and foregone revenue for tour operators – in not being able to enter the Logan’s Beach Exclusion Zone during 1 June to 31 October. The following formulas are used to estimate the annual revenue foregone from boat-based whale-watching tours for a previous tour operator who would have operated at Logan’s Beach��F

232 in 2000 (without any regulations at Logan’s Beach) assuming that the operator:

• was licensed to carry twelve passengers; • would have operated either 12 weeks (July to September) or 16 weeks (July to October); • catered for an average of 8 trips per week; • catered for 6 adult passengers per trip; and • charged an average cost per trip of $56 per Adult��F

233.

Estimated foregone revenue: 12-week season = 12 weeks x 8 trips x 6 adults x $56 = $32,256

Estimated foregone revenue: 16-week season = 16 weeks x 8 trips x 6 adults x $56 = $43,008

However, given that the extent to which other vessels would otherwise enter this zone during the specified times is unknown (including recreational plus ‘some’ commercial fishing and any ‘additional new’ tour vessels), this cost remains unquantifiable. Moreover, this cost would be offset by exemptions made to authorised officers and employees of DSE under proposed regulation 14(2)(a); or to persons granted a permit in accordance with section 78(1)(c),(d),(e) or (f) of the Act (with a minor application fee) under proposed regulation 14(2)(b).

A1.2.7 Unquantifiable cost to aircraft-based whale watching tour permit holders in complying with conditions of marine mammal permits under proposed regulations 15(2), 15(4) and 15(10)(a) (b) and (c)

Under proposed regulations 15(2) and 15(4) a tour permit holder would be required to comply with the following permit conditions and would incur additional minor costs in terms of ensuring that:

• there is a clear educational message to promote an understanding of the ecology and conservation of wildlife; and

• all reasonable steps are taken to prevent breach of regulations by persons on the aircraft.

This is expected to affect an estimated 6 permit holders in total (see Table A4.1 of Appendix 4 in this RIS). However some of these costs (e.g. providing educational messages on wildlife ecology and conservation) could be avoided. Passengers could be briefed on the tour whilst the aircraft is en route to the viewing area at no additional cost.��F

234 Leaflets and/or videos could also be used with minimal additional ‘voluntary’ cost. The required educational

231 Professional fishermen already stay out of the area under a voluntary Code of Practice (see Natural Resources and Environment (2000) Wildlife (Whales) (Logans Beach) Regulations 2000, Regulatory Impact Statement, Natural Resources and Environment, Victoria). 232 See Natural Resources and Environment (2000) Wildlife (Whales) (Logans Beach) Regulations 2000, Regulatory Impact Statement, Natural Resources and Environment, Victoria. 233 Based on average of current adult prices for 2009 of $65, $55 and $49. 234 This would be part of the overall tour briefing at no additional time cost.

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information is easily accessible to tour operators free of charge. The key educational material appears in DSE produced brochures on whales, dolphins and seals (this information is produced and distributed as part of the general business of the Wildlife Management unit, and is independent of the regulatory process). The key material is also presented in the Background section of this RIS, which would be distributed free of charge to all potential tour permit holders.

Under proposed regulation 15(10)(a)(b) and (c) aircraft based whale watching tour permit holders would be required comply with the following restrictions and incur additional minor costs of ensuring that the aircraft:

• does not fly lower than 300 metres within a 300 metre radius of a marine mammal; and • does not hover within a 300 metre radius over the vicinity of a marine mammal, if

operating a helicopter or gyrocopter.

This is expected to affect up to approximately 6 permit holders. Proposed regulation 15(10)(a)(b) and (c) would result in a potentially major short-term cost to tour operators in revenue foregone from the inability to closely approach whales and dolphins via aircraft (including helicopters and gyrocopters). That is, this applies to aerial tours conducted exclusively for the purpose of observing marine mammals. This cost would be offset against an increase in patronage from customers who may disapprove of unrestricted whale-watching on animal welfare grounds and who would not otherwise participate in such activities, and by the long-term viability of the whale watching (aerial) industry. In the short term an increase in tour customer numbers may be foregone as a result of additional restrictions in terms of minimum heights��F

235, method of approach or landing on water. Given that the number of additional customers foregone is unknown this cost remains unquantifiable.

Proposed regulations 15(10)(a)(b) and (c) would also result in a minor cost to a particular ‘proportion’ of aerial tour customers (which is unknown) in not being able to approach whales and dolphins as closely as they would like. This would be offset against customers who may disapprove and not participate (also unknown) and by lowering customer expectations before embarking on a tour (the impact of which is unknown). Therefore, this cost remains unquantifiable.

A1.2.8 Unquantifiable cost to whale watching and whale swim tour permit holders��F

236 in complying with the conditions under proposed regulations 16(4) to 16(13).

Under proposed regulations 16(4) to 16(13) a tour permit holder would be required to comply with the following permit conditions and incur additional minor costs in terms of ensuring that:

• there is a clear educational message to promote an understanding of the ecology and conservation of wildlife and that all passengers are advised verbally of the requirements of the proposed regulations;

• all passengers are under the direct supervision of the tour supervisor at all times whilst on board the vessel and all reasonable steps are taken to prevent breach of regulations by persons on the vessel;

• a motorised diving or swimming aid is not used within the caution zone (except in an emergency where human safety is at risk); and

235 Base case restrictions are set by the civil aviation authority. 236 The regulations for whale watching tour permit holders also apply to whale swim tour permit holders.

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• in the caution zone the tour vessel; approaches the zone in a signalled way as specified by the permit; does not exceed 5 knots; avoids sudden changes in speed or direction; and is manoeuvred outside the caution zone if there are signs of disturbance to the marine mammal.

This is expected to affect an estimated 14 permit holders in total (10 whale watching (tour vessel) permit holders and 4 whale swim permit holders – see Table A4.1 of Appendix 4 in this RIS). However some of these costs (e.g. providing educational messages on wildlife ecology and conservation; and verbally advising passengers of regulatory requirements) could be avoided. Passengers could be briefed at sea whilst the vessel is en route to the viewing area at no additional cost.��F

237 Leaflets and/or videos could also be used with minimal additional ‘voluntary’ cost. Again, the required educational information is easily accessible to tour operators free of charge and distributed as part of the general business of the Wildlife Management unit.

With regards to the operation of the vessel itself, the additional cost of constraining speed, altering manoeuvres, changing direction and prohibiting motorised diving and swimming aids, remains unquantifiable. This is because the extent and the likelihood of inconvenience to tour operators and/or passengers are both unknown.

Under proposed regulations 16(10) to 16(14) whale watching and whale swim tour permit holders would be required to comply with the following restrictions and incur additional minor costs of ensuring that the tour vessel:

• does not approach to within a distance of 50 metres of a dolphin and 100 metres of any other whale at any time, except in narrow waterways where the vessel must not approach within 25m of a whale;

• does not remain within the caution zone of a whale for more than a cumulative total of 60 minutes per tour, up to a maximum of 120 minutes per day;

• does not approach a whale within a distance of 200 metres in the Ticonderoga Bay Sanctuary Zone; and

• immediately withdraws to the prescribed minimum distance for a whale when a calf is detected.

These proposed regulations, expected to affect a maximum of 14 permit holders��F

238, would generate a potentially major short-term cost to tour operators in revenue foregone from an inability to closely approach whales and dolphins, offset against those customers who may disapprove and not participate and the long-term viability of the whale watching (tour vessel) industry. As estimated in Part A2.4.2 of Appendix 2 in this RIS, the total annual revenue generated by whale watching tour operators alone is estimated to be $2,419,200.00��F

239= 20,000 passengers (viewing only) x $56 + 11,600 passengers (swimming) x $112. As the number of additional passengers foregone (those who would disapprove and not participate anyway) is unknown, this cost remains unquantifiable.

Proposed regulation 16(10) to 16(14) would also result in a minor cost to a particular proportion of tour customers (which is unknown) in not being able to approach whales and dolphins as closely as they would like, offset against customers who may disapprove and not

237 This would be part of the overall tour briefing at no additional time cost. 238 It is estimated that there will be 10 watching and 4 whale swim tour permits issued. 239 This estimate is larger than the annual level of direct expenditure given as $1,078,350 earlier in the RIS (see IFAW, The Growth of Whale Watching Tourism in Australia, 2004) however, it reflects 10 additional whale watching permits and approximately 1,000 additional trips per annum over the next 10 years under the proposed regulations.

98

participate (again which is unknown). This cost can be mitigated by lowering customer expectations before embarking on a tour, but the impact of lowering expectations on mitigating such a cost is also unknown. Therefore, this cost remains unquantifiable.

A1.2.9 Unquantifiable cost to whale swim tour permit holders in complying with the additional conditions under proposed regulations 17(1) to 17(18)

Under proposed regulations 17(1) to 17(18) whale swim tour permit holders would be required to comply with the following restrictions and incur additional minor costs of ensuring that:

• a whale swim is not conducted within 100 metres of the low water mark; not conducted more than once for each approach within the caution zone; and not conducted within the Ticonderoga Bay Sanctuary Zone;

• the tour vessel does not approach a whale closer than 100 metres more than five times each tour but in any event not more than ten times each day;

• (except in an emergency in which human lives are threatened) a mermaid line is placed in the water before any person enters the water from a tour vessel; passengers hold onto the mermaid line at all times while in the water; the tour permit holder or their employees remain within 10 metres of the mermaid line when in the water assisting a passenger taking part in a whale swim;

• the tour vessel is not repositioned during a whale swim; • swimmers are not towed during a whale swim; • no person on the tour vessel, enters the water at a distance of less than 30 metres from a

whale; • no more than 10 persons, including the tour operator and any of his or her employees,

participate in a whale swim at any one time; • a whale swim is not conducted if a calf is present; • if a calf is detected that all persons involved in the whale swim immediately reboard the

tour vessel and the tour vessel withdraws to the prescribed minimum distance for a whale; • any person who participates in a whale swim from that tour vessel does not use underwater

breathing equipment while in the water, other than a snorkel; and • when all persons who participate in a whale swim are back on board the tour vessel, the

tour vessel must immediately retrieve the mermaid line and withdraw to outside the caution zone.

This is expected to affect 4 permit holders��F

240. Furthermore, given that the degree of constraint and inconvenience of these conditions on tour permit holders is unpredictable, these costs remain unquantifiable.

A1.2.10 Unquantifiable cost to seal tour permit holders in complying with the additional conditions under proposed regulations 19(2) and 19(4) to 19(11)

Under proposed regulations 19(2) and (19)(4) to 19(6) a seal tour permit holder would be required to comply with the following permit conditions and incur additional minor costs in terms of ensuring that:

• there is a clear educational message to promote an understanding of the ecology and conservation of wildlife and that all passengers are advised verbally of the requirements of the proposed regulations;

240 There will be a limit of 4 whale swim tour permits issued at any one time. As it currently stands Port Phillip Bay is the only limited permit area that allows whale swims.

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• all passengers are under the direct supervision of the tour supervisor at all times whilst on board the vessel and all reasonable steps are taken to prevent breach of regulations by persons on the vessel;

This is expected to affect an estimated 10 permit holders in total (see Table A4.1 of Appendix 4 in this RIS). However some of these costs (e.g. providing educational messages on wildlife ecology and conservation; and verbally advising passengers of regulatory requirements) could be avoided. Passengers could be briefed at sea whilst the vessel is en route to the viewing area at no additional cost.��F

241 Leaflets and/or videos could also be used with minimal additional ‘voluntary’ cost. The required educational information is easily accessible to tour operators free of charge and distributed as part of the general business of the Wildlife Management unit.

Under proposed regulations 19(7) to 19(11) seal tour permit holders would be required to comply with the following restrictions and incur additional minor costs of ensuring that:

• the tour vessel does not approach to within a distance of 10 metres of a seal on land at any time, 10 metres of a seal at a significant breeding colony at any time, 50 m of a seal at a protected breeding colony in the breeding season (1st November to end of February), or 30m of a seal at a protected breeding colony outside the breeding season;

• within the minimum approach distance of a seal at a seal breeding colony the vessel does not exceed 5 knots; avoids sudden changes in speed or direction; and is manoeuvred outside the minimum approach distance at signs of disturbance to the marine mammal; and

• the tour vessel does not come between a mother seal and pup.

This is expected to affect up to approximately��F

242 10 permit holders. Proposed regulation 19(7) to 19(11) would generate a minor short-term cost to tour operators in revenue foregone from an inability to closely approach seals, offset against those customers who may disapprove and not participate and the risk to the long-term viability of the seal (tour vessel) industry (which is taken as being smaller than the whale watching (tour vessel) industry). As the number of additional passengers foregone (net of those who would disapprove and not participate anyway) is unknown, this cost remains unquantifiable.

Proposed regulation 19(7) to 19(11) would also result in a minor cost to a particular proportion of tour customers (which is unknown) in not being able to approach seals as closely as they would like, offset against customers who may disapprove and not participate (again which is unknown). This cost can be mitigated by lowering customer expectations before embarking on a tour however the impact of lowering expectations on mitigating such a cost is also unknown. Therefore, this cost remains unquantifiable.

241 This would be part of the overall tour briefing at no additional time cost. 242 It is not intended that there will be a limit on the number of seal tour permits.

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A1.3 Summary of all incremental and unquantifiable costs (excluding the cost of fees)

Finally, Table A1.3 summarises the incremental yet unquantifiable costs of proposed regulations under Option B – also excluding the cost of fees.

Table A1.3 – Summary of 10 year unquantifiable costs of Option B (proposed regulations excluding fees)

Proposed regulation

Proposed regulation description Nature of unquantifiable cost Reference to detailed

discussion

Reg.6(1)(a) to(g)

Prescribed minimum distance for whales and dolphins (inside and outside Ticonderoga Bay Sanctuary Zone) with respect to allowable/prohibited vessels and swimmers.

Minor cost to other general marine water users (e.g. recreational fishers) from the inconvenience of having to obey minimum distances. Part A1.2.1

Reg.6(2) Minimum distance requirements for stranded or entangled whales with respect to vessels/individuals.

Minor ‘emotional’ cost to concerned citizens from not being able to immediately assist stranded or entangled whales and dolphins.

Part A1.2.2

Reg.7(1) to 7(6) )

Prescribed minimum approach distance for seals��F

243 with respect to vessels, vehicles and swimmers.

Minor cost to general marine water users (e.g. recreational fishers) from the inconvenience of having to obey minimum distances

Part A1.2.3

Reg.6(1)(b), 7(7) 8(1), 8(2) and 8(3)

Restrictions regarding operating aircraft in the vicinity of marine mammals

Minor cost to other general aircraft users (not whale watching tours) from the inconvenience of having to obey minimum distances

Part A1.2.4

Reg.9(1)and 9(2)

Offences relating to persons operating vessels in the vicinity of marine mammals with respect to vessels in the caution zone��F

244 or vessels in the vicinity of other vessels conducting a whale or seal swim.

Minor time and inconvenience costs to persons operating vessels within the caution zone of a marine mammal including having to slow down. Part A1.2.5

Reg.14(1) and 14(2)(a) and (b)

Offence to enter Logan’s Beach Exclusion Zone with respect to vessels.

Minor inconvenience cost to vessel operators generally; minor cost in terms of foregone fishing resources for recreational and some commercial fisherman��F

245; and foregone revenue for tour operators (approximately $32k to $43k for a vessel)

Part A1.2.6

Reg. 15(2), 15(4), 15(10)(a)(b) and (c)

Conditions for holders of aircraft based whale watching tour permits.

Minor cost to 6 anticipated whale watching (aerial) tour permit holders in relation to meeting the conditions of the permit. Potentially major short-term cost to tour operators in revenue foregone from the inability to closely approach whales and dolphins via aircraft (including helicopters and gyrocopters). Costs are taken to apply to aerial tours conducted exclusively for the purpose of observing marine mammals.

Part A1.2.7

243 Including those at breeding colonies and those hauled out on a man-made, water-based structure (not land). 244 Caution zone is defined in the proposed regulations as a radius of 150 metres for dolphins; 300 metres for whales and 50 metres for seals. 245 Professional fishermen may already stay out of the area under the voluntary Code of Practice (see Natural Resources and Environment (2000) Wildlife (Whales) (Logans Beach) Regulations 2000, Regulatory Impact Statement, Natural Resources and Environment, Victoria).

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Proposed regulation

Proposed regulation description Nature of unquantifiable cost Reference to detailed

discussion

Reg.16(4) to 16(14)

Conditions for holders of whale watching and whale swim tour permits.

Minor cost to 14 whale watching (tour vessel)/swim tour permit holders in meeting the conditions of the permit. Potentially major short-term cost to tour operators in revenue foregone from inability to closely approach whales and dolphins. Minor cost to some tour customers in not being able to approach whales and dolphins as closely as they would like – and to other marine water users (e.g. commercial and recreational fishers) from the inconvenience of having to obey minimum distances.

Part A1.2.8

Reg. 17(1) to 17(18)

Additional conditions for holders of whale swim tour permits – including prohibition of operating a whale swim in Ticonderoga Bay Sanctuary Zone Reg. 17(4).

Minor costs to 4 whale swim tour permit holders in relation to permit conditions.

Part A1.2.9

Reg.19(2) and 19(4) to 19(11)

Conditions for holders of seal tour permits.

Minor costs to up to 10 anticipated seal tour permit holders in relation to meeting the conditions of the permit. Minor short-term cost to seal tour operators in revenue foregone from inability to closely approach seals. Minor cost to some tour customers in not being able to approach seals as closely as they would like – and to other marine water users (e.g. recreational fishers) from the inconvenience of having to obey minimum distances.

Part A1.2.10

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Appendix 2 – Estimation of quantifiable and unquantifiable benefits of proposed non-fee regulations (Option B)

A2.1 Benefit values

The proposed regulations contribute in an important way to maintaining and protecting the value of marine mammal resources in Victoria. That is to say, the proposed regulations are important in promoting not only the ‘private’/ ‘public’ non-consumptive��F

246 use-value for individuals enjoying marine mammal tours, but also ‘public’ non-use values of marine mammal resources, as summarised in Table A2.1. Only incremental benefits in regards to the ‘base case’ will be considered for the purposes of cost benefit analysis��F

247.

Table A2.1 - Use and non-use value of marine mammals resources

‘Private’ and ‘public’ use values ‘Public’ non-use values

Private use values:

o Gain to consumers of marine mammal watching/swimming activities in Victoria (i.e. leisure, entertainment and recreational opportunities); and

o Gain to providers of marine mammal watching/swimming activities (i.e. profits to tour operators).

