WA's recreational fishing lobby Recfishwest has slammed a decision by the Department of Fisheries to continue legal action in the Supreme Court against a Perth crayfisher alleged to have gone over his catch limit.
Bret Carter was diving with two friends in the Shoalwater Marine Park in November 2014 when, according to a Supreme Court judgement, two Fisheries officers witnessed his friend surface with a bag of crays, measure some and place others back.
Mr Carter surfaced minutes later and claimed he went to do the same thing, but as he boarded the vessel, was intercepted by Fisheries officers.
He was found with 25 crayfish in his possession – 17 more than the legal daily limit of eight per person - and subsequently charged.
His charge of taking lobster in excess of the daily limit was thrown out by a Magistrates Court in 2016 with the judge determining Mr Carter had not yet 'taken' the lobsters when Fisheries intervened, but Fisheries appealed the decision to the Supreme Court.
They argued, under the Fish Resources Management Act, a lobster is considered 'taken' at the time it is snared.
Fisheries was allowed an appeal by Judge Joseph McGrath last Thursday, meaning the matter will return to the Magistrates Court to determine the outcome.
The case has sparked significant debate online amongst WA fishers, and Recfishwest posted on its Facebook page on Wednesday that it wanted to put forward its position on the matter.
"Recfishwest believe that people diving for crays must be afforded the same rules as those who use pots and be given a reasonable opportunity of five minutes to sort their catch when they return to the boat," the group said.
"This would allow divers to accurately check for spawning conditions such as fine hairs on setose lobster whilst out of the water.
"It is the view of Recfishwest that within the bounds of sustainability and in order to maximise recreational fishing experiences, management arrangements for this recreational-only component of the fishery should have significant input from the users themselves."
Fisheries Recreational Fishing for Rock Lobsters guide states, "if diving for rock lobster, you must stop fishing immediately when the bag limit is reached" - which WAtoday understands was added after the incident.
Mr Carter, however, argued that he had not yet completed the process of 'taking' the lobster when Fisheries questioned him, and that not all the lobsters were his.
His friend gave evidence that he had placed six or seven lobsters in Mr Carter's catch bag while they were diving together, as he did not have his own bag.
"The respondent stated that he intended to sort the rock lobsters and select eight to keep," the judgement read.
Fisheries officer Natasha Demir said, in her opinion, a lobster was 'taken' once it was captured underwater and that an assessment of whether it is a protected lobster must be made within five minutes.
However, Mr Carter's friend who he dove with on the day said visibility was at five to ten feet and that they were unable to properly assess whether a rock lobster was protected (undersized) while in the water.
Recfishwest said the case against Mr Carter should be dropped.
"We always believed there has to be a better way to resolve this case than through the legal system simply to satisfy the legislative curiosity of a government department. We've been calling on the Division of Fisheries to work with the community to clarify the rules on this matter over the last year.
"If the law does not clearly state how you are allowed to fish then it is not a good law and needs to be changed - it's as simple as that.
"Recfishwest will be writing to Minister Kelly requesting changes to this regulation prior to the start of the 2017/18 Rock Lobster season."
- with Heather McNeill
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