Public use value:

o State and community education.

o Bequest to future generations accomplished by maintenance of Victoria’s marine resource/asset (bequest value);

o Value from continued existence of marine mammal species and biodiversity through conservation and protection activities including education (existence value); and

o Option to utilise a marine mammal species at a future circumstance (preservation/option value).��F

248

Public non-use values reflect the fact that many people who do not or have not interacted with marine mammals (via watching or swimming), would wish to see them preserved because they would want to maintain the option to enjoy such an experience in the future. In this sense they would be willing to pay some insurance premium to conserve and protect marine mammals (i.e. preservation/option value). Others who do not expect to interact with marine mammals themselves would be willing to pay something to conserve and protect them for their heirs (i.e. bequest value). Many people simply feel better for, and would be willing to pay something for, the continued existence of marine mammals (i.e. existence value).

A2.2 Unquantifiable incremental benefits of marine mammal protection and conservation due to the regulation of human interaction with marine mammals

The incremental benefits of the proposed regulations with respect to mitigating the risks to the conservation and protection of marine mammals accrue to both species and populations of marine mammals, on one hand, and individual animals, on the other.

246 In contrast to consumptive uses such as hunting or fishing. 247 Victoria wide multiplier effects of the marine mammal tourism industry are not considered as incremental benefits as such multipliers are the result of expenditure in the economy that would occur given the availability of any other substitute (e.g. penguin parade etc). 248 Bennett, J, October, 2003.

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A2.2.1 Conservation and protection of species and populations of marine mammals

The mitigation of risks, in general terms, to the conservation and protection of marine mammals is already part of the base case under existing legislation, as discussed in Part 4.2. However, the proposed regulations contribute to risk mitigation and provide incremental ‘public’ non-use benefits to the extent of: a) regulating human interactions with marine mammals; and b) requiring tour operators to provide an educational component in tour services.

The specific drivers of ‘public’ non-use value linked to the proposed regulations are discussed as follows:

• Marine mammal protection and conservation relating to human interactions would be promoted specifically by proposed regulations 8(1) to 19(11) (inclusive);

• Marine mammal protection and conservation dealing with human interactions at Logan’s Beach Exclusion Zone under proposed regulation 14(1), would ensure that:

whales are not disturbed by boats while in their calving grounds at Logans Beach. People will still be able to observe Southern Right Whales but in a manner which will not affect their survival. This is the most important consideration as Southern Right Whales are endangered in Victoria and Logans Beach is the only part of Victoria where they regularly come close to shore to calve.��F

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• Ensuring a clear educational message to promote an understanding of the ecology and conservation of marine wildlife would be promoted specifically by proposed regulations 15(2), 16(2) and 19(2).

Moreover, to the extent that proposed regulations 15(2), 16(2) and 19(2) requires tour operators to provide an educational message and to the extent that there are third party affects or positive externalities from such community education, then this can also be seen as providing a ‘public’ use benefit. A2.2.2 Measuring ‘public’ non-use values of conserving marine mammals There are a variety of techniques available to measure the ‘public’ non-use value of conserving marine mammal resources including surveys of peoples’ stated preferences and surveys of peoples’ behaviour (revealed preferences).

Stated preference methods include:

• Contingent Valuation Method (CVM) where respondents are asked what they would be willing to pay (WTP) for a specified public good if it were provided. Individuals are typically assigned a tax price (based on some hypothetical payment) and then asked to specify the quantity of the public good they want.

• Choice Modelling Method (CM) where respondents are presented with a number of options and asked to choose between them;

Revealed preference methods include:

• Market data/defensive expenditures: where the value of non-priced or subsidised final goods can be inferred from the prices paid for close substitutes; and

249 Natural Resources and Environment (2000) Wildlife (Whales) (Logans Beach) Regulations 2000, Regulatory Impact Statement, Natural Resources and Environment, Victoria, p. 9.

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• Hedonic price studies (HPS): where mammal protection and conservation owing to controlling human interactions with marine mammals, is broken down into a set of attributes or features (independent variables such as biodiversity).

Unfortunately there have not been any preference studies completed for marine mammals in Victoria. There have been two CVM studies conducted in other jurisdictions:

– A CVM study in the UK by Rosette and Pearce (2003) recommended valuing seal conservation at £4.65 per animal. In Australian December 2008 dollars, this would be equal to $13.92��F

250.

– Samples et al (1986) used CVM to obtain the non-use value of conserving humpback whales, sampling 240 random individuals. The average willingness to pay per person per annum was found to be between $42.84 (before viewing an educational film) and $57.06 (after viewing an educational film). In Australian December 2008 dollars, this would be equal to $156.49 and $208.43��F

251

These valuations, however, should be treated with caution as there are a number of known weaknesses with this approach. For example, asking people their WTP to maintain an element of biodiversity generates different results to those found when Willingness to Accept (WTA)��F

252 questions are asked where WTA significantly exceeding WTP��F

253. “Critics have claimed that this invalidates the CVM approach, showing responses to be expressions of what individuals would like to have happen rather than true valuations”��F

254. Finally, other weaknesses of WTP estimates obtained under stated preference methods include:

– ‘warm-glow’ biases (i.e. where respondents considered their WTP to be a form of charitable donation to a worthy cause); and

– ‘part-whole’ biases (i.e. where respondents considered their WTP to encapsulate not just marine mammal conservation but conservation of the environment as a whole).

A2.2.3 Protection of individual marine mammals

With respect to the protection of individual animals and their welfare, in general terms this is already catered for under Section 9 of the Prevention of Cruelty to Animals Act 1986 (see part 4.2) as discussed in the base case. However the proposed regulations and incremental benefits deal specifically with the risk of ‘human interactions’ on the health and safety of individual marine mammals. That is to say, the proposed regulations seek to protect the welfare of individual animals to the extent of human interactions with marine mammals only. The proposed regulations provide a more specific regulatory framework to protect marine mammals and provide guidance on acceptable human interactions with individual marine mammals. The specific proposed regulations aimed at providing additional risk mitigation to marine mammal welfare concerns include:

250 Exchange rate of £1 to $2.57961 AUS for 2003 and CPI index of 140.9 used for 2003 and 163.5 for 2008 (see ABS (Dec 2008) - Consumer Price Index, Australia, Cat. No. 6401.0). 251 Exchange rate of $1US to $1.66666 AUS for 1986 and CPI index of 74.6 used for 1986 and 163.5 for 2008 (see ABS (Dec 2008) - Consumer Price Index, Australia, Cat. No. 6401.0). 252 WTA is the stated price that an individual would accept in compensation for the loss or the diminution of biodiversity (see OECD (2007) Glossary of Statistical Terms). On the other hand, WTP is the maximum amount that a person would be willing to pay to maintain an element of biodiversity. 253 Department of the Environment and Heritage (2005), Making Economic Evaluation Work for Biodiversity Conservation, Biological Diversity Advisory Committee, Land and Water Australia, Canberra. 254 Ibid, 2005, p. 10.

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• 6(c) and (d) relating to prescribed minimum distances for whales inside the Ticonderoga Bay Sanctuary Zone to provide an effective safe refuge for whales while still allowing access to tour operators and a ban under proposed regulation 17(4) for whales swim tours;

• 8(2) relating to ceasing the operation of aircraft in the vicinity of marine mammals if a marine mammal shows reasonably perceivable signs of disturbance;

• 9(2) relating to the requirement to manoeuvre a vessel to outside the caution zone��F

255 if a marine mammal shows any reasonably perceivable sign of disturbance;

• 12(1)(a) and (b) relating to restrictions on noise in the vicinity of marine mammals;

• 13(1) relating to restrictions on dogs in the vicinity of marine mammals;

• 14(1) relating to restricting the entry of vessels in the Logan’s Beach Exclusion Zone at any time from 1 June to 31 October; and

• 19(10) relating to restrictions on seal tour vessels near seal breeding colonies as part of the condition of seal tour permits where seals show reasonably perceivable signs of disturbance.

Again, as with the benefits of conservation and protection, there are no available studies which measure the value of animal welfare benefits owing specifically to the regulation of human interaction with marine mammals.

A2.3 Unquantifiable incremental benefits to human safety from regulating human interaction with marine mammals

Whilst human safety is no less important than animal safety, in practice it is a less severe problem (in terms of probability of incidents occurring) and therefore requires less government intervention. The proposed regulations, by controlling human interaction with marine mammals, would provide unquantifiable incremental benefits in relation to human safety, in terms of minimising the risks to life and property, as discussed in Part 2.1.2 of this RIS.

A2.3.1 Unquantifiable benefits of regulating human interaction with whales

With regards to whales, minimum distance requirements under proposed regulations 9(1)(a)(b)(c); 9(2)(a)(b); and 9(3) would help to minimise the risk of collision of whales with whale watching/swimming tour boats and other vessels such as recreational fishing boats (both extent and likelihood of such a consequence). Incremental benefits remain unquantifiable as the likelihood of death and injury for the life of the regulations remains unknown and estimates for the value of a human life remain at best problematic and somewhat controversial��F

256. For a detailed discussion of human safety consequences relating to boat collisions with whales see Part 2.1.2 of this RIS. Other proposed regulations which would help minimise risk to human safety from collisions between large whales and swimmers or injuries from stranded or entangled whales include proposed regulations 6(1)(a)(b)(d)(e)(f)(g) (minimum distance requirements); 10(1), 10(2) and 10(3) (restriction on feeding); 11(1) and 11(2)(restriction on touching).

255 Caution zone is defined in the proposed regulations as a radius of 150 metres for dolphins; 300 metres for whales and 50 metres for seals. 256 The value of human life is typically based on the value of expected future earnings without consideration of the value of a life to friends, family and the community.

106

A2.3.2 Unquantifiable benefits of regulating human interaction with seals

Secondly, minimum seal distance requirements under proposed regulations 7(1) to 7(6) would help to minimise the risks of seal attacks on humans (mainly biting behaviour and the minor risk of seals diving onto swimmers). The nature of seals makes them particularly susceptible to humanisation. Subsequently, the restriction on feeding seals under proposed regulations 10(1), 10(2) and 10(3) would help to minimise aggression in seals where they continually approach people for food. This can cause seals to bite, a risk to humans which is exacerbated by the disease-carrying capacity of seals. Furthermore, this could lead to other issues such as damage to property (e.g. vehicles). For a detailed discussion of the human safety consequences of human interactions with seals see Part 2.1.2 of this RIS.

A2.3.3 Unquantifiable benefits of regulating human interaction with dolphins

Proposed regulation 6(1)(c)(i) (minimum distance requirements) would minimise risks to bites from dolphins, as would proposed regulations 10(1), 10(2) and 10(2) (restriction on feeding); and 11(1) and 11(2) (restriction on touching). However, given that the extent and probability of such incidents occurring remains unknown, these benefits remain unquantifiable.

A2.4 Quantifiable and Unquantifiable incremental benefits of helping to sustain the value of the marine mammal tourism industry by regulating human interaction with marine mammals

The incremental ‘private’ use value to the marine mammal tour industry can be classified into two groups: a) the benefit to tourists and b) the benefit to tour operators. The proposed regulations aimed at minimising risks to the sustainability of the marine mammal tourism industry include:

• 6(1) relating to minimum distances for whale;

• 8(1) and 8(2) relating to restrictions on operating aircraft in the vicinity of marine mammals;

• 9(1) relating to restrictions for persons operating vessels in the vicinity of marine mammals and requirements for persons operating vessels under proposed regulation 9(2);

• 14(1) relating to restricting the entry of vessels in the Logan’s Beach Exclusion Zone at any time from 1 June to 31 October. This regulation is significant in that it minimises the risk to land based whale watching tourism industry at Logan’s Beach:

‘The economic return from boat-based whale-watching tours is very small in comparison to that injected into the local community by tourists who come to Logans Beach to view the whales, the majority of whom view them from the land-based viewing platform. It is estimated that tourism involving whale-watching injects some $2.5 million into the local economy at a time of the year outside the summer months when tourist activity is at its greatest. There is the potential for boats in the vicinity of the whales while they are close to shore to disturb or harass the whales at a time of the year that is critical to their survival. In addition, the proposed regulations are likely to protect and enhance the land-based whale-watching industry by ensuring the long-term viability of Logans Beach as an important calving area, free from interference from humans’��F

257

• 15(1) to 15(10) relating to conditions for aircraft based whale watching tour permits;

257 Natural Resources and Environment (2000) Wildlife (Whales) (Logans Beach) Regulations 2000, Regulatory Impact Statement, Natural Resources and Environment, Victoria, p. 9.

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• 16(1) to 16(19) relating to conditions of whale watching tour permits and whale swim permits with additional conditions for whale swim tour permits under proposed regulations 17(1) to 17(21); and

• 19(1) to 19(11) relating to additional conditions of seal tour permits.

Negative third party effects of whale watching (tour vessel) tour activities such as herding disturbing and harassing whales (including dolphins) or separating mothers from calves has the potential to result in particular marine mammal species disappearing from Victoria’s coastland waters permanently. This would result in losses for both tourists and tour operators alike. The potential losses at stake are discussed in the next three sections.

A2.4.1 Estimate of ‘private’ recreational use-value to marine mammal watching tourists

The recreational value of the marine mammal tourism industry or ‘private’ use benefits to tourists are measured via the use of travel cost studies (TCS). With TCM, ‘private’ use values are measured by what people spend to travel to engage in marine mammal interactions in Victoria. Loomis et al (2000)��F

258 estimate the ‘use values’ or consumer surplus of whale watching activities in the United States to be between $43 and $50 per person per day (in 2000 US dollars). Leworthy and Wiley (2003)��F

259 have estimated ‘use’ values of whale��F

260 watching activities in the Channel Islands, California to be between $62.50 and $70.40 per person per day (in 2005 US dollars). Parsons et al (2003)��F

261 have estimated the value of whale watching activities in the West Coast of Scotland to be $92.50 (in 2005 US dollars). Using price indices and exchange rates to convert these aforementioned values to 2008 Australian dollars, the range of consumer surplus for whale watching activities would be between $90.57 and $134.04 per person per day (in December 2008 dollars) (see Table A2.2 below).

Table A2.2 - Consumer surplus estimates for whale watching activities in 2008 $AUS TCM Study Consumer

surplus $US Consumer

surplus $AUS

Consumer surplus $AUS

(Dec 2008 dollars) Loomis et al (2000) $43 to $50

(2000 dollars) $72.18 to $83.93 (2000 dollars)��F

262 $94.64 to $110.05��F

263

Leworthy and Wiley (2003)

$62.50 to $70.40 (2005 dollars)

$81.10 to $91.35 (2005 dollars)��F

264 $90.57 to $102.02��F

265

Parsons et al (2003) $92.50 (2005 dollars)

$120.03 (2005 dollars)��F

266 $134.04��F

267

It was estimated that there are around 118,000 land based visitors viewing whales.��F

268 The swim tour operators cater for another 11,600 passengers a year��F

269. Assuming that both

258 Cited in Moyle and Evans (2008). 259 Cited in Pendleton, L, H (2006). 260 Gray, blue, minke and humpback whales. 261 Cited in Pendleton, L, H (2006). 262 Exchange rate of $1US to $1.67861AUS for 2000. 263 CPI index of 124.7 used for 2000 and 163.5 for 2008 (see ABS (Dec 2008) - Consumer Price Index, Australia, Cat. No. 6401.0). 264 Exchange rate of $1US to $1.29757AUS for 2005. 265 CPI index of 146.4 used for 2005 and 163.5 for 2008 (see ABS (Dec 2008) - Consumer Price Index, Australia, Cat. No. 6401.0). 266 Exchange rate of $1US to $1.29757AUS for 2005. 267 CPI index of 146.4 used for 2005 and 163.5 for 2008 (see ABS (Dec 2008) - Consumer Price Index, Australia, Cat. No. 6401.0). 268 IFAW, The Growth of Whale Watching Tourism in Australia, 2004. 269 Data sourced from returns submitted to DSE by permit holders.

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groups had equal surplus relating to whale watching (whether in the water, air or not), this would bring the value of consumer surplus from this activity to between approximately $11.5m and $17m per annum in 2008 dollars (reflecting 127,000 visitor days). The estimated 10 year value of consumer surplus would equal up to between $120.9m and $178.9m or up to between $100.5m and $148.8m in 2009/10 present value dollars��F

270, as shown in Table A2.3.

Table A2.3 – 10- year consumer surplus from whale watching activities (‘private’ use value) estimate in 2009/10 present value dollars

Year Lower end range of consumer

surplus

Upper end range of

consumer surplus

Present value lower end range

of consumer surplus

Present value upper end range

of consumer surplus

2009/10 $12,090,095.18 $17,893,340.87 $11,681,251.38 $17,288,252.05 2010/11 $12,090,095.18 $17,893,340.87 $11,286,233.22 $16,703,625.17 2011/12 $12,090,095.18 $17,893,340.87 $10,904,573.16 $16,138,768.28 2012/13 $12,090,095.18 $17,893,340.87 $10,535,819.48 $15,593,012.83 2013/14 $12,090,095.18 $17,893,340.87 $10,179,535.73 $15,065,712.88 2014/15 $12,090,095.18 $17,893,340.87 $9,835,300.22 $14,556,244.33 2015/16 $12,090,095.18 $17,893,340.87 $9,502,705.53 $14,064,004.18 2016/17 $12,090,095.18 $17,893,340.87 $9,181,358.00 $13,588,409.84 2017/18 $12,090,095.18 $17,893,340.87 $8,870,877.29 $13,128,898.39 2018/19 $12,090,095.18 $17,893,340.87 $8,570,895.93 $12,684,925.98 Total $120,900,951.80 $178,933,408.70 $100,548,549.92 $148,811,853.92

This estimate does not include consumer surplus from seal watching/swimming activities. As discussed earlier in the RIS over 250,000 people participate in seal tourism activities in Victoria each year. According to a CVM study by Rosette and Pearce (2003), the WTP in relation to seal watching activities (i.e. recreational ‘private’ use value or consumer surplus), is estimated to be between £8 to £9, per person per day. In Australian December 2008 dollars this would be equivalent to between $23.95 and $26.94��F271. The normal biases for CVM studies are alleviated as the target sample was limited to actual seal tour participants and the estimates only reflect recreational value. Therefore, the results can be interpreted as being largely reflective of actual WTP.

Assuming that all had equal surplus relating to seal watching (whether in the water, or not), the estimated value of consumer surplus from this activity would be between approximately $6m and $6.1m per annum in 2008 dollars (reflecting 250,000 visitor days). The estimated 10 year value of consumer surplus��F

272 would be up to between $61.7m and $69.4m or up to between $51.3m and $57.7m in 2009/10 present value dollars��F

273, as shown in Table A2.4.

270 Discounting a dollar amount to obtain its 2009 present value acknowledges that a dollar today has more purchasing power and represents more value to a society than a dollar in 10 years time. 271 Exchange rate of £1 to $2.57961 AUS for 2003 and CPI index of 140.9 used for 2003 and 163.5 for 2008 (see ABS (Dec 2008) - Consumer Price Index, Australia, Cat. No. 6401.0). 272 Consumer surplus represents the gains from trade obtained by consumers in the market for marine mammal tour services. These gains to consumers are equal to the difference between the price paid for such services by consumers and the willingness to pay for such services as demonstrated by their demand. 273 Real discount rate of 3.5% is used.

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Table A2.4 – 10 – year consumer surplus from seal watching activities (‘private’ use value) estimate in 2009/10 present value dollars

Year Lower end range of

consumer surplus

Upper end range of

consumer surplus


of consumer surplus

Present value upper end range

of consumer surplus

2009/10 $6,166,348.08 $6,937,141.59 $5,957,824.23 $6,702,552.26

2010/11 $6,166,348.08 $6,937,141.59 $5,756,351.91 $6,475,895.90

2011/12 $6,166,348.08 $6,937,141.59 $5,561,692.67 $6,256,904.26

2012/13 $6,166,348.08 $6,937,141.59 $5,373,616.11 $6,045,318.12

2013/14 $6,166,348.08 $6,937,141.59 $5,191,899.62 $5,840,887.07

2014/15 $6,166,348.08 $6,937,141.59 $5,016,328.14 $5,643,369.15

2015/16 $6,166,348.08 $6,937,141.59 $4,846,693.85 $5,452,530.58

2016/17 $6,166,348.08 $6,937,141.59 $4,682,795.99 $5,268,145.49

2017/18 $6,166,348.08 $6,937,141.59 $4,524,440.57 $5,089,995.64

2018/19 $6,166,348.08 $6,937,141.59 $4,371,440.17 $4,917,870.19

Total $61,663,480.80 $69,371,415.90 $51,283,083.26 $57,693,468.67

Adding the consumer surpluses of whale and seal watching groups together, the estimated total ‘private’ recreational use value in relation to marine mammal tourism in Victoria promoted by the proposed regulations (Option B) would be up to between $151.8m and $206.5m over 10 years in present value 2009/10 dollars.

A2.4.2 The ‘private’ use-value of marine mammal tourism to tour operators

The value of marine mammal tourism to tour operators (the surplus earned by tour operators) represents the difference between revenues earned and costs of providing marine mammal tours. The revenue of whale watching/swim tour operators assumes an average of 1580��F

274 whale watching/swim trips per annum with an average of around 20��F

275 passengers, giving a total of (1580 x 20) or 31,600 passengers per annum. Of these it is estimated that 11,600 passengers are involved in whale swimming per annum��F

276. Furthermore, the typical adult price for whale watching is around $56��F

277 whilst the fee for swimming (including wet suit hire) is around $112��F

278. The total estimated revenue obtained by the whale watching (tour vessel) and swimming industry is given as approximately $2.4m per annum in 2009/10 dollars:

Total annual revenue =

20,000 passengers (viewing only) x $56 + 11,600 passengers (swimming) x $112 = $2,419,200.00��F

279

274 See Part A1.1.1 of Appendix 1 in this RIS for source of estimate (made up of 580 trips for whale swimming and 1,000 trips for whale watching (tour vessel). 275 Based on average capacities of 40, 30 and 16 passengers. 276 Data sourced from returns submitted to DSE by permit holders. 277 Based on average adult prices for 2009 of $65, $55 and $49. 278 Based on average adult prices for 2009 of $120, $110 and $105. 279 This estimate is larger than the annual level of direct expenditure given as $1,078,350 earlier in the RIS (see IFAW, The Growth of Whale Watching Tourism in Australia, 2004) however, it reflects 10

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As shown, in Table A2.5, the number of whale watching (aerial) tours and seal tours is estimated to be 3,000 and 1,000, respectively, with an average of 2.5 passengers per aerial tour and 10 passengers per seal tour. Also, the price of a whale watching (aerial) tour is assumed to be $200��F

280 and the price of a seal tour is given as $60.

Table A2.5 – Estimated annual revenue for marine mammal tour operators in 2009/10 dollars

Tours per annum

Passengers per tour

Total passengers per annum

Tour price per

passenger

Revenue per annum

Whale swim tours 580 20 11,600 $112 $1,299,200

Whale watching (tour vessel) 1000 20 20,000 $56 $1,120,000

Whale watching (aerial) 3000 2.5 7,500 $200 $1,500,000

Seal tours 1000 10 10,000 $60 $600,000

Total revenue $4,519,200

The total amount of revenue estimated for the entire marine mammal industry is estimated to be approximately $4.5m in 2009/10 dollars (see Table A2.5). However given that the costs of running the tour vessels or aircraft are unknown and commercially confidential, the amount of producer surplus remains unquantifiable.

A2.5 Summary

Incremental unquantifiable private use and public non-use benefits plus estimated private use benefits relating to consumer surplus, are summarised in Table A2.6.

Table A2.6 – 10-year summary of estimated incremental quantifiable and unquantifiable benefits of regulating human interaction with marine mammals – under the proposed regulations (Option B) in 2009/10 present value dollars

additional whale watching permits and approximately 1,000 additional trips per annum over the next 10 years under the proposed regulations. 280 Based on the typical price given a range of adult prices of $80 to $370.

Nature of incremental benefit Recipient of benefit

Estimated 10-year incremental benefit in 2009/10 dollars

Public non-use value (bequest, existence and option value from conserving and protecting marine mammal species and populations)

Victorian community

Not quantifiable due to concerns with estimation techniques

Public use value (community education) Victorian community Not quantifiable due to lack of data

Animal welfare benefit Individual animals Not quantifiable due to lack of data

Human safety benefit Individual people

Not quantifiable due to concerns with estimation technique for valuing human life

Private use-value (consumer surplus) Consumers of whale tours Up to between $100.5m and $148.8m

Private use-value (consumer surplus) Consumers of seal tours Up to between $51.3m and $57.7m

Private use-value (producer surplus) Tour operators Not quantifiable due to commercially sensitive data requirements

Total quantifiable benefit Victorian community Up to between $151.8m and $206.5m

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Appendix 3 – Estimation of quantifiable costs of Option C – excluding cost of fees

The purpose of Appendix 3 is to summarise incremental quantifiable costs of Option C – excluding costs of fees, in addition to those under the proposed regulations.

A3.1 Additional loss of tourist benefit under Option C (variation of Option B prohibiting whale swim tours)

Option C would result in a loss of consumer surplus with respect to those who would no longer be able to partake in whale swim activities. The swim tour operators cater for 11,600 (swimming) tourists a year��F

281. Assuming an estimated surplus per individual of between $90.57 and $134.04��F

282 this would bring the value of consumer surplus lost from this activity to between approximately $1.1m and $1.6m per annum in 2009 dollars (reflecting 11,600 visitor days). The estimated 10 year value of consumer surplus lost would be up to between $10.8m and $15.9m or between up to $9m and $13.3m in 2009/10 present value dollars, as shown in Table A3.1.

Table A3.1 – 10-year consumer surplus from whale swim activities ‘lost’ estimated in 2009/10 present value dollars

Year Lower end range of

consumer surplus

Upper end range of

consumer surplus


of consumer surplus

Present value upper end range of

consumer surplus

2009/10 $1,082,138.15 $1,593,789.88 $1,045,544.11 $1,539,893.60 2010/11 $1,082,138.15 $1,593,789.88 $1,010,187.54 $1,487,819.91 2011/12 $1,082,138.15 $1,593,789.88 $976,026.61 $1,437,507.16 2012/13 $1,082,138.15 $1,593,789.88 $943,020.88 $1,388,895.80 2013/14 $1,082,138.15 $1,593,789.88 $911,131.29 $1,341,928.31 2014/15 $1,082,138.15 $1,593,789.88 $880,320.08 $1,296,549.09 2015/16 $1,082,138.15 $1,593,789.88 $850,550.80 $1,252,704.44 2016/17 $1,082,138.15 $1,593,789.88 $821,788.22 $1,210,342.45 2017/18 $1,082,138.15 $1,593,789.88 $793,998.28 $1,169,413.00 2018/19 $1,082,138.15 $1,593,789.88 $767,148.09 $1,129,867.63 Total $10,821,381.50 $15,937,898.80 $8,999,715.90 $13,254,921.40

A3.2 Additional cost of proposed regulations 15(3), 16(3) and 19(3) under Option C (variation of Option B prohibiting whale swim tours)

Under proposed regulations 15(3), 16(3) and 19(3) for whale watching (aerial) whale watching (tour vessel) and seal watching, respectively, the conditions of the permit must be made clearly visible and posted on signs. The cost of each sign is estimated to be around $10 including lamination and printing in 2009/10. Assuming that there would be 26 permit holders and that signs would need to be replaced due to wear and tear at least once during the life of the proposed regulations, this would result in 52 signs. The cost would equal $10 x 26 signs or $260 in 2009/10 incurred in the first year of the proposed regulations. In the fifth

281 Data sourced from returns submitted to DSE by permit holders. 282 See Table A2.2 of Appendix 2 in this RIS for source of estimates.

112

year of the regulations (2014/15) the cost would be equal to $11.60��F

283 x 26 signs or $301.41 (i.e. $253.78 in 2009/10 present value dollars). The total 10 year cost in 2009/10 dollars would therefore be equal to $260 + $253.78 = $513.78. However, DSE may produce these signs, shifting the burden of cost to the general taxpaying community.

283 Equal to $10 and incremented by 3% per annum (which is the assumed average rate of inflation in this RIS).

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Appendix 4 – Calculation of prescribed marine mammal tour permit fees under Options 1, 2 (the proposed fees) and 3

The purpose of Appendix 4 is twofold. Firstly, it estimates the costs of issuing marine mammal tour permits by DSE. Secondly, this Appendix estimates the costs of three fee Options, 1, 2 and 3.

Option 1 calculates permit fees based on a full recovery of costs (including monitoring, auditing and law enforcement costs), noting that permits will be issued for a three year period.

Option 2 calculates permit fees based on a partial recovery of permit cost (75% cost recovery), including monitoring and auditing, but excluding law enforcement costs over the three year period of the permit. Partial cost recovery is justified on the basis of requiring the provision of a public educational component as part of the permit condition and a discount of 25% is applied. This discount is equivalent to the standard concession rate for a ‘student’ (representing the public goods aspect of education) provided by the Melbourne Zoo.

Option 3 introduces a maximum fee based on a partial recovery of permit costs (75% cost recovery) including monitoring and auditing, but excluding law enforcement costs. Under this option, the regulations would provide for the Secretary to set the permit fees at any amount up to the prescribed maximum level.��F

284 Unlike Option 2, Option 3 would allow the prescribed fees to be set at their 2018/19 level.

A4.1 Discussion of Tables A4.2 to A4.10

Table A4.4 establishes the cost of fee collection per marine mammal tour permit issued. Part A4.5 establishes the cost of law enforcement by DSE in relation to permits. Tables A4.5(a), (b), (c) and (d) establish the cost of monitoring and auditing compliance of conditions of the proposed class of three year marine mammal tour permits including:

• whale swim tour permit; • whale watching (tour vessel) tour permit; • whale watching (aerial) tour permit; and • seal tour permit.

Tables A4.6(a) and (b) illustrate the calculation of total cost of processing the issuing of the aforementioned permits (excluding fee collection costs). The essential data components required in Part A4.5 and in Tables A4.4, A4.5(a) to (d) and A4.6 include the staff classification, hourly charge out rate��F

285, the mean hours spent by a staff class on a particular activity and the number of permits. The estimate for the number of permits per class of permit is derived in section A4.1. The relevant charge out rates for particular staff classes, as used in Part A4.5 and in Tables A4.4, A4.5(a) to (d), and A4.6, are shown in Table A4.4. Finally, Tables A4.7 to A4.10 establish the full cost of permit activities (by class of permit) including a one-off processing, issuing and fee collection cost plus the 3-year recurrent law enforcement and monitoring and auditing cost.

284 Refer to part 3 of this RIS for an explanation of these options and why they have been selected. 285 The hourly charge out rate represents the full recovery of all associated direct and indirect costs of application processing by DSE.

114

A4.2 Number of permits issued by category

A4.2.1 Number of new permits to be issued per annum

The anticipated number of permits to be issued would be a large driver of recoverable cost. For the purposes of this RIS, the number of tour permits is assumed to be constant for the years 2009/10 to 2018/19.

This will almost certainly be the case for the number of whale swim tour permits, which will be limited to four at any one time according to the limited permit area determination for Port Phillip Bay.

However, estimating the number of whale watching and seal tour permits that could be issued is much more difficult. It is not possible to precisely determine the number of whale watching and seal tour permits that could be issued under the proposed regulations because:

• There are an unknown number of tour operators currently in operation that may choose to apply for a whale watching (vessel), whale watching (aerial) or seal tour permit, if they want to extend their tours to include these elements (for example, fishing charters; scenic flights).

• Current tour operators may choose not to apply for a permit. Tour permits are only required to approach whales or seal breeding colonies closer than the prescribed minimum distances. Thus they could elect to conduct tours in the vicinity of whales and seal breeding sites without a tour permit, as long as the tours do not approach closer than the standard minimum approach distances as set out in the regulations.

Given these issues, this RIS can only estimate the maximum number of whale watching and seal tour permits that could be issued from 2009/10 onwards, based on the number of operators that are currently conducting tours in the vicinity of whales or seal breeding colonies.

Based on the current number of operators, the estimated number of permits to be issued every three years is shown in Table A4.1.

Table A4.1 – Number of tour permit to be issued every three years

Category of permit Number of permits issued

Whale swim tour��F

286 4

Whale watching (vessel) tour 10

Whale watching (aerial) tour 6

Seal tour 10

Total number of permits to be issued 30

A4.3 Calculation of hourly charge out rates for DSE tasks

The calculation of the hourly charge out rates for DSE tasks is established by first taking the mid-range salary for particular staff classes for Victorian public servant categories involved in permit activities in 2008/09��F

287. All salaries are then incremented by 3.25% per annum based on the current Public Service Agreement 2009.

286 A whale swim tour permit also authorises whale watching. 287 See http://www.eduweb.vic.gov.au/edulibrary/public/hr/empconditions/VPS_salary_rates.pdf

115

Table A4.2 - Mid-range salaries by staff class

Staff class Annual salary (e)

Year VPS2 VPS3 VPS4 VPS5 VPS6

2009/10 $44,819 $57,909 $68,451 $81,767 $106,116

2010/11 $46,276 $59,791 $70,675 $84,424 $109,565

2011/12 $47,780 $61,734 $72,972 $87,168 $113,126

The hourly charge out rates for tasks of respective staff classes (VPS2, 3, 4, 5 and 6) from 2009/10 to 2011/12 are shown in Table A4.3. These hourly charge out rates are calculated using a mark-up factor (on-cost + overhead cost) of 70% on advice from DSE.

Table A4.3 - Calculation of hourly charge out rates by staff class

Hourly salary (f) = (e)/1,718hrs

Hourly charge out rate (g) = (f)*(1+(70%/100))

Year VPS2 VPS3 VPS4 VPS5 VPS6 VPS2 VPS3 VPS4 VPS5 VPS6

2009/10 $26.09 $33.71 $39.84 $47.59 $61.77 $44.35 $57.30 $67.73 $80.91 $105.00

2010/11 $26.94 $34.80 $41.14 $49.14 $63.77 $45.79 $59.16 $69.93 $83.54 $108.42

2011/12 $27.81 $35.93 $42.48 $50.74 $65.85 $47.28 $61.09 $72.21 $86.25 $111.94

In turn, the hourly charge out rates illustrated in Table A4.3, are used to determine the costs of specific tasks involved for particular categories of permits. The costs of specific tasks are then used to establish: the costs of fee collection (Table A4.4); monitoring and auditing costs for whale swim and non-swim tour activities (Tables A4.5(a)(b)(c) and (d)); and appropriate fees for the four categories of permits (Tables A4.7 to A4.10) based on full cost recovery.

According to Treasury cost recovery guidelines, costs to be considered for recovery relevant for permit application activities include specifically those:

• associated with the provision of services related to permit application processing; and • incurred by government when administering current regulations (including law

enforcement activities).

The relevant charge out rates are multiplied by the relevant number of hours spent by a staff member which gives the total cost of a particular staff class in a specific task. The relevant staff classes are then added up to give: the total cost of fee collection (see Table A4.4); law enforcement costs (see Part A4.5); the cost of monitoring and auditing (see Tables A4.5(a)(b)(c) and (d)); and the total cost of issuing permits for particular categories (see Tables A4.7 to A4.10).

A4.4 Calculation of permit fee collection costs – 2009/10

Table A4.4 below, establishes the average cost of collecting fees per permit. It is assumed that the average number of permits to be issued every three years would be constant over the 10 year life of the proposed regulations.

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Table A4.4 - Calculation of total cost of fee collection per permit – 2009/10

Related task (Fee collection per permit)

Number/ staff class involved

in related tasks

Total time (hours) 2009/10 (n)

Cost of activity (o) = (n)*(g)��F

288

Processing Payments (e.g. Banking cheques; processing credit cards) 1 x VPS2 0.083hrs $3.68

Invoicing/Reconciliation of permit fees 1 x VPS4 0.17hrs $11.51

Total cost of fee collection per permit $14.98

A4.5 Calculation��F

289 of total three year recurrent law enforcement costs (2009/10 to 2011/12) in 2009/10 dollars

This Part of the Appendix 4 considers the ‘hypothetical’ cost of law enforcement activities with respect to compliance by operators and the general public. These activities do not constitute routine monitoring or auditing activities but, rather, involve investigations of suspected offences, official warnings, issuing of infringement notices and prosecutions (i.e. general law enforcement). Given that law enforcement costs are recurrent and will occur each year during the life of the regulations, these costs are estimated separately from other one-off costs of activities associated with issuing permits as discussed in Tables A4.6(a) and (b).

A4.5.1 Estimated cost of investigations (non-prosecution related) including infringement notices over three years in 2009/10 dollars

The cost of investigations would involve costs of travelling to and from an investigation site, obtaining a statement, and issuing an infringement notice (where necessary). The 2009/10 annual cost of an investigation is estimated assuming an average of 2hrs total work per activity at a charge out rate of $67.73��F

290. The number of ‘non-prosecution’ related investigations is estimated to be one per year bringing the three year cost to $419.75:

Therefore, the total amount of costs associated with non-prosecution related investigations (including infringement notices) to be recovered over 3 years would equal $405.42 in 2009/10 present value dollars��F

291.

288 Hourly charge out rate used per staff class is for 2009/10 taken from Table A4.3. 289 All calculations in this RIS have been undertaken via use of a spreadsheet and estimates may be subject to rounding error for ease of presentation. 290 See Table A4.3 for 2009/10 under VPS4 staff class for source of estimate. Other relevant charge out rates are used for the respective years 2010/11 and 2011/12. 291 A real discount rate of 3.5% is used to calculate present value dollars.

2009/10 VPS4 x 2hrs x $67.73 x 1/year = $135.47

2010/11 VPS4 x 2hrs x $69.93 x 1/year = $139.87

2011/12 VPS4 x 2hrs x $72.21 x 1/year = $144.42

117

A4.5.2 The estimated cost of prosecutions (including prosecution related investigations) over 3 years in 2009/10 dollars

3-year cost of simple prosecutions:

Costs relating to simple prosecutions include: travelling to an investigation site and obtaining statements (5hrs for a VPS3 and 5hrs for a VPS4); seeking authorisations from the relevant manager; preparing a brief of evidence and discussions with the prosecutor; reading and signing a charge/summons (7.6hrs for a VPS3); court appearances (3.8hrs for a VPS4). In sum there are 12.6hrs, and 8.8hrs of committed time resources by a VPS3 and VPS4 staff member, respectively. Consideration is made in relation to the ‘potential’ for such costs to be incurred by DSE in the future. Such costs are assumed to be incurred once every year and involve a simple guilty plea.

The 2009/10 annual cost of simple prosecution activities is estimated using a charge out rate of $57.30��F

292and $67.73��F

293 for a VPS3 and VPS4, respectively. The number of simple prosecutions is estimated to be only 1 per annum, bringing the 3 year cost to $4,084.08:

The total amount of costs associated with simple prosecutions to be recovered over 3 years would equal $3,944.64 in 2009/10 present value dollars.

3-year cost of complex prosecutions:

Costs relating to complex prosecutions (where a not guilty plea is made) include:

• travelling to an investigation site and obtaining statements (5hrs for a VPS3 and 5hrs for a VPS4);

• seeking authorisations from the relevant manager; preparing a brief of evidence and discussions with the prosecutor; reading and signing a charge/summons (7.6hrs for a VPS3);

• initial court appearances (3.8hrs for a VPS4); • appearance for a ‘contest mention’ (pre-trial hearing) (10hrs for a VPS6 and 10hrs for a

VPS4); and • appearance at a hearing (associated with a not guilty plea) (15.2 hrs for a VPS6 and 15.2

hrs for a VPS4).

In sum there are 12.6hrs, 34hrs and 25.2hrs of committed time resources by a VPS3, VPS4 and VPS6 staff member, respectively. The number of complex prosecutions is estimated to be only 1 every 3 years��F

294. The 2010/11 annual cost of complex prosecution activities is estimated using a charge out rate of $59.16, $69.93 and $108.42 for a VPS3, VPS4 and VPS6,

292 See Table A4.3 for 2009/10 under VPS3 staff class for source of estimate. Other relevant charge out rates are used for the respective years 2010/11 and 2011/12. 293 See Table A4.3 for 2009/10 under VPS4 staff class for source of estimate. Other relevant charge out rates are used for the respective years 2010/11 and 2011/12. 294 Cost assumed to occur in year 2 of the 3-year permit period.

2009/10 [(VPS3 x 12.6hrs x $57.30) + (VPS4 x 8.8hrs x $67.73)] x 1/year = $1,318.06



118

respectively��F

295. The expected annual cost of complex prosecutions in 2010/11 would be $5,855.36:

2010/11 VPS3 x 12.6hrs x $59.16 + VPS4 x 34hrs x $69.93 + VPS6 x 25.2hrs x $108.42 = $5,855.36

The total amount of costs associated with complex prosecutions to be recovered over 3 years would equal $5,657.36 in 2009/10 present value dollars.

The total 3-year discounted cost of $10,007.41��F

296 is divided by the number of permits to be issued per annum (i.e. 30 permits) which gives an annual per permit cost of law enforcement of $333.58 in 2009/10 dollars.

This per permit law enforcement cost of $333.58 is added to the remaining one-off costs of processing permits as shown in Tables A4.6 to A4.9.

A4.6 Calculation of 3-year recurrent annual monitoring and auditing costs in relation to compliance with permit conditions in 2009/10 dollars

Given that monitoring and auditing costs are recurrent and would occur each year during the life of the regulations, these costs are estimated separately from other one-off cost of activities associated with issuing permits, as shown in Tables A4.6(a) and (b). Based on the type of permit allocated (whale swim vs. other) monitoring and auditing activities would differ and are calculated separately.

A4.6.1 Calculation of 3-year recurrent annual monitoring and auditing costs for whale swim permits only

Monitoring and auditing costs for 4 whale swim permits assume the following data points:

• An average of 1.52 hours per annum for VPS3 and 1.52 hours for a VPS4 is dedicated to monitoring and auditing of whale swim tour permit holders via a patrol vessel. This includes the time solely dedicated to monitoring whale swim tour permit holders and does not include the time spent by the patrol vessel on other duties such as monitoring recreational vessels or enforcing provisions under the Marine Act.

• One tour attended per annum for each permit holder = 4 tours;

• Four hours on average spent by a VPS3 staff member attending each tour (including travelling to and from embarkation site);

• One hundred and twelve dollar ($112) cost of a whale swim tour pass in 2009/10;

• Depreciation and fuel costs estimated by using the reimbursement rate for vehicle usage for public servants/officials of $0.74 per km��F

297 (i.e. fuel and depreciation). Assuming an average speed of travel of 90km/hr��F

298 outside the Melbourne metropolitan area, the reimbursement rate per hour is calculated as $0.74��F

299/km x 90km/hr = $66.84/hr; and

295 See Table A4.3 for 2010/11 under VPS3, VPS4 and VPS6 for source of estimates. 296 Made up of non-prosecution related investigation, simple prosecution and complex prosecution costs. 297Based on an estimate of $0.70 for the Office of State Revenue, NSW Treasury website in 2007 and increased by 3% per annum (the assumed rate of inflation in this RIS) . 298 Whilst the speed limit for most regional highways is 100km/hr the speed limit of 90km/hr suggests that travel will not be restricted to highways and will involve travel through built up areas where the speed limit is lower. 299 All calculations in this RIS are undertaken using a spreadsheet and rounded for simplification in this RIS.

119

• One hour spent by a VPS3 staff member issuing notifications of infringement and just 1 issued per year across the 4 permits.

As shown in Table A4.5(a), cost estimations for monitoring and auditing of whale swim tour permits are considered over the 3 years (2009/10 to 2011/12) and then discounted to 2009/10 dollars using a real discount rate of 3.5%. This cost of $8,076.62 is then divided by the number of 3-year whale swim tour permits to be issued in 2009/10 (i.e. 4 permits) giving the monitoring and auditing cost per permit of $2,019.15. This per permit (unit) cost is then added to the other costs of a whale swim permit, as outlined in Table A4.7.

Table A4.5(a) - Calculation of estimated total cost of monitoring and auditing activities – whale swim tour permits only - 2009/10 to 2011/12 in 2009/10 dollars

Cost of activity (q) = (p)*(g)

(g) adjusted for salary loading: Saturday = +50% Sunday = +100%

Public holiday = +250%

Related task (Whale swim tour permits only)

Number/ staff class

involved in related

activities

Total time (hours) 2009/10

(p)

2009/10 2010/11 2011/12 3-year cost 3 –year cost

(2009/10 dollars)

Midweek 0.38hrs $21.77 $22.48 $23.21 $67.47 $65.17

Saturday 0.38hrs $32.66 $33.72 $34.82 $101.21 $97.75

Sunday 0.38hrs $43.55 $44.96 $46.43 $134.94 $130.33

Monitoring and auditing compliance (general inspections by DSE wildlife patrol boat)

1 x VPS3

Public Holidays 0.38hrs $54.44 $56.21 $58.03 $168.68 $162.92

Midweek 0.38hrs $25.74 $26.58 $27.44 $79.75 $77.03

Saturday 0.38hrs $38.61 $39.86 $41.16 $119.63 $115.54

Sunday 0.38hrs $51.48 $53.15 $54.88 $159.51 $154.06

Monitoring and auditing compliance (general inspections by DSE wildlife patrol boat)

1 x VPS4

Public Holidays 0.38hrs $64.35 $66.44 $68.60 $199.38 $192.57

Attending 4 tours per annum @ 3 hrs per tour + 1hr of travel per tour

1 x VPS3 16hrs $916.83 $946.63 $977.40 $2,840.86 $2,743.86

Providing notifications of infringements 1 x VPS3 1hr $57.30 $59.16 $61.09 $177.55 $171.49

Vessel fuel costs��F

300 $180 $185 $191 $556 $537.40

Vessel maintenance and storage cost $500 $515 $530 $1,545 $1,492.77

Cost of tour pass in 2009/10 @ $112/tour x 4 tours $448 $461 $475 $1,385 $1,337.52

Vehicle depreciation and fuel cost 2009/10 @$66.84/hr x 4 hours $267 $275 $284 $826 $798.21

3-year cost of activities in 2009/10 dollars $8,076.62

Time taken for all activities over 3 years 60.12hrs

Time taken per permit issued over 3 years 15.03hrs

Total number of permits issued over 3 years 4

Total 3-year cost of monitoring and auditing activities to be recovered per whale swim tour permit in 2009/10

$2,019.15

300 Costs increased by the assumed rate of inflation of 3% used in this RIS.

120

A4.6.2 Calculation of 3-year recurrent annual monitoring and auditing costs for whale watching (tour vessel) tour permits

Monitoring and auditing costs for 10 whale watching (tour vessel) permits assume the following data points:

• Four hours on average spent by a VPS2 staff member attending each tour (including travelling to and from embarkation site);

• One tour attended per annum per permit holder = 10 tours;

• Fifty six dollar ($56) cost of a whale watching tour pass in 2009/10;

• Depreciation and fuel costs = $66.84/hr; and

• Two hours spent by a VPS3 staff member issuing notifications of infringement.

As shown in Table A4.5(b), cost estimations for monitoring and auditing are considered over the 3 years (2009/10 to 2011/12) and then discounted to 2009/10 dollars using a real discount rate of 3.5%. This cost of $9,319.43 is then divided by the number of 3-year whale watching (tour vessel) tour permits to be issued in 2009/10 (i.e. 10 permits) giving the monitoring and auditing cost per permit of $931.94. This per permit (unit) cost is then added to the other costs of a whale watching (tour vessel) permit, as outlined in Table A4.8.

Table A4.5(b) - Calculation of estimated total cost of monitoring and auditing activities – whale watching (tour vessel) tour permits only - 2009/10 to 2011/12 in 2009/10 dollars

Cost of activity (s) = (r)*(g)

Related task (Whale watching (tour vessel) tour permits only)

Number/ staff class

involved in related

activities


(r) 2009/10 2010/11 2011/12 3-year cost 3 –year cost

(2009/10 dollars)

Attending 10 tours per annum @ 3 hrs per tour + 1hr of travel per tour)

1 x VPS2 40hrs $1,773.99 $1,831.64 $1,891.17 $5,496.80 $5,309.12

Providing notifications of infringements 1 x VPS3 2hrs $114.60 $118.33 $122.17 $355.11 $342.98

Cost of tour pass in 2009/10 @ $56/tour x 10 tours $560.00 $576.80 $594.10 $1,730.90 $1,671.90

Vehicle depreciation and fuel cost 2009/10 @$66.84/hr x 10 hours $668.37 $688.42 $709.07 $2,065.86 $1,995.43


Time taken for all activities over 3 years 126hrs



Total 3-year cost of monitoring and auditing activities to be recovered per whale watching (tour vessel) tour permit in 2009/10

$931.94

A4.6.3 Calculation of 3-year recurrent annual monitoring and auditing costs for whale watching (aerial) tour permits

Monitoring and auditing costs for 6 whale watching (aerial) permits assume the same data points as for whale watching (tour vessel) permits except that: a typical pass for aerial tours is taken to be $200 in 2009/10; and only one hour is spent by a VPS3 staff member attending each tour; and only one hour is spent by a VPS3 staff member issuing a notification of infringement per annum.

121

As shown in Table A4.5(c), cost estimations for monitoring and auditing are considered over the 3 years (2009/10 to 2011/12) and then discounted to 2009/10 dollars using a real discount rate of 3.5%. This cost of $6,715.61 is then divided by the number of 3-year whale watching (aerial) tour permits to be issued in 2009/10 (i.e. 6 permits) giving the monitoring and auditing cost per permit of $1,119.27. This per permit (unit) cost is then added to the costs of a whale watching (aerial) permit, as outlined in Table A4.9.

Table A4.5(c) - Calculation of estimated total cost of monitoring and auditing activities – whale watching (aerial) tour permits only - 2009/10 to 2011/12 in 2009/10 dollars

Cost of activity (u) = (t)*(g)

Related task (Whale watching (aerial) tour permits only)

Number/ staff class

involved in related

activities


(t) 2009/10 2010/11 2011/12 3-year cost 3 –year cost

(2009/10 dollars)

Attending 6 tours per annum @ 1 hr per tour + 1hr of travel per tour)

1 x VPS2 12hrs $532.20 $549.49 $567.35 $1,649.04 $1,592.74


Cost of tour pass in 2009/10 @ $200/tour x 6 tours $1,200.00 $1,236.00 $1,273.08 $3,709.08 $3,582.64




Time taken per permit issued over 3 years 7hrs


Total 3-year cost of monitoring and auditing activities to be recovered per whale watching (aerial) tour permit in 2009/10

$1,119.27

A4.6.4 Calculation of 3-year recurrent annual monitoring and auditing costs for seal tour permits

Monitoring and auditing costs for 10 seal tour permits assume the same data points as for whale watching (tour vessel) permits except that: a typical pass for seal tours is taken to be $60 in 2009/10.

As shown in Table A4.5(d), cost estimations for monitoring and auditing are considered over the 3 years (2009/10 to 2011/12) and then discounted to 2009/10 dollars using a real discount rate of 3.5%. This cost of $9,438.95 is then divided by the number of 3-year seal tour permits to be issued in 2009/10 (i.e. 10 permits) giving the monitoring and auditing cost per permit of $943.89. This per permit (unit) cost is then added to the other costs of a seal tour permit, as outlined in Table A4.10.

122

Table A4.5(d) - Calculation of estimated total cost of monitoring and auditing activities – seal tour permits only - 2009/10 to 2011/12 in 2009/10 dollars

Cost of activity (w) = (v)*(g)

Related task (Seal tour permits only)

Number/ staff class involved in related activities


(v) 2009/10 2010/11 2011/12 3-year cost 3 –year cost

(2009/10 dollars)

Attending 10 tours per annum @ 3 hrs per tour + 1hr of travel per tour)

1 x VPS2 40hrs $1,773.99 $1,831.64 $1,891.17 $5,496.80 $5,309.12


Cost of tour pass in 2009/10 @ $60/tour x 10 tours $600.00 $618.00 $636.54 $1,854.54 $1,791.32






Total 3-year cost of monitoring and auditing activities to be recovered per seal tour permit in 2009/10

$943.89

A4.7 Calculation��F

301 of 2009/10 fees for all categories of permits (Fees Option 1 - full cost recovery)

Option 1 involves setting fees based on full estimated costs in 2009/10 including the recurrent costs of auditing and law enforcement (both over 3 years and discounted to 2009/10 dollars).

The administrative cost of $54.31 to process a whale swim tour permits (excluding fee collection) assumes the following activities, staff class and time as shown in Table A4.6(a).

Table A4.6(a) - Calculation of administrative cost to process and issue a whale swim tour permit

Related Activity (For whale swim tour permit)

Number/ staff class involved in related

activities

Total time (hours)/

Annum (x)

Cost of activity (y) = (x)*(g)

Entering permit applications on register. 1 x VPS2 0.17hrs $7.39 Printing and collating list of applications for presentation at meeting 1 x VPS2 0.83hrs $3.70

Selecting successful applicants 1 x VPS5 1 hr $80.91 Administration activity within the meeting for applications 1 x VPS5 1hr $80.91

Follow-ups, printing & mailing of the permits 1 x VPS2 1 hr $44.35 Total cost of processing all whale swim permits (not including fee collection) $217.26 Total number of permits to be issued 4 Total time and cost taken to process and issue a whale swim permit (not including fee collection) 0.81hrs $54.31

301 All calculations in this RIS have been undertaken via use of a spreadsheet and estimates may be subject to rounding error for ease of presentation.

123

The administrative cost of $29.84 to process and issue any permit, apart from whale swim tour permits (excluding fee collection) is identical and assumes the following activities, staff class and time as shown in Table A4.6(b).

Table A4.6(b) - Calculation of administrative cost to process and issue any type of marine mammal tour permit (excluding a whale swim permit)

Related Activity (For marine mammal tour permit (excluding

whale swim permit))

Number/ staff class involved in related

activities

Total time (hours)/

Annum (z)

Cost of activity (a1) = (z)*(g)

Entering permit applications on register. 1 x VPS2 0.05hrs $2.22

Assessing permit applications 1 x VPS5 0.25hrs $20.23

Follow-ups, printing & mailing of the permits 1 x VPS2 0.17hrs $7.39

Total time and cost taken to process and issue a permit (not including fee collection) 0.47hrs $29.84

In order to calculate the total cost of a permit for each of the categories shown in Tables A4.7 to A4.10 below – the administrative cost of processing and issuing a permit in Table A4.6(a) or Table A4.6(b) is then combined with:

• the one-off costs of fee collection (see Table A4.4); • the recurrent 3-year costs of law enforcement combined and discounted in 2009/10

dollars (see Part A4.5); and • the recurrent 3-year cost of monitoring and auditing combined and discounted to

2009/10 dollars (see Tables A4.5(a) to (d)).

Table A4.7 - Calculation of 3-year whale swim tour permit fee

Related Activity (For whale swim tour permit)

Cost of activity

Total cost of processing and issuing a permit (not including cost of fee collection) $54.31

Total cost of fee collection to be recovered from each permit��F

302 $14.98

Total cost of law enforcement recovered from each permit��F

303 $333.58

Total cost of 3-year monitoring and auditing activities recovered from each permit��F

304 $2,019.15

Total fee per whale swim tour permit $2,422.03

302 This figure is taken from Table A4.4. 303 See Part A4.5 of Appendix 4 of this RIS for source of figure. 304 This figure is taken from Table A4.5(a).

124

Table A4.8 - Calculation of 3-year whale watching (tour vessel) tour permit fee

Related Activity (For whale watching (tour vessel) tour permit)

Cost of activity



305 $14.98


306 $333.58


307 $931.94

Total fee per whale watching(tour vessel) tour permit $1,310.34

Table A4.9 - Calculation of 3-year whale watching (aerial) tour permit fee

Related Activity (For whale watching (aerial) tour permit)

Cost of activity



308 $14.98


309 $333.58


310 $1,119.27

Total fee per whale watching(aerial) tour permit $1,497.67

Table A4.10 - Calculation of 3-year seal tour permit fee

Related Activity (For seal tour permit)

Cost of activity



311 $14.98


312 $333.58


313 $943.89

Total fee per seal tour permit $1,322.30

In summary, the total cost of activities for DSE involving marine mammal tour permits in 2009/10 dollars equals $45,000.57 – including the one-off costs of fee collection, processing and issuing the permits plus the 3-year recurrent costs of law enforcement plus monitoring and auditing – (see Table A4.11).

305 This figure is taken from Table A4.4. 306 See Part A4.5 of Appendix 4 of this RIS for source of figure. 307 This figure is taken from Table A4.5(b). 308 This figure is taken from Table A4.4. 309 See Part A4.5 of Appendix 4 of this RIS for source of figure. 310 This figure is taken from Table A4.5(c). 311 This figure is taken from Table A4.4. 312 See Part A4.5 of Appendix 4 of this RIS for source of figure. 313 This figure is taken from Table A4.5(d).

125

Table A4.11 - Total 3-year recurrent and on-off cost to be recovered from permit activities for DSE in 2009/10

Category of permit associated with activities

Number of permits to be

issued��F

314

Cost per permit��F

315 Total cost

Whale swim tour permits 4 $2,422.03 $9,688.14

Whale watching (tour vessel) tour permits 10 $1,310.34 $13,103.45

Whale watching (aerial) tour permits 6 $1,497.67 $8,986.02

Seal tour permits 10 $1,322.30 $13,222.97

Total cost of providing and monitoring permits $45,000.57

Based on tables A4.7 to A4.10, the following schedule of fees for Option 1 is summarised in Table A4.12:

Table A4.12 – Full cost recovery fees for 3-year marine mammal tour permits – Option 1 (2009/10)

Fee Category Year



permit


Seal tour permit

2009/10 $2,422.03 $1,310.34 $1,497.67 $1,322.30

A4.8 Fees Option 2 the proposed fees regulation – partial cost recovery (excluding the costs of law enforcement and including a ‘public benefit discount’)

Fees Option 2 involves setting fees based on estimated costs less the costs of law enforcement and applying a 25%��F

316 discount to capture the ‘public goods’ benefit of the educational component requirement of marine mammal tour permits under proposed regulation 15(2), 16(2) and 19(2):

‘The holder of a permit must, for each tour he or she conducts, provide all persons with clear and accurate information on the biology and conservation status of and threats facing each species of marine mammal encountered on the tour.��F

317

Option 2 involves taking tables A4.7 to A4.10 and removing the costs of law enforcement and applying a discount of 25% to the balance of costs. The following schedule of fees for Option 2 is summarised in Table A4.13:

314 These figures are obtained from Table A4.1. 315 These figures are taken from Tables A4.7 to A4.10. 316 This is the approximate discount that is provided to students attending Melbourne Zoo which is supposed to reflect the public benefit which accrues from the educational aspects of their visit with respect to conservation and protection of species. 317 See proposed regulations in Appendix 8.

126

Table A4.13 – Partial cost recovery fees for 3-year marine mammal tour permits – Option 2 (2009/10)

Fee Category Year



permit


Seal tour permit

2009/10 $1,566.34 $732.57 $873.07 $741.54

A4.9 Fees Option 3 – maximum fees (2018/19) based on partial cost recovery (excluding costs of law enforcement including a ‘public benefit discount’)

Setting maximum fees based on the maximum possible annual cost for DSE (that is, the cost in 2018/19) is achieved by taking the fees in 2009/10 and increasing them by the expected average rate of inflation over 10 years (assumed in this RIS to be 3% per annum). Prescribed fees are increased every year by the rate of inflation as allowed by Treasury. However in this case fees are set at a maximum and this would provide flexibility for DSE in being able to charge any amount up to this level.

Option 3 involves taking tables A4.7 to A4.10, removing the costs of law enforcement and applying a discount of 25% to the balance of costs and incrementing them by 3% per annum. The following schedule of fees for Option 3 is summarised in Table A4.14:

Table A4.14 – Partial cost recovery of maximum fees for 3-year marine mammal tour permits – Option 3 (2018/19)

Fee Category Year



permit


Seal tour permit

2009/10 $2,043.72 $955.84 $1,139.16 $967.54

127

Appendix 5 – Estimated costs of fees Options 1, 2 and 3 including the cost of the proposed fees under regulatory Options B, C and D

A5.1 10-year cost to permit holders of fees Option 1 - full cost recovery

As shown in Table A5.1, the total cost of fees Option 1 over 10 years in 2009/10 present value dollars is estimated to be equal to the sum of costs for each of the fee classes =$176,145.37��F

318. The total cost represents the cost to issue the first of the 3-year permits in 2009/10, the second in 20012/13, the third in 2015/16, and the fourth in 2018/19 (a total of 30��F

319 x 4 = 120 estimated tour permits).

Table A5.1 – Estimation of incremental fees cost of marine mammal tour permits (2009/10 to 2018/19) in present value 2009/10 dollars��F

320 – Fees Option 1

Year Whale swim permit fee��F

321 2009/10 present value of whale swim

permit fee

Whale watch (tour

vessel) permit

fee

2009/10 present value of

whale watch (tour vessel) permit fee

Whale watch

(aerial) permit fee

2009/10 present value of whale watch

(aerial) permit fee

Seal permit

fee


seal permit fee

2009/10 (a) $2,422.03��F

322 $2,422.03 $1,310.34 $1,310.34 $1,497.67 $1,497.67 $1,322.30 $1,322.30

2012/13 (b) $2,646.62 $2,387.10 $1,431.85 $1,291.45 $1,636.55 $1,476.07 $1,444.91 $1,303.23

2015/16 (c) $2,892.04 $2,352.67 $1,564.62 $1,272.82 $1,788.30 $1,454.78 $1,578.89 $1,284.43

2018/19 (d) $3,160.20 $2,318.74 $1,709.70 $1,254.46 $1,954.12 $1,433.80 $1,725.30 $1,265.90

No. permits (e) 4 10 6 10

Total 10-year cost = [(a)+(b)+(c)+(d)]*(e) $37,922.19 $51,290.71 $35,173.92 $51,758.55

A5.2 10-year cost to permit holders of fees Option 2 (the proposed fees regulation) – partial cost recovery

As shown in Table A5.2, the total cost of fees Option 2 over 10 years in 2009/10 present value dollars is estimated to be $102,730.08��F

323. The total cost represents 4 issues of an estimated 120 3-year permits, as for Option 1 above.

318 Sum of $37,922.19 + $51,290.71 + $35,173.92+ $51,758.55= $176,145.37. 319 See Table A4.1 of Appendix 4 of this RIS for source of estimate. 320 A real discount rate of 3.5% is used for present value calculations. 321 Increased by 3% (assumed average annual rate of inflation in this RIS). 322 All full cost recovery fees in 2009/10 are taken from Table A4.12 of Appendix in this RIS. 323 Sum of $24,524.45 + $28,675.05 + $20,504.65 + $29,025.93 = $102,730.08.

128




325 2009/10 present value of

whale swim permit fee

Whale watch (tour

vessel) permit

fee

2009/10 present value of whale

watch (tour vessel)

permit fee

Whale watch

(aerial) permit fee


(aerial) permit fee

Seal permit

fee


seal permit fee

2009/10 (a) $1,165.89��F

326 $1,165.89 $732.57 $732.57 $873.07 $873.07 $741.54 $741.54

2012/13 (b) $1,274.00 $1,149.08 $800.50 $722.01 $954.02 $860.48 $810.30 $730.84

2015/16 (c) $1,392.13 $1,132.50 $874.73 $711.59 $1,042.49 $848.06 $885.43 $720.30

2018/19 (d) $1,521.22 $1,116.17 $955.84 $701.33 $1,139.16 $835.83 $967.54 $709.91



A5.3 10-year cost to permit holders of fees Option 3 – partial cost recovery with maximum fees

As shown in Table A5.3, the total fee cost of Option 3 in 2009/10 present value dollars over 10 years is estimated to be between $102,730.08 and $118,112.14��F

327.

Option 3 represents the possibility that DSE could set the fees anywhere between those represented under Option 2 in Table A4.13 of Appendix 4 in this RIS or the maximum fees in Table A4.14. If DSE were to set the fees equal to those in Table A4.13 and then increment them by 3% per annum until the maximum fees were reached in Table A4.16, then the cost in 2009/10 dollars would be $102,730.08. On the other hand, there is a possibility that DSE could set the fees equal to the maximum fees in Table A4.14 and maintain them for 10 years – for which the cost in 2009/10 dollars would be $118,112.14.

This would create uncertainty with regards to fee increments based on expected changes in inflation. However Option 3 would provide flexibility for DSE in meeting unforeseen changes in costs over the next 10 years. If the rate of CPI increase were greater on average than 3% per annum - then a maximum fee could jeopardise DSE’s to recover all of the appropriate��F

328 costs in relation to tour permits.

324 A real discount rate of 3.5% is used for present value calculations. 325 Increased by 3% (assumed average annual rate of inflation in this RIS). 326 All partial cost recovery fees in 2009/10 are taken from Table A4.13 of Appendix 4 in this RIS. 327 Sum of $28,196.56 + $32,968.65 + $23,574.87 + $33,372.06 = $118,112.14. 328 Partial (75%) recovery of costs (excluding law enforcement costs).

129




330



Whale watch (tour

vessel) permit

fee

2009/10 present value of whale watch (tour

vessel) permit fee

Whale watch

(aerial) permit fee


(aerial) permit fee

Seal permit

fee


seal permit fee

2009/10 (a) $1,521.22��F

331 $1,521.22 $955.84 $955.84 $1,139.16 $1,139.16 $967.54 $967.54

2012/13 (b) $1,521.22 $1,372.06 $955.84 $862.11 $1,139.16 $1,027.45 $967.54 $872.66

2015/16 (c) $1,521.22 $1,237.52 $955.84 $777.58 $1,139.16 $926.70 $967.54 $787.09

2018/19 (d) $1,521.22 $1,116.17 $955.84 $701.33 $1,139.16 $835.83 $967.54 $709.91



A5.4 Summary of 10-year cost to permit holders under all fees Options

Finally, Table A5.4 summarises and provides a comparison of the 10-year cost under each of the fees Options, 1, 2 and 3 (Tables A5.1 to A5.3) for all classes of marine mammal 3-year tour permit.

Table A5.4 – Summary and comparison of fees cost of marine mammal tour permits (2009/10 to 2018/19) in present value 2009/10 dollars��F

332 – Fees Options 1, 2, and 3

Option 10-year cost of whale

swim permit fee


watch (tour vessel)

permit fee


watch (aerial)

permit fee

10-year cost of seal

permit fee

10-year total cost in

2009/10 dollars

Option 1 (full cost recovery)

$37,922.19 $51,290.71 $35,173.92 $51,758.55 $176,145.37

Option 2 (partial cost recovery)

$24,524.45 $28,675.05 $20,504.65 $29,025.93 $102,730.08

Option 3 (partial cost recovery with

maximum fees)

Between $24,524.45

and $28,196.56

Between $28,675.05

and $32,968.65

Between $20,504.65

and $23,574.87

Between $29,025.93a

nd $33,372.06

Between $102,730.08

and $118,112.14

329 A real discount rate of 3.5% is used for present value calculations. 330 Increased by 3% (assumed average annual rate of inflation in this RIS). 331 All partial cost recovery ‘maximum’ fees in 2009/10 are taken from Table A4.14 of Appendix 4 in this RIS. 332 A real discount rate of 3.5% is used for present value calculations.

130

A5.4 10-year cost to permit holders of the proposed fees (Option 2) – partial cost recovery – under Options B, C and D

The purpose of this Part of Appendix 5 is to establish and summarise the cost of fees under Option 2 (the proposed fees with partial cost recovery) with respect to Options B, C and D.

A5.4.1 10-year cost to permit holders of the proposed fees under Option B

Under Option B, the 10-year 2009/10 dollar cost of the proposed fee regulations would be equal to $102,730.08 as estimated in Part A5.2 of this RIS (see Table A5.2 for source of estimate). This total cost represents 4 issues of an estimated 120 3-year permits.

A5.4.2 10-year cost to permit holders of the proposed fees under Option C

Under Option C, there would be no issue of whale swim permits and therefore, the 10-year 2009/10 dollar cost of the proposed fees regulations would be equal to $102,730.08 (see Table A5.2 for source of estimate), less the 10-year 2009/10 dollar cost of the whale swim permit fee of $24,524.45 (see Table A5.2 for source of estimate) = $78,205.63. This total cost represents 4 issues of an estimated 104 3-year permits.

A5.4.3 10-year cost to permit holders of the proposed fees under Option D

Under Option D, there would be 12 additional seal permits required (apart from the 10 permits at six seal breeding colonies), as compared to Options B and C, bringing the total anticipated number to 22. As shown in Table A5.5, the total additional cost of the proposed fees under Option D as compared to the ‘base case’ over 10 years in 2009/10 dollars is estimated to be $137,561.19��F

333. This total cost represents 4 issues of an estimated 168 3-year permits.


334 – (proposed fees under Option D)


335 2009/10 present value of


Whale watch (tour

vessel) permit

fee

2009/10 present value of whale

watch (tour vessel)

permit fee

Whale watch

(aerial) permit fee


(aerial) permit fee

Seal permit

fee


seal permit fee

2009/10 (a) $1,165.89��F

336 $1,165.89 $732.57 $732.57 $873.07 $873.07 $741.54 $741.54

2012/13 (b) $1,274.00 $1,149.08 $800.50 $722.01 $954.02 $860.48 $810.30 $730.84

2015/16 (c) $1,392.13 $1,132.50 $874.73 $711.59 $1,042.49 $848.06 $885.43 $720.30

2018/19 (d) $1,521.22 $1,116.17 $955.84 $701.33 $1,139.16 $835.83 $967.54 $709.91



333 Sum of $24,524.45 + $28,675.05 + $20,504.65 + $63,857.04 = $137,561.19 334 A real discount rate of 3.5% is used for present value calculations. 335 Increased by 3% (assumed average annual rate of inflation in this RIS). 336 All partial cost recovery fees in 2009/10 are taken from Table A4.13 of Appendix 4 in this RIS.

131

Appendix 6 - Comparison of proposed regulations with other jurisdictions

This Appendix summarises equivalent whale and/or seal watching regulations in the Commonwealth, other Australian states and New Zealand.

Commonwealth

The Environment Protection and Biodiversity Conservation Act 1999 (Commonwealth) prohibits the killing, taking, injuring and interfering with whales in the Australian Exclusive Economic Zone, i.e. outside state and territory waters between three and 200 nautical miles offshore. This area is defined under section 225 of that Act as the ‘Australian Whale Sanctuary’. ‘Interference’ as defined under that Act includes harassment, chasing and herding of whales. Section 247 of that act enables the making of regulations regarding human interactions with whales.

Divisions 8.1 and 8.2 of the ��HEnvironment Protection and Biodiversity Conservation Regulations 2000 regulate interactions with cetaceans and whale watching activities, and are consistent with the ‘national guidelines’. However, these regulations do not apply to seal watching or seal swimming.

The operation of a commercial tourist program in the Great Barrier Reef Marine Park requires a permit under the Great Barrier Reef Marine Park Act 1975 (Commonwealth). Whale watching and swimming with whales conducted incidentally to the core activities of a permitted commercial tour operation (e.g. reef snorkelling) do not require specific permission. However, whale watching and swimming with whales that form a primary advertised component of a permitted commercial tour operation require specific additional permission under the Act.��F

337

Western Australia

In August 1989, a commercial whale-watching industry was established in the waters off Perth. This industry is based on south-bound migrating Humpback whales from September to late November. The interest in whale watching has expanded, with charter vessels now operating from Albany, Broome, Exmouth, Denham, Karratha and Geographe Bay. The Albany-based operation principally targets the Southern Right Whale (Eubalaena australis), which calves and mates off the south coast. The Southern Right Whale is also being seen increasingly in Perth metropolitan waters.��F

338

Commercial tour vessels must be licensed under the Wildlife Conservation Act 1950, and are subject to conditions consistent with the ‘national guidelines’. Tour operators who hold a license to conduct tours within marine reserves may apply for a ‘Commercial Marine Mammal Interaction License’ to conduct whale, dolphin, seal or sea-lion tours in those areas.

Persons on private vessels (including everything from surfboards and kayaks to yachts and launches) do not require whale watching licences, but must adhere to these rules and guidelines governing whale watching. Aircraft are not permitted to fly within 300 metres of a whale, except by special authorisation.

Swimming with, feeding or touching whales is not permitted. Such actions may cause stress to the whale and are dangerous to people. If a person is in the water and a whale approaches,

337 Great Barrier Reef Marine Park Authority (2000). Whale and dolphin conservation in the Great Barrier Reef Marine Park Great Barrier Reef Marine Park Authority, Townsville. 338 WA Department of Conservation and Land Management web site <http://www.dec.wa.gov.au/parks-and-recreation/key-attractions/whale-watching.html >.

132

the person must endeavour to keep a minimum distance of 30 metres between themself and the whale.

Any marine vessel, whether powered by a motor, paddle or sail that is within a distance of 300 metres from a whale is within the whale's contact zone. Special rules apply within the contact zone.

Queensland

Whale watching and provisioning (feeding) has become increasingly popular along the Queensland coast. These activities are governed by marine park permits and a comprehensive code of practice. Only nine Great Barrier Reef tourism operators are permitted to conduct whale encounters in Queensland waters.��F

339

Large sections of Queensland’s coastal waters appear to be important to the Humpback whale population either as calving and/or mating grounds or as resting areas for whales migrating south to summer feeding grounds in Antarctic waters.��F

340

Regulation of recreational whale watching and the developing commercial whale watching industry is conducted under the Queensland Nature Conservation Act 1992, the Nature Conservation (Whales and Dolphins) Conservation Plan 1997 made under section 119 of that Act, and the Generic Code of Practice - Commercial whale watching. This Code of Practice establishes standards and states practices to be observed to support the Conservation Plan, and is consistent with the ‘national guidelines’. Permits are required for dolphin provisioning, but under the Conservation Plan no permits are to be issued for dolphin swims.

New South Wales

Minimum approach distances to certain marine mammals of the orders of Cetacea (whales, dolphins and porpoises), Sirenia (dugongs) and Pinnipedia (seals and sea-lions) are specified in the New South Wales National Parks and Wildlife Amendment (Marine Mammals) Regulation 2006, which amended the National Parks and Wildlife Regulation 2002. This Regulation also prescribes other requirements consistent with the ‘national guidelines’. Permits are required to conduct all tours in marine parks, including whale and dolphin watching tours. However these permits are currently issued at no charge.

The Regulation also includes some requirements that are not included in the ‘national guidelines’ such as those for ‘special interest marine mammals’ such as dugongs or other rarely sighted species of marine mammal, or specified marine mammals at risk of harassment, injury or death.

South Australia

The South Australian National Parks and Wildlife (Whales and Dolphins) Regulations 2000 prescribe minimum distances for interactions with whales and dolphins. Commercial whale watching operators are required under the National Parks and Wildlife Act 1972 to obtain permits to approach whales closer than the minimum prescribed distances.

These Regulations were revised in 2007 to address inadequacies, to include seals and sea lions and to implement the ‘national guidelines’. They also extend the permitting system to apply to dolphins, seals and sea lions, consistent with national guidelines.

339 The Great Barrier Reef Marine Park is within Commonwealth waters. 340 Queensland Government (1997) Nature Conservation (Whales and Dolphins) Conservation Plan 1997 Department of Environment, Brisbane.

133

Draft regulations��F

341 broadly similar to the proposed Victorian regulations have been released for public comment, and are expected to come into effect later this year.

Tasmania

The Tasmanian Department of Primary Industries, Parks, Water and Environment (DPIW) issues whale viewing and seal watching guidelines which are consistent with the ‘national guidelines’. There are no relevant regulations in Tasmania that cover marine mammal interactions. However, the Wildlife Regulations 1999 are currently under review, with a view to incorporating the national guidelines for whales, dolphins and seals.

New Zealand

Whale and seal watching in New Zealand is regulated under the Marine Mammals Protection Act 1978, which provides for the conservation, protection and management of marine mammals.

The Marine Mammals Protection Regulations 1992 have been developed to manage the rapidly growing whale and dolphin-watching industry. These regulations establish a public procedure for permit applications to allow the viewing of marine mammals and prescribe appropriate behaviour for all boats (and aircraft) in their vicinity. The requirements of the New Zealand regulations are broadly similar to those of the Australian ‘national guidelines’.

341 The Draft National Parks and Wildlife (Protected Animals—Marine Mammals) Regulations.

134

Appendix 7 – Comparison of proposed regulations with existing regulations

A7.1 – Overview of general conditions of the proposed Wildlife (Marine Mammal) Regulations 2009

Issue Current Regulations (1998) Proposal for new Regulations Rationale Comment DEFINITIONS Allowable/Prohibited vessels NB: “vessel” means any kind of vessel that is used, or capable of being used, in navigation by water, however propelled or moved, and includes— (a) a barge, lighter, floating restaurant or other floating vessel; and (b) an air-cushion vehicle or other similar craft, that is used in navigation by water; and (c) any aeroplane that is designed for and capable of being waterborne, for so long as that aeroplane is waterborne.

Not defined It is proposed to treat vessels as either allowable or prohibited, in line with the Australian National Guidelines for Whale and Dolphin Watching 2005 (ANG). Allowable vessels include motorboats, yachts, kayaks, canoes, surfskis, and inflatable craft. These will be permitted to approach marine mammals up to the minimum prescribed distance. Prohibited vessels include all personal motorised watercraft (e.g. jet skis and underwater scooters), parasails, remotely operated craft, wing-in-ground effect craft, and hovercraft. Prohibited vessels should not approach closer than 300m to any whale or dolphin or any seal breeding colony.

Prohibited vessels have been shown to have a high impact on whales and dolphins. These impacts include: disruption of important behaviour; displacement from or avoidance of important habitat areas; stress; injury; increased mortality and reduced breeding success.

From the Australian National Guidelines for Whale and Dolphin Watching 2005 (ANG): PROHIBITED VESSELS “Certain vessels are prohibited for use in whale and dolphin watching. These include all personal motorised watercraft (e.g. jet skis and underwater scooters), parasails, remotely operated craft, wing-in-ground effect craft, and hovercraft.”

Caution Zone Not defined. It is proposed to include a ‘caution zone’ around a marine mammal to help clarify when conditions apply upon approaching marine mammals in an allowable vessel: • for a dolphin – 150 metres; • for a whale – 300 metres; • for a seal – 50 metres.

Whale and dolphin distances are as recommended in the ANG. For seals the distance is considered reasonable based on expert opinion.

Calf Not defined Whale (and dolphin) calf: any whale less than half the length of an adult female whale of the same species.

To clearly define what a calf is, to assist in clear identification.

This definition is consistent with data on length of animals at weaning. (Ref: Huang et al in Marine Mammal Science, 2009.)

Pup Not defined

Seal pup: a seal that is less than half the length of an adult female of the same species.

To clearly define what a pup is, to assist in clear identification.

135 Issue Current Regulations (1998) Proposal for new Regulations Rationale Comment MINIMUM APPROACH DISTANCES FOR WHALES

Minimum approach distances for prohibited vessels

Not defined. Prohibited vessels: 300m from all whales and dolphins

As recommended in the ANG.

Minimum approach distances for Whales or Dolphins in distress

Stranded whale or dolphin: 50m

Stranded or entangled whale or dolphin: 300m


Minimum approach distances for Whales (not including dolphins)

Licensed tour operators: 50m (only for species specified in their permit) All other vessels: 100m Surfboards: 50m Swimming: 30m

Licensed tour operators: 100m (only for species specified in their permit) All other non-prohibited vessels: 200m Swimming: 100m

Consistent with the ANG. The larger distance for non-prohibited vessels is required by the definition of “whale watching tour”. The proposed distances allow licensed tour vessels to come closer (100m) than the general public but remain within distances recommended in the ANG.

Tighter rules for licensed tour operators can apply in a ‘limited permit area’ (see A7.2.1 below for details on limited permit areas).

Minimum approach distances for Dolphins

Licensed tour operators: 50m (only for species specified in their permit) All other vessels: 100m Surfboards: 50m Swimming: 30m

Licensed tour operators: 50m (only for species specified in their permit) All other allowable vessels: 100m Swimming: 30m • includes snorkelling or diving • includes the use of surfboards and small personal

buoyant devices

Consistent with the ANG. The larger distance for non-prohibited vessels is required by the definition of “whale watching tour”. The proposed distances allow licensed tour vessels to come closer (50m) than the general public but remain within distances recommended in the ANG.

Tighter rules for licensed tour operators can apply in a ‘limited permit area’ (see A7.2.1 below for details on limited permit areas).

Minimum approach distances for dolphins in Ticonderoga Bay Sanctuary Zone

Licensed tour operators: 200m All other vessels: 200m Surfboards: 50m Swimming: 30m

Licensed tour operators: 200m All other allowable vessels: 200m Swimming: 30m Dolphin and seal swim tours will not be permitted in the Ticonderoga Bay Sanctuary Zone.

Identified as an important nursery and feeding area for dolphins of Port Phillip Bay.

The extent of the Ticonderoga Bay Sanctuary Zone is reduced in the proposed Regulations. See definition of this area below for more details.

Minimum approach distances in narrow waterways

Not defined. For narrow waterways (eg. <300m in width at its widest point): • 30m minimum approach distance to whales and

dolphins. • Vessels must move past the marine mammals at

a constant speed no greater than 5 knots (no stopping).

• Avoid sudden changes of direction. • Avoid sudden changes in speed. • Must not remain in the caution zone for longer

than is necessary for safe passage.

To provide effective regulations in cases where narrow waterways make the standard minimum approach distances impractical.

“Narrow waterway” is defined as a waterway of less than 300 metres in width at its widest point. Examples of narrow waterways include: rivers and river mouths; confined bays and inlets; navigation channels in shallow waterways that are less than 300 metres in width at their widest point.

136 Issue Current Regs (1998) Proposal for new Regulations Rationale Comment MINIMUM DISTANCES FOR SEALS

General Tour Seal on land (inc. at significant seal breeding colony)

30m 10m

Seal at significant/protected breeding colony (prohibited vessels)

300m n/a

Seal at protected breeding colony in breeding season (1/11-28/2)

100m 50m

Seal at protected breeding colony (other times: 1/3 to 31/10)

50m 30m

Minimum approach distances for Seals Not covered in current regulations

Seal on man-made water-based structure*

5m 5m

Based on expert opinion and research on the response of seals to vessel approaches at breeding sites. Generally consistent other states. (Each state has slightly different distances regarding seals.)

Appropriate exemptions apply e.g.: • For holders of commercial

fishing licenses while fishing • If it is necessary to approach

in order to avoid damage to person or property

*Man-made water-based structures include boat ramps, piers, and free standing structures such as Chinaman’s Hat.

Recognised seal breeding colonies Not covered in current regulations

The recognised seal breeding colonies are the only sites at which the “breeding colony” distances as listed above will apply. These sites are:

SIGNIFICANT SEAL BREEDING COLONIES 1. Seal Rocks, Phillip Island PROTECTED SEAL BREEDING COLONIES 1. Rag Island, Cliffy Group 2. The Skerries 3. Lady Julia Percy Island 4. Cape Bridgewater

The seal breeding sites are the areas most in need of protection, particularly in the breeding season. Seals at Seal Rocks are well accustomed to human interaction and can be more closely approached than seals at other breeding sites. Seal Rocks is listed as a breeding colony to ensure tour operators require permits at the site.

These areas are defined in maps that are included as schedules to the proposed Regulations. NOTE: The seal breeding colony at Kanowna Island is not included in this list. It currently has stronger protections than the proposed regulations as a “Special Protection Zone” in the Wilson’s Promontory Marine National Park.

AIRCRAFT No fly zone for aircraft in the vicinity of marine mammals

“A person in charge of an aircraft must not manoeuvre the aircraft lower than 300 metres above an area within 300 metres of a whale.”

For general aircraft: • Do not fly lower than 500m within a 500m radius of a

whale or dolphin or seal at a recognised breeding colony.

For licensed tour aircraft: • Do not fly lower than 300m within a 300m radius of a

whale or dolphin or seal at a recognised breeding colony.

Consistent with the ANG (see comment).

Conditions for all aircraft in the vicinity of marine mammals

No additional conditions other than the no fly zone.

For all aircraft included licensed tours: • Avoid approaching a marine mammal from head-on • Avoid flying over or passing the shadow of the

aircraft over a marine mammal. • Cease the activity if a marine mammal shows signs of

disturbance • No landing on water to observe whales


Restrictions for helicopters in the vicinity of marine mammals

nil For all helicopters included licensed tours: • No hovering over the no-fly zone.


Distances for fixed-wing aircraft (500m) are greater than recommended in the ANG (300m). This allows licensed tour aircraft to come closer (300m) but remain in distances recommended in the ANG. Licensed tour helicopters can come closer (300m) than recommended in the National Guidelines (500m). This is consistent with the ANG under Tier 2 provisions. Tighter rules for licensed tour operators can apply in a Limited Permit Area.

137 Issue Current Regulations (1998) Proposal for new Regulations Rationale Comment DISTANCE BETWEEN VESSELS

These regulations apply to all vessels, including licensed tour vessels.

Distance between vessels A vessel must not be within 100 metres of a tour vessel conducting a whale swim. A tour vessel must not approach or remain within 300 metres of another tour vessel if that tour vessel is within 100 metres of a whale.

A person operating a vessel must not be within 100 metres of a tour vessel conducting a whale swim, or a seal tour conducting a swim.


Number of vessels in the Caution zone

Not defined. No more than 3 vessels are allowed within the caution zone (except in narrow waterways where not practicable).

As recommended in the ANG, adding the narrow waterways exception.

These regulations apply to all vessels, including licensed tour vessels. Limiting number of vessels within the Caution zone replaces 300m distance between tour vessels.

CONDITIONS WITHIN THE CAUTION ZONE


Approaching marine mammals

[Similar to proposed regulations] • Do not approach a marine mammal head on or from directly behind.

• Do not be in the path of a marine mammal • Do not separate any individual from a group of

marine mammals. • Do not come between a mother and calf or a seal

and pup.


These regulations apply to all vessels, including licensed tour vessels. Refer to diagrams adapted from the National Guidelines on next page.

Manoeuvring in the caution zone

[Similar to proposed regulations] Within the caution zone: • do not exceed 5 knots • avoid sudden changes in direction and speed

within the caution zone • leave the caution zone if a marine mammal

shows any sign of disturbance



OTHER CONDITIONS These regulations apply to all vessels, including licensed tour vessels.

Feeding No feeding whales or dolphins. No feeding marine mammals. No disposal of food or waste in the water within the caution zone of a marine mammal.

Touching No touching (in permit conditions). No touching marine mammals.

Appropriate exemptions apply (e.g. animals requiring Vet treatment or in a zoo.)

Noise No loud or sudden noise or playback of sound or recordings near.

No loud or sudden noise or playback of sound or recordings near marine mammals.

Adapted from current regulations and as recommended in the ANG and National Seal Strategy.

Dogs No current regulation. No dogs within 50m of marine mammals, whether on land or in the water.

As recommended in the National Seal Strategy.

New regulation. Except when necessary to pass and dog is on leash

138 Issue Current Regulations (1998) Proposal for new Regulations Rationale/Comment SANCTUARY & EXCLUSION ZONES

Logan’s Beach Exclusion Zone

“Logan’s Beach Exclusion Zone” means the land and waters, the outward boundary of which commences at the south eastern most tip of Point Ritchie then out to sea in the direction 350° magnetic to a point located at latitude 38° 24' 50", longitude 142° 30' 18", then by a line in a south easterly direction to a point at latitude 38° 25' 54", longitude 142° 32' 29", then by a line in the direction of 35° magnetic towards Gaul’s Cave to the low water mark and then by the low water mark following the shore line to the low water mark at the south eastern most tip of Point Ritchie.

Maintain the “Logan’s Beach Exclusion Zone” as in current Regulations. The text definition will be replaced by a map clearly illustrating the extent of the zone. This map will be included in a schedule to the proposed regulations.

To provide protection for the endangered Southern Right Whale, which come to Logans Beach between June and October to calve.

Ticonderoga Bay Sanctuary Zone (TBSZ)

“Ticonderoga Bay Sanctuary Zone” means all the waters of Port Phillip Bay that are within 500 metres of the low water mark between a line drawn due north from Police Point and a line drawn due north from Nepean Rock at Point Nepean.

The proposed regulations reduce the extent of the TBSZ to 250 metres of the low water mark. This will bring the boundary of the TBSZ into alignment with the Point Nepean Marine National Park, while still extending to Police Point. The text definition will be replaced by a map clearly illustrating the extent of the zone. This map is included in a schedule to the proposed regulations.

To provide an effective safe refuge for the dolphins while still allowing access to tour operators. Aligning with the marine national park helps clarify the boundary of the TBSZ. Note that stronger conditions for tour operators are proposed for the TBSZ (no swimming tours).

No-Fly zone for

General Aircraft:

No-Fly Zone for Licensed Aircraft:

(Adapted from the ANG)

Caution Zone for vessels approaching whales and dolphins:

139 A7.2 – Proposed regulations for Marine Mammal Tourist Operations A.7.2.1 Important changes to the Wildlife Act 1975 Issue Current Regulations (1998) Proposal for new Regulations Comment LIMITED PERMIT AREAS

Not defined. Current regulations include reference to whale swim tour areas. These are designated areas in which whale swim tours may be permitted, and the number of permits issued may be limited. The number of swim tour permits is limited in whale swim tour areas. Whale (dolphin) swim tours can only be conducted in whale swim tour areas

The amendments to the Wildlife Act 1975, which come into effect on 1 December 2009, replace whale swim tour areas with limited permit areas. • Whale (dolphin) swim tours can only be conducted

in a limited permit area. In a limited permit area extra restrictions can apply – see the Wildlife Amendment (Marine Mammals) Act 2008 for details: • The number of tour permits can be limited in a

limited permit area. • Extra conditions can be set in the limited permit area

determination (e.g. greater minimum distances, time limits, limits on the number of tours per day)

These provisions are included in amendments to the Wildlife Act 1975, which come into effect on 1 December 2009. (They are not part of the new Regulations.) Refer to the Wildlife Amendment (Marine Mammals) Act 2008 for details.

Port Phillip Bay is the only current whale swim tour area

Port Phillip Bay will become a limited permit area (with the same conditions it currently has as a whale swim tour area). Other areas may be considered for limited permit area nomination. eg. Bonney Upwelling

A proposal for a limited permit area determination must be released to the public for at least 28 days. During that time any person can make written submissions on the proposal. Refer to the Wildlife Amendment (Marine Mammals) Act 2008 for details.

140 A.7.2.2 Proposed regulations for marine mammal tourist operations Issue Current Regulations (1998) Proposal for new Regulations Comment PROPOSED PERMIT REQUIREMENTS

Whale and dolphin watching tours

Permits are currently required for all whale watching and dolphin watching operations that wish to approach closer than 100m (with a 50m minimum approach distance).

No change for dolphin watching tours. Minimum distances to whales have been increased to reflect new minimum approach distances recommended in the Australian National Guidelines for Whale and Dolphin Watching 2005 (ANG). Permits will be required for all whale (and dolphin) watching tours (applying the new definition of whale watching tour). i.e. Permits required:

• to approach closer than 200m to a whale (up to 100m)

• to approach closer than 100m to a dolphin (up to 50m)

Definition in amended Wildlife Act 1975: whale watching tour means an activity conducted for profit that

involves causing a vessel or aircraft to approach one or more whales at a distance, that is less than the prescribed minimum distance for the kind of aircraft or vessel, for the purpose of enabling persons on the vessel or aircraft to observe the whale or whales.

Dolphin swim tours • Permits are required for all whale (dolphin) swim tours.

• Whale (dolphin) swim tours can only be conducted in designated whale swim tour areas.

No change. • Permits will be required for all whale

(dolphin) swim tours. • Whale (dolphin) swim tours can only be

conducted in designated limited permit areas

Although the Wildlife Act 1975 refers to “whale swim tours” only swim tours with dolphins will be permitted. (NB: The definition of whale also includes dolphins).

Seal Tours There are no current permit requirements for seal tours.

Seal tour permits will be required for: • Boat-based seal tours conducted in the vicinity

of a recognised seal breeding colony. All other seal tours will be exempt from any permit requirements.

There is a new requirement for seal tour permits in the amended Wildlife Act 1975 Definition of seal tour in amended Wildlife Act 1975: seal tour means an activity conducted for profit that involves—

(a) one or more persons, on land, observing or interacting with seals; or (b) one or more persons being in a vessel on water or being in water to observe or swim with one or more seals.

141 Issue Current Regulations (1998) Proposal for new Regulations Rationale Comment CONDITIONS OF ALL MARINE MAMMAL TOUR PERMITS

Minimum approach distances for tour vessels

A permit holder can approach closer than the general public for particular whale, dolphin or seal species, as specified in the permit. Permits can only be issued for vessel-based tours (not aircraft). Current minimum approach distances: • Ticonderoga Bay: 200m from all

whales and dolphins • Whales: 50m • Dolphins: 50m • Seals: no minimum distance

requirements NB. All aircraft currently must keep out of a 300m air no-fly zone.

A permit holder can approach closer than the general public for particular whale, dolphin or seal species, as specified in the permit. Proposed minimum approach distances for permit holders (also refer to part A8.1 above): • Ticonderoga Bay: 200m from all whales and

dolphins • Whales: 100m (300m air no-fly zone) • Dolphins: 50m (300m air no-fly zone) • Seals: 10m (on land, including at significant

breeding sites – i.e. Seal Rocks) • Seals at protected breeding sites: − 50m in breeding season (1 Nov – end Feb) − 30m out of breeding season

To allow tour vessels and aircraft to approach closer than the general public, while adopting the recommendations in the ANG.

No proposed change for dolphin tour vessel permit conditions. Greater proposed distances for whale watching tours in line with ANG. New provisions for aircraft and seal tours. Proposed minimum approach distances will apply to licensed tour aircraft (300m no-fly zone).

Signage on vessels of tour conditions

Signs must be clearly posted on the tour vessel in places where all persons on the tour vessel are reasonably likely to see them, advising of the requirements of the Regulations and the conditions of the permit

No change. Signs must be clearly posted on the tour vessel in places where all persons on the tour vessel are reasonably likely to see them, advising of the requirements of the Regulations and the conditions of the permit

To ensure tour participants are made aware of the regulations and permit conditions.

No change from current regulations.

Supervision of tour passengers

All tour passengers must be under the direct supervision of the tour supervisor at all times while they are on board the vessel.

No change. All tour passengers must be under the direct supervision of the tour supervisor at all times while they are on board the vessel.


Prohibited equipment No motorised diving or swimming aid can be used from the tour vessel within 100 metres of a whale except in an emergency in which human lives are threatened

No substantial change. No motorised diving or swimming aid can be used from the tour vessel within the caution zone of a marine mammal except in an emergency in which human lives are threatened

Regulation essentially unchanged. 100m radius replaced by caution zone. Note that a motorised diving or swimming aid can still be used in an emergency in which human lives are threatened.

When a calf or pup is present

If a calf is detected, the tour vessel must immediately withdraw to the more than 100m from the calf.

No substantial change. When a calf or pup is detected, the tour vessel must immediately withdraw to the prescribed minimum distance for the calf or the general minimum approach distance for the pup.

Adapted from the ANG and National Seal Strategy.

Regulation essentially unchanged. 100m radius replaced by caution zone and seal pups included. Calf and pup definitions are now clarified – see part A8.1 above

142 Issue Current Regulations (1998) Proposal for new Regulations Rationale Comment Educational message Tours must provide clear and accurate information

on the biology, threats and conservation status of the marine mammals encountered on the tour.

New regulation.

Verbal notice to tour passengers of tour conditions

Before the tour vessel enters the caution zone, all persons on the tour vessel must be verbally advised of the requirements of the Regulations

To ensure tour participants are aware of tour conditions.

New regulation.

Cumulative time limits for vessels in the caution zone

No current time limits. A tour vessel must not remain within the caution zone of a whale or whales (including dolphins) for more than a cumulative time of 60 minutes per tour, to a maximum of 120 minutes per day.

To manage impacts on marine mammals, by restricting the cumulative time animals are in the vicinity of tour vessels.

New regulation. This does not apply to the caution zone for seals.

REPORTING REQUIREMENTS FOR WHALE WATCHING TOURS

Reporting requirements for whale watching tours

Monthly returns are required by whale watching tour operators under current regulations. Information included in the returns for each tour conducted: • the number of occasions the tour

vessel remained within 100m of a whale during that tour

• the time of day the tour vessel makes each approach within 100m of a whale during that tour

• the time of day the tour vessel withdraws beyond 100m of a whale during that tour

It is proposed that all whale watching permit holders be required to submit monthly return forms. • Returns will be due in the month following the

period for the return. • Returns must be made available for inspection

by a DES authorised officer upon request. Information included in the returns: • the name of the tour supervisor • the number of people on the tour • the date and time each whale watching tour

commenced and finished • the time of day for each time that the tour

vessel entered and left the caution zone • the location of any whales sighted • the species and number of whales sighted.

For monitoring whale watching operations and ensuring compliance with regulations.

Increased reporting requirements. The proposed regulations add to the current reporting requirements: • additional details on the

tour supervisor and size and duration of the tour

• additional data on whales species sighted and location of sightings

CONDITIONS OF AIR-BASED TOURS

General conditions for air-based tour permits

No current conditions. Permits for air-based whale watching tours cannot be issued under the current Act or regulations.

All general conditions of all Marine Mammal tour permits apply (see above). For the whale/dolphin species listed in the tour permit the no-fly zone is 300m (see diagram). For all other species the no-fly zone is 500m. Stricter regulations may apply in designated “limited permit areas’.

To allow aircraft to approach closer than the general public, while adopting the main recommendations in the ANG. Licensed tour helicopters can come closer (300m) than recommended in the National Guidelines (500m). This is consistent with the ANG under Tier 2 provisions.

143 Issue Proposal for new Regulations Rationale Comment CONDITIONS OF SEAL TOUR PERMITS

General conditions for seal tour permits

No current conditions. Permits for seal tours cannot be issued under the current Act or regulations.

All general conditions of all Marine Mammal tour permits apply (see above).

Reporting requirements No current reporting requirements.

No reporting requirements are being proposed for seal tours.

Seal tours are relatively low impact compared to whale tours. There are no time limits for seal tours, thus no compliance need for reporting.

Issue Current Regulations (1998) Proposal for new Regulations Rationale Comment CONDITIONS FOR WHALE SWIM TOUR PERMITS

General conditions for whale swim tour permits

All general conditions of all Marine Mammal tour permits apply (see above).

A whale swim must not be conducted within 100 metres of the low water mark.

A whale swim must not be conducted within 100 metres of the low water mark.

To help minimise impact of swim tours on dolphins.


Mermaid Lines Whale swims must use mermaid lines. Whale swims must use mermaid lines.

For safety and to help regulate the swims.


No repositioning. The tour vessel must not reposition during a whale swim.

The tour vessel must not reposition during a whale swim.

For safety and to help regulate the swims.


Distance from marine mammals when beginning swim.

No entering the water at a distance of less than 30m from a whale.

No entering the water at a distance of less than 30m from a whale.

For consistency with minimum approach distances for swimming.


When a calf is present No swimming if a calf is present. If a calf is detected during a swim: (i) all swimmers must immediately reboard the tour vessel; and (ii) the tour vessel must immediately withdraw to 100m from the calf.

No swimming if a calf is present. If a calf is detected during a swim: (i) all swimmers must immediately reboard the tour vessel; and (ii) the tour vessel must immediately withdraw to the prescribed minimum distance for the calf (i.e. 100m for dolphins) .

To provide protection for dolphin calves. Calves are vulnerable to significant impacts from repeated close contact with vessels.

Regulation essentially unchanged. 100m radius replaced by prescribed minimum distance (which is 100m for dolphins).

No underwater breathing equipment

No underwater breathing equipment can be used in a whale swim, other than a snorkel.

No underwater breathing equipment can be used in a whale swim, other than a snorkel.



Ending the swim When all swimmers are back on board the tour vessel must immediately retrieve the mermaid line and withdraw 100m from whales.

When all swimmers are back on board the tour vessel must immediately retrieve the mermaid line and withdraw to outside the caution zone.


Regulation essentially unchanged. 100m radius replaced by caution zone.

144 Issue Current Regulations (1998) Proposal for new Regulations Rationale Comment CONDITIONS FOR WHALE SWIM TOUR PERMITS

Whale swim restrictions in Ticonderoga Bay Sanctuary Zone

No whale swims can be conducted in the Ticonderoga Bay Sanctuary Zone.

To provide a safe haven for dolphins in this important feeding ground.

This clarifies regulations in the Ticonderoga Bay Sanctuary Zone. Note that the extent of the TBSZ is reduced to 250m from shore in the proposed regulations.

Limit on number of people in a swim

No more than 10 persons can participate in a whale swim.

No more than 10 persons can participate in a whale swim at any one time.

To help regulate the swims.

This allows more than 10 swimmers to participate in a single swim – swimmers can swap over during a swim, as long as the 30m rule is obeyed when entering the water.

Number of approaches A tour vessel must not approach a whale closer than 100 metres more than 4 times each tour but in any event not more than 8 times each day. Only one swim is allowed for each approach.

A tour vessel must not approach a whale more than 5 times each tour but in any event not more than 10 times each day. Only one swim is allowed for each approach within the caution zone.

To manage the impact of tour vessels on dolphin populations.

The number of approaches has been increased following stakeholder consultation.

No towing

No towing swimmers during a whale swim.

This clarifies the “No repositioning” rule.

New regulation.

REPORTING REQUIREMENTS FOR WHALE SWIM TOUR PERMITS

Reporting requirements for whale swim tours

Monthly returns are required by whale swim tour operators under current regulations.

Identical to the requirements for whale watching tours, with the addition of: • the number of people who participated in

whale swims during each tour; and • the time of day that each whale swim began

and ended.

For monitoring whale swim tour operations and ensuring compliance with regulations.

Regulation essentially unchanged. Identical to the current reporting requirements, with the addition of location and species data on whales sighted.

145

Appendix 8 - Proposed Regulations

i

Wildlife (Marine Mammals) Regulations

Exposure Draft

TABLE OF PROPOSALS

Proposal Page

PART 1—PRELIMINARY 1 1 Objectives 1 2 Authorising provisions 2 3 Commencement 2 4 Exemption 2 5 Definitions 2

PART 2—PRESCRIBED MINIMUM DISTANCES 6 6 Prescribed minimum distance in the case of whales 6 7 Minimum approach distance in the case of seals 7

PART 3—GENERAL RESTRICTIONS ON ACTIVITIES RELATING TO MARINE MAMMALS 10

8 Restrictions on operation of aircraft in the vicinity of marine mammals 10

9 Restrictions on operation of vessels in the vicinity of marine mammals 11

10 Feeding marine mammals 13 11 Touching marine mammals 13 12 Noise in the vicinity of marine mammals 14 13 Dogs in the vicinity of marine mammals 14

PART 4—PROHIBITION ON ACTIVITIES IN LOGAN'S BEACH EXCLUSION ZONE 16

14 Offence to enter Logan's Beach Exclusion Zone 16

PART 5—CONDITIONS OF PERMITS 17 15 Prescribed conditions of whale watching tour permits (aircraft) 17 16 Prescribed conditions of whale watching tour permits (tour

vessel) and whale swim tour permits 19 17 Prescribed conditions of whale swim tour permits 22

Proposal Page

ii

18 Offence to conduct seal tour: prescribed person 25 19 Prescribed conditions of seal tour permits 25 20 Prescribed fees for tour permits 27

__________________

SCHEDULES 29 SCHEDULE 1—Significant Seal Breeding Colonies 29 SCHEDULE 2—Protected Seal Breeding Colonies 30 SCHEDULE 3—Logan's Beach Exclusion Zone 31 SCHEDULE 4—Ticonderoga Bay Sanctuary Zone 32 SCHEDULE 5—Seal Rocks, Phillip Island 33 SCHEDULE 6—Cape Bridgewater 34 SCHEDULE 7—Lady Julia Percy Island 35 SCHEDULE 8—Rag Island, Cliffy Group 36 SCHEDULE 9—The Skerries, Croajingolong National Park 37

═══════════════ ENDNOTES 38

1

Victoria

Wildlife (Marine Mammals) Regulations

Exposure Draft

PART 1—PRELIMINARY

1 Objectives The objectives of these Regulations are to—

(a) provide for the long-term protection of marine mammals by—



(iii) prescribing conditions for whale watching tour permits, whale swim tour permits and seal tour permits;


Part 1—Preliminary

Wildlife (Marine Mammals) Regulations Exposure Draft

2


2 Authorising provisions These Regulations are made under sections 85A and 87 of the Wildlife Act 1975.

3 Commencement These Regulations commence on 30 November 2009.

4 Exemption These Regulations do not apply to a zoological park within the meaning of the Zoological Parks and Gardens Act 1995, or at premises operating in accordance with a licence or authorisation issued under the Act.

5 Definitions In these Regulations—

allowable vessel means a vessel that is not a prohibited vessel;

calf means a young whale that is less than half the average length of an adult female whale of the same species;

Cape Bridgewater means the area shown hatched on the plan in Schedule 6;

caution zone for a marine mammal means an area around the mammal of a radius of the following—

(a) for a dolphin: 150 metres;

(b) for a whale, other than a dolphin: 300 metres;

(c) for a seal: 50 metres;



3

commercial fisher means the holder of a commercial fishery licence within the meaning of the Fisheries Regulations 2009;

dolphin means any wildlife that is a member of the family Delphinidae of the sub-order Odontoceti of the Order Cetacea, excluding members of the sub-family Globicephalinae (small toothed whales);

Lady Julia Percy Island means the area shown hatched on the plan in Schedule 7;

Logan's Beach Exclusion Zone means the area shown hatched on the plan in Schedule 3;

marine mammal means a whale or a seal;

mermaid line means a line with floats attached that is connected to a tour vessel;

narrow waterway means a waterway of less than 300 metres in width at its widest point; Examples

Examples of narrow waterways include—

(a) rivers and river mouths;

(b) confined bays and inlets;

(c) navigation channels in shallow waterways—

that are less than 300 metres in width at their widest point.

operate, in relation to a vessel, includes—

(a) determining or exercising control over the course or direction of a vessel or over the means of propulsion of a vessel (whether or not the vessel is underway); and

(b) piloting a vessel;



4

prohibited vessel means a vessel that is a personal motorised water craft, a parasail, a hovercraft, a wing-in-ground effect craft or a motorised diving aid, and includes a remotely-operated craft; Examples

Examples of prohibited vessels include—

(a) jet skis;

(b) motorised underwater scooters;

(c) remote-controlled speed boats.

protected seal breeding colony means a place listed in Schedule 2;

Rag Island, Cliffy Group means the area shown hatched on the plan in Schedule 8;

seal breeding season means the period between 1 November in any year and the last day of February in the following year;

seal pup means a seal that is not more than half the average length of an adult female of the same species;

Seal Rocks, Phillip Island means the area shown hatched on the plan in Schedule 5;

seal swim means any part of a seal tour that involves one or more persons being in water to observe or swim with one or more seals;

significant seal breeding colony means a place listed in Schedule 1;

swimming includes snorkelling or diving and the use of surfboards and small personal buoyant devices less than 2 metres in length that are not vessels;

the Act means the Wildlife Act 1975;



5

The Skerries, Croajingolong National Park means the area shown hatched on the plan in Schedule 9;

Ticonderoga Bay Sanctuary Zone means the area shown hatched on the plan in Schedule 4;

tour supervisor means a person appointed by the holder of a whale watching tour permit, a whale swim tour permit or a seal tour permit to supervise persons participating in a tour conducted under that permit;

tour vessel means a vessel specified in a whale watching tour permit, a whale swim tour permit or a seal tour permit;

whale swim means any part of a whale swim tour that involves one or more persons being in water to observe or swim with one or more whales.

Note

Distances are to be measured horizontally, unless otherwise specified in these Regulations: see section 43 of the Interpretation of Legislation Act 1984.

__________________

Part 2—Prescribed Minimum Distances


6

PART 2—PRESCRIBED MINIMUM DISTANCES

6 Prescribed minimum distance in the case of whales (1) Subject to subregulation (2), for the purposes of

section 77A(1) of the Act, the prescribed minimum distance is—

(a) 300 metres, if the person is operating a prohibited vessel; or

(b) 500 vertical metres if the person is operating an aircraft within a 500-metre radius of a whale and observing whales is the purpose, or one of the purposes, for which the person is operating that aircraft; or

(c) in the case of a dolphin outside the waters of Ticonderoga Bay Sanctuary Zone—

(i) 30 metres, if the person is swimming;

(ii) 100 metres, if the person is operating an allowable vessel; or

(d) in the case of a dolphin inside the waters of Ticonderoga Bay Sanctuary Zone—



(e) in the case of a whale that is not a dolphin—



(f) in the case of a dolphin in a narrow waterway, 30 metres, if the person is swimming or operating an allowable vessel; or



7

(g) in the case of a whale that is not a dolphin in a narrow waterway—

(i) 100 metres, if the person is swimming; or

(ii) 30 metres, if the person is operating an allowable vessel.

(2) For the purposes of section 77A(1) of the Act, the prescribed minimum distance for a whale that is stranded or entangled is 300 metres. Note

For the penalty for approaching a whale at a distance that is less than the prescribed minimum distance, see section 77A(1) of the Act.

7 Minimum approach distance in the case of seals (1) Subject to subregulations (3), (4) and (5), a person

must not approach a seal at a distance that is less than 30 metres, if the seal is on land.

Penalty: 20 penalty units.

(2) For the purposes of this regulation, land does not include a man-made water-based structure. Examples

Examples of man-made water based structures include—

(a) boat ramps;

(b) piers;

(c) the Port Phillip Bay seal platform (Chinaman's Hat).

(3) A person operating a prohibited vessel must not approach or cause the vessel to approach a seal at a distance of less than 300 metres if the seal is at a protected seal breeding colony.




8

(4) A person operating an allowable vessel must not approach or cause the vessel to approach a seal at a distance that is less than 30 metres if the seal is at a significant seal breeding colony.


(5) A person operating an allowable vessel must not approach a seal at a protected seal breeding colony at a distance that is less than—

(a) 100 metres, in the seal breeding season; or

(b) 50 metres, outside the seal breeding season.


(6) A person must not approach a seal at a distance that is less than 5 metres if the seal is on a man-made, water-based structure.


(7) A person operating an aircraft must not fly lower than 300 vertical metres within a 300-metre radius of a seal at a protected seal breeding colony.


(8) A person does not commit an offence against subregulation (1), (3), (4), (5), (6) or (7) merely because—

(a) the person is acting in accordance with a commercial fishery licence within the meaning of the Fisheries Regulations 2009 and is tending to commercial fishing equipment within the meaning of the Fisheries Act 1995; or

(b) the person is acting in accordance with a permit or authorisation granted or issued under the Act; or



9

(c) the person is an authorised officer acting in the course of his or her duties or a person acting under the direction of an authorised officer.

(9) A person does not commit an offence against subregulation (1), (3), (4), (5), (6) or (7) merely because the person approaches a seal at a distance that is less than the distance specified in that regulation because it was necessary to do so in order to—

(a) avoid damage or prevent further damage to person or property; or

(b) enable the person to launch or retrieve a vessel; or

(c) comply with an Act or regulations relating to navigation.

__________________

Part 3—General Restrictions on Activities Relating to Marine Mammals


10

PART 3—GENERAL RESTRICTIONS ON ACTIVITIES RELATING TO MARINE MAMMALS

8 Restrictions on operation of aircraft in the vicinity of marine mammals

(1) A person who is operating an aircraft, where the purpose or one of the purposes of operating the aircraft is to observe marine mammals, must not—

(a) approach a marine mammal from head on; or

(b) fly directly over or pass the shadow of the aircraft directly over a marine mammal; or

(c) land on water to observe marine mammals.


(2) A person operating an aircraft must not do so in the vicinity of a marine mammal if the marine mammal shows signs of disturbance.

Penalty: 20 penalty units. Examples

Examples of signs of disturbance include—

(a) for a whale—

(i) attempts to leave the area or vessel;

(ii) sudden changes in surface behaviour;

(iii) rapid changes in direction or speed of swimming;

(iv) hasty dives;

(v) changes in breathing patterns;

(vi) increased time diving compared to time spent at the surface;

(vii) changes in acoustic behaviour;

(viii) the onset of aggressive behaviours such as tail slashes or trumpet blows;



11

(b) for a seal—

(i) rapid movement toward the water if on land;

(ii) sudden awakening from sleep on land;

(iii) female attempting to shield a seal pup with her body or by her movements;

(iv) vocalisation or growling at the disturbance.

(3) A person operating a helicopter or gyrocopter must not cause or permit that craft to hover within a 500-metre vertical radius of a marine mammal.


(4) A person does not commit an offence against subregulation (1), (2) or (3) merely because it is necessary to operate the aircraft, helicopter or gyrocopter in order to—

(a) avoid damage or prevent further damage to person or property; or

(b) allow the aircraft, helicopter or gyrocopter to takeoff or land; or

(c) comply with an Act or regulations relating to the operation of aircraft, helicopters or gyrocopters.

9 Restrictions on operation of vessels in the vicinity of marine mammals

(1) A person operating a vessel within the caution zone of a marine mammal must not cause or permit that vessel to—

(a) approach a marine mammal head on; or

(b) approach a marine mammal from directly behind; or

(c) be in the path of a marine mammal; or

(d) separate any individual from a group of marine mammals; or



12

(e) come between a mother whale and calf or a seal and pup.


(2) A person operating a vessel, within the caution zone of a marine mammal, must—

(a) move the vessel at a constant speed that does not exceed 5 knots; and

(b) avoid sudden changes in speed or direction; and

(c) manoeuvre the vessel to outside the caution zone if a marine mammal shows any sign of disturbance.

Penalty: 20 penalty units. Note

Examples of signs of disturbance are set out at the foot of regulation 8(2).

(3) A person operating a vessel must not enter a caution zone of a marine mammal if more than two vessels are already within that caution zone, unless necessary to ensure safe passage through a narrow waterway.


(4) A person operating a vessel must not be within 100 metres of a tour vessel conducting a whale swim or a seal swim.


(5) A person operating a vessel in a narrow waterway must not remain in the caution zone of a marine mammal for longer than is necessary to ensure safe passage of the vessel through that waterway.




13

10 Feeding marine mammals (1) A person must not feed or attempt to feed a

marine mammal.


(2) A person does not commit an offence against subregulation (1) if—

(a) the person is an authorised officer acting in the course of his or her duties or a person acting under the direction of an authorised officer; or

(b) the person is acting in accordance with an authorisation under the Act; or

(c) the person is a commercial fisher routinely returning bycatch, if he or she takes reasonable efforts to avoid doing so near a marine mammal.

(3) A person must not dispose of food or waste in the water within the caution zone of a marine mammal.


11 Touching marine mammals (1) A person must not touch or attempt to touch a

marine mammal.



(a) the person is a registered veterinary practitioner within the meaning of the Veterinary Practice Act 1997 or a person acting under the control of a registered veterinary practitioner; or



14

(b) the person is acting in accordance with a permit or authorisation granted or issued under the Act; or

(c) the person is an authorised officer who is acting in the course of his or her duties or a person acting under the direction of an authorised officer.

12 Noise in the vicinity of marine mammals (1) A person within the caution zone of a marine

mammal must not—

(a) make or cause to be made any loud or sudden noise; or

(b) play back or cause to be played back an underwater sound or recording of any kind.



(a) the person is acting in accordance with a permit or authorisation granted or issued under the Act; or

(b) the person is an authorised officer who is acting in the course of his or her duties or a person acting under the direction of an authorised officer.

13 Dogs in the vicinity of marine mammals (1) A person who owns or is responsible for

controlling a dog must not allow that dog to approach within 50 metres of a marine mammal.




15


(a) it is necessary to allow the dog to approach closer than 50 metres to a marine mammal to enable the person to pass the marine mammal; and

(b) the dog is on a leash.

__________________

Part 4—Prohibition on Activities in Logan's Beach Exclusion Zone


16

PART 4—PROHIBITION ON ACTIVITIES IN LOGAN'S BEACH EXCLUSION ZONE

14 Offence to enter Logan's Beach Exclusion Zone (1) A person in charge of a vessel must ensure that

the vessel does not enter or remain in the Logan's Beach Exclusion Zone at any time from 1 June to 31 October in any year.



(a) the person is an authorised officer acting in the course of his or her duties; or

(b) the person is an employee of the Department of Sustainability and Environment or the Department of Primary Industries acting in the course of his or her duties; or

(c) the person has been granted a permit under section 78(1) of the Act.

(3) The Minister, by instrument published in the Government Gazette, may declare that subregulation (1) does not apply during any part of the time period during which subregulation (1) otherwise applies.

__________________

Part 5—Conditions of Permits


17

PART 5—CONDITIONS OF PERMITS

15 Prescribed conditions of whale watching tour permits (aircraft)

(1) For the purposes of section 83H of the Act, the conditions set out in this regulation are prescribed conditions for a whale watching permit that specifies that the holder may conduct tours from an aircraft.

(2) The holder of a permit must, for each tour he or she conducts, provide all persons on the tour, other than employees of the permit holder, with clear and accurate information on the biology and conservation status of and threats facing each species of marine mammal encountered on the tour. Note

Information on the biology of marine mammals includes information on their morphology, behaviour, distribution and reproductive cycle.

(3) The holder of a permit must ensure that signs are clearly posted on the aircraft in places where all persons on the aircraft are reasonably likely to see them, advising of the requirements of these Regulations.

(4) The holder of a permit must take reasonable steps to ensure that no person on the aircraft breaches these Regulations.

(5) The holder of a permit must, for each month, keep a monthly return in the form provided by the Secretary.

(6) The holder of a permit must ensure that, for each tour he or she conducts, the following information is recorded before any person disembarks from the aircraft—



18

(a) the name of the tour supervisor on the tour; and

(b) the number of persons, other than employees, on the aircraft during the tour; and

(c) the date and time of day the tour commenced and finished; and

(d) the time of day for each instance the aircraft passed over a whale or whales; and

(e) the location of whales sighted; and

(f) the species and number of whales sighted; and

(g) any other information required by the Secretary.

(7) The holder of a permit must ensure that the information recorded under subregulation (6) is included in the return kept under subregulation (5) for the month in which the relevant tour is conducted.

(8) The holder of a permit must ensure that each return kept under subregulation (5) is forwarded to the Secretary by the fourteenth day of the month following the month to which the return relates.

(9) The holder of a permit must ensure that a return kept under subregulation (5) is made available for inspection by an authorised officer upon request.

(10) The holder of a permit must not do any of the following—

(a) fly lower than 300 vertical metres within a 300-metre radius of a whale;

(b) fly lower than 300 vertical metres within a 300-metre radius of a seal at a protected seal breeding colony;



19

(c) if operating a helicopter or gyrocopter, cause or permit that craft to hover within a 300-metre vertical radius of a marine mammal.

16 Prescribed conditions of whale watching tour permits (tour vessel) and whale swim tour permits

(1) For the purposes of section 83H of the Act, the conditions set out in this regulation are prescribed conditions for a whale watching tour permit that specifies that the holder may conduct tours from a tour vessel and for a whale swim tour permit. Note

Additional prescribed conditions for whale swim tour permits are set out in regulation 17.



(3) The holder of a permit must ensure that signs are clearly posted on the tour vessel in places where all persons on the tour vessel are reasonably likely to see them, advising of the requirements of these Regulations and the conditions of the permit.

(4) The holder of a permit must ensure that before the tour vessel enters the caution zone of a marine mammal, all persons on the tour vessel are verbally advised of the requirements of these Regulations.



20

(5) The holder of a permit must ensure that all persons on the tour vessel, other than employees of the permit holder, are under the direct supervision of a tour supervisor at all times during a whale watching tour.

(6) The holder of a permit must take reasonable steps to ensure that no person on the tour vessel breaches these Regulations.

(7) The holder of a permit must ensure that no motorised diving or swimming aid is used or allowed to be used within the caution zone of a marine mammal from the tour vessel.

(8) The holder of a permit must ensure that when the tour vessel enters the caution zone of a marine mammal, the approach is signalled in the manner specified in the permit, if any.

(9) Subregulations (7) and (8) do not apply in an emergency in which human lives are threatened.

(10) The holder of a permit must ensure that the tour vessel does not approach to within a distance of 50 metres of a dolphin or 100 metres of a whale other than a dolphin, except when the tour vessel is in a narrow waterway.

(11) The holder of a permit must ensure that when the tour vessel is in a narrow waterway, the tour vessel does not approach to within a distance of 25 metres of a whale.

(12) The holder of a permit must ensure that while in the Ticonderoga Bay Sanctuary Zone, the tour vessel does not approach a whale within a distance of 200 metres.

(13) The holder of a permit must ensure that if a calf is detected, the tour vessel immediately withdraws to at least the prescribed minimum distance for that whale.



21

(14) The holder of a permit must ensure that the tour vessel does not remain within the caution zone of any whale or whales for more than a cumulative total of 60 minutes per tour, up to a maximum total of 120 minutes per day.

(15) The holder of a permit must, for each month, keep a monthly return in the form provided by the Secretary.

(16) The holder of a permit must ensure that, for each tour he or she conducts, the following information is recorded before any person disembarks from the tour vessel—

(a) the name of the tour supervisor on the tour; and

(b) the number of persons, other than employees, on the tour vessel during the tour; and

(c) the date and time of day the tour commenced and finished; and

(d) the time of day for each instance that the tour vessel entered and left the caution zone of a whale; and

(e) the location of whales sighted; and

(f) the species and number of whales sighted; and

(g) any other information required by the Secretary.

(17) The holder of a permit must ensure that the information recorded under subregulation (16) is included in the return kept under subregulation (15) for the month in which the relevant tour is conducted.



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(18) The holder of a permit must ensure that each return kept under subregulation (15) is forwarded to the Secretary by the fourteenth day of the month following the month to which the return relates.

(19) The holder of a permit must ensure that a return kept under subregulation (15) is made available for inspection by an authorised officer upon request.

17 Prescribed conditions of whale swim tour permits (1) In addition to the conditions set out in

regulation 16 for the purposes of section 83H of the Act, the conditions set out in this regulation are prescribed conditions for a whale swim tour permit.

(2) The holder of a permit must ensure that all persons on the tour vessel, other than employees of the permit holder, are under the direct supervision of a tour supervisor at all times during the whale swim tour.

(3) The holder of a permit must not conduct a whale swim within 100 metres of a low water mark.

(4) The holder of a permit must not conduct a whale swim within the Ticonderoga Bay Sanctuary Zone.

(5) The holder of a permit must ensure that the tour vessel does not approach closer than 100 metres to a whale or whales more than 5 times in a whale swim tour and not more than 10 times each day.

(6) The holder of a permit may conduct only one whale swim for each approach within the caution zone of a whale.

(7) The holder of a permit must ensure that a mermaid line is placed in the water before any person enters the water from the tour vessel.



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(8) The holder of a permit must ensure that any person who takes part in a whale swim tour from the tour vessel, who is not the permit holder or an employee of the permit holder, holds onto the mermaid line at all times while he or she in the water.

(9) The holder of a permit must, while in the water for the purposes of assisting a person taking part in a whale swim, remain within 10 metres of the mermaid line.

(10) The holder of a permit must ensure that his or her employees remain within 10 metres of the mermaid line while in the water for the purposes of assisting a person taking part in a whale swim.

(11) The holder of a permit must not reposition the tour vessel during a whale swim.

(12) The holder of a permit must not tow swimmers during a whale swim.

(13) The holder of a permit must—

(a) not enter the water from the tour vessel;

(b) ensure that no person enters the water from the tour vessel—

at a distance of less than 30 metres from a whale.

(14) The holder of a permit must ensure that no more than 10 persons, not including the permit holder or any of his or her employees, participate in a whale swim at any one time.

(15) The holder of a permit must not conduct a whale swim if a calf is present.

(16) The holder of a permit must ensure that if a whale swim has commenced and a calf is detected—

(a) all persons involved in the whale swim immediately reboard the tour vessel; and



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(b) the tour vessel withdraws to at least the prescribed minimum distance for that whale.

(17) The holder of a permit must ensure that a person who participates in a whale swim from the tour vessel does not use underwater breathing equipment other than a snorkel while the person is in the water.

(18) The holder of a permit must ensure that when all persons who participate in a whale swim are on board the tour vessel at the end of the whale swim, the mermaid line is retrieved immediately and the tour vessel withdraws outside the caution zone of the whale.

(19) The holder of a permit must ensure that, for each whale swim tour he or she conducts, the following information is recorded before any person disembarks from the tour vessel—

(a) the number of persons, other than the permit holder and his or her employees, on the whale swim tour who participated in the whale swim during that tour; and

(b) the time of day that each whale swim commenced and finished; and

(c) the location of the whale swim; and

(d) any other information required by the Secretary.

(20) The holder of a permit must ensure that the information recorded under subregulation (19) is included in the return kept under regulation 16(15) for the month in which the relevant tour is conducted.

(21) For the purposes of this regulation, a whale swim commences when a person first enters the water from the tour vessel.



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18 Offence to conduct seal tour: prescribed person For the purposes of section 85B(2) of the Act, a person who conducts a seal tour outside the minimum approach distance of a seal at a significant seal breeding colony or a protected seal breeding colony is a prescribed person in the prescribed circumstances.

19 Prescribed conditions of seal tour permits (1) For the purposes of section 85H of the Act, the

conditions set out in this regulation are prescribed conditions for a seal tour permit.



(3) The holder of a permit must ensure that signs are clearly posted on the tour vessel in places where all persons on the tour vessel are reasonably likely to see them, advising of the requirements of these Regulations and the conditions of the permit.

(4) The holder of a permit must ensure that before the tour vessel approaches a significant seal breeding colony or a protected seal breeding colony, all persons on the tour vessel are verbally advised of the requirements of these Regulations.



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(5) The holder of a permit must ensure that all persons on the tour vessel, other than employees of the permit holder, are under the direct supervision of a tour supervisor at all times during a seal tour.

(6) The holder of a permit must take reasonable steps to ensure that no person on the tour vessel breaches these Regulations.

(7) The holder of the permit must—

(a) subject to subregulations (b), (c) and (d), ensure that the tour vessel does not approach a seal within a distance of 10 metres, if the seal is on land;

(b) ensure that the tour vessel does not approach a seal at a significant seal breeding colony within a distance of 10 metres;

(c) ensure that the tour vessel does not approach a seal at a protected seal breeding colony within a distance of 50 metres during the seal breeding season;

(d) ensure that the tour vessel does not approach a seal at a protected seal breeding colony within a distance of 30 metres outside the seal breeding season.

(8) The holder of a permit must ensure that the tour vessel moves at a constant speed not exceeding 5 knots if within the minimum approach distance of a seal at a significant seal breeding colony or a protected seal breeding colony. Note

The minimum approach distances in the case of seals are set out in regulation 7.



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(9) The holder of a permit must ensure that the tour vessel does not make sudden changes in speed or direction within the minimum approach distance of a seal at a significant seal breeding colony or a protected seal breeding colony.

(10) The holder of a permit must ensure that if a seal shows any signs of disturbance, the tour vessel is immediately moved outside the minimum approach distance of a seal at a significant seal breeding colony or a protected seal breeding colony. Note

Examples of signs of disturbance are set out at the foot of regulation 8(2).

(11) The holder of a permit must ensure that the tour vessel does not come between a mother seal and a seal pup.

20 Prescribed fees for tour permits (1) For the purposes of section 83GE of the Act, the

prescribed fee payable for a whale watching tour permit that specifies that the holder may conduct tours from an aircraft is an amount equal to 25 fee units for each year of the period for which the permit is granted.

(2) For the purposes of section 83GE of the Act, the prescribed fee payable for a whale watching tour permit that specifies that the holder may conduct tours from a tour vessel is an amount equal to 21 fee units for each year of the period for which the permit is granted.

(3) For the purposes of section 83GE of the Act, the prescribed fee payable for a whale swim tour permit is an amount equal to 45 fee units for each year of the period for which the permit is granted.



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(4) For the purposes of section 85E of the Act, the prescribed fee payable for a seal tour permit is an amount equal to 21 fee units for each year of the period for which the permit is granted.

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SCHEDULES

SCHEDULE 1

Regulations 7(4), 18, 19(4), 19(7), 19(8), 19(9), and 19(10)

SIGNIFICANT SEAL BREEDING COLONIES

1. Seal Rocks, Phillip Island.

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SCHEDULE 2

Regulations 7(3), 7(5), 7(7), 18, 19(4), 19(7), 19(8), 19(9) and 19(10)

PROTECTED SEAL BREEDING COLONIES

1. Cape Bridgewater.

2. Lady Julia Percy Island.

3. Rag Island, Cliffy Group.

4. The Skerries, Croajingolong National Park.

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SCHEDULE 3

Regulation 14(1)

LOGAN'S BEACH EXCLUSION ZONE

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SCHEDULE 4

Regulations 6(1), 16(12) and 17(4)

TICONDEROGA BAY SANCTUARY ZONE

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SCHEDULE 5

SEAL ROCKS, PHILLIP ISLAND

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SCHEDULE 6

CAPE BRIDGEWATER

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SCHEDULE 7

LADY JULIA PERCY ISLAND

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SCHEDULE 8

RAG ISLAND, CLIFFY GROUP

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SCHEDULE 9

THE SKERRIES, CROAJINGOLONG NATIONAL PARK

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ENDNOTES

Fee Units

These Regulations provide for fees by reference to fee units within the meaning of the Monetary Units Act 2004.

The amount of the fee is to be calculated, in accordance with section 7 of that Act, by multiplying the number of fee units applicable by the value of a fee unit.

The value of a fee unit for the financial year commencing 1 July 2009 is $11.69. The amount of the calculated fee may be rounded to the nearest 10 cents.

The value of a fee unit for future financial years is to be fixed by the Treasurer under section 5 of the Monetary Units Act 2004. The value of a fee unit for a financial year must be published in the Government Gazette and a Victorian newspaper before 1 June in the preceding financial year.

Penalty Units

These Regulations provide for penalties by reference to penalty units within the meaning of section 110 of the Sentencing Act 1991. The amount of the penalty is to be calculated, in accordance with section 7 of the Monetary Units Act 2004, by multiplying the number of penalty units applicable by the value of a penalty unit.

The value of a penalty unit for the financial year commencing 1 July 2009 is $116.82.

The amount of the calculated penalty may be rounded to the nearest dollar.

The value of a penalty unit for future financial years is to be fixed by the Treasurer under section 5 of the Monetary Units Act 2004. The value of a penalty unit for a financial year must be published in the Government Gazette and a Victorian newspaper before 1 June in the preceding financial year.

Documents

Wildlife (Marine Mammals) Regulations 2009...In other words, human interactions with marine mammals need to be sustainably managed, in order to maintain populations of large whales,