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Decision relating to a request for the making of a

waterway rule – Gippsland Lakes – Lakes Transit

Only Zone

Waterway: Gippsland Lakes – Lakes Entrance

Waterway manager: Gippsland Ports Committee of Management Inc

Waterway rule decision: 245-2014-WR

Decision made by: Rachel Gualano.Acting Director Maritime SafetyDelegate of the Director, Transport Safety

Date of decision: 22/3/2018

This document is a summary provided for information purposes only. No warranty or representation is made that the data or information contained in this document is accurate, reliable, complete or current or that it is suitable for a particular purpose. This document should not be relied upon as a substitute for the relevant legislation, legal or professional advice.

Published by Transport Safety VictoriaLevel 15, 121 Exhibition StreetMelbourne, Victoria 3000Telephone: 1800 223 022© Copyright State Government of Victoria 2014.This publication is copyright. No part may be reproduced by any process except in accordance with the provisions of the Copyright Act 1968.Authorised by the Victorian Government, Melbourne

1. The Waterway Manager and the Waterway

1.1 The appointed waterway manager for the Local Port of Gippsland Lakes In accordance with Section 6 of the Marine Safety Act, 2010, the Minister for Ports, by Order published in the Government Gazette, has declared Gippsland Ports Committee of Management Inc. to be the appointed waterway manager for the waters of the Local Port of Gippsland Lakes.

The current waterway rules for Gippsland Lakes –are detailed in Schedule 104 of the Notice under Section 15(2) of the Marine Act 1988 (Vic) and Section xxx of the Marine Safety Act 2010.

1.2 The Nature of the WaterwayTransit Only Zone – Entrance to the Port of Gippsland LakesThe Local Port of Gippsland Lakes is a very popular boating destination, attracting commercial and recreational powered vessels, sailing vessels, PWC’s and paddle craft all taking part in numerous activities including towed water sport’s, commercial and recreational fishing (including prawning) and sightseeing to isolated locations only accessible by water.

The Gippsland Lakes and the associated ocean access entrance attracts a number of associated maritime business pursuits such as offshore and lake charter operations and recreational hire and drive opportunities. Lakes Entrance is the home of the State’s largest commercial fishing fleet, and offshore support vessels servicing the Bass Strait oil and gas fields.

Depths at the Entrance to the Gippsland Lakes are maintained by the Tommy Norton, a Trailing Suction Hopper Dredge on the Bar and Entrance Channel and a 29m Cutter Suction Dredge on the Inner Channels including The Narrows, Reeve Channel, Hopetoun Channel and Cunninghame Arm.

It is not uncommon that all vessel activity explained above can occur simultaneously in the waters near the entrance to the Gippsland Lakes.

The Local Port of Gippsland Lakes covers 420 square kilometres from Sale to Lakes Entrance, and has been providing dredged ocean access to Bass Strait since the entrance was opened in 1989.

Due to increasing vessel traffic Gippsland Ports Committee of Management Inc. is proposing to establish a vessel Transit Only Zone near the entrance to the Gippsland Lakes covering parts of:

Reeve Channel downstream of the entrance to North Arm (The Narrows), The entrance to Cunningham Arm, The eastern entrance to Hopetoun Channel, The Entrance Channel between the training walls, and The waters within the dredging footprint of the Lakes Entrance Bar extending 600

metres off shore and with a width of approximately 450 metres.

The proposed Transit Only Zone includes an important confluence of 4 waterway channels and is one of the busiest vessel traffic areas of the Gippsland Lakes.

Waterway Rule Decision of 36Schedule104 Gippsland Lakes –Lakes Transit Only Zone 13 March 2018

Vessels not only access coastal waters from Reeve Channel, Cunningham Arm and Hopetoun Channel but also use the waters for transiting between the various channels and the Gippsland Lakes systems. Dredging operations are required to maintain depth and ocean access in this area and significant dredging infrastructure is permanently established within the proposed transit only zone.

Vessels using the proposed transit only zone area include; Commercial Fishing Vessels from 5 to 25 metres in length. Commercial offshore support, towage and cargo vessels from 12 to 35 metres in

length. A 60 metre Trailing Suction Hopper Dredge and 29 metre Cutter Suction Dredge. Commercial Passenger vessel from 6 to 25 metres in length. Commercial Charter vessels for offshore sports fishing activities from 7 to 16 metres

in length. Commercial Hire and Drive vessels from 4.5 to 16 metres in length. Visiting, sailing and motor yachts transiting between Ports and Interstate from 10 to

35 metres in length. Recreational offshore sports fishing vessels. Recreational motor cruisers and yachts from 5 to 25 metres in length. Recreational fishing and water sport’s vessels mostly less than 7 metres in length. Recreational PWC’s. Ever increasing paddle craft traffic both recreational and commercial hire.

Prawn fishing both commercial and recreational occurs within the area of the proposed Transit Only Zone with the highest concentration of prawning activity being in the Hopetoun and Reeve Channels near their confluence with the Entrance Channel.

Prawning activities occur at night during the flow of the ebb tide, running out through the entrance and over the Lakes Entrance Bar.

The waterway rules proposed by Gippsland Ports seeks to prohibit anchoring or drifting in the Transit Only Zone as well as the deployment of any fishing equipment.

Although Lakes Entrance has a reasonably small tidal range of 1.5 metres (HAT to LAT) the areas near the ocean access entrance are subjected to significant tidal flows of typically 3 to 4 knots and can reach up to 6 knots at times in the Entrance Channel.

1.3 History of the waterway rulesThe waterway rules for the Local Port of Gippsland Lakes, inclusive of the Reeves Channel, Cunningham Arm, Hopetoun Channel and the Entrance, are contained in Schedule 104 of the Vessel Operating and Zoning Rules, and have been in place since 1988, when Gippsland Lakes was then under the control of the Port of Melbourne Authority. The waterway rules covering Gippsland Lakes are extensive covering speed restrictions, vessels prohibited areas, exclusive use and special purpose areas, which reflect a variety of boating activities that occur on the waterway.

The relevant rules covering the Reeves Channel, the Hopetoun Channel and the Entrance proposed rules are detailed in clauses 104.4(c) (10 knot speed limit on the waters of Reeves Channel) and 104.3(r) (5 knot speed limit on the waters of Reeves Channel).

The rules proposed by Gippsland Ports Committee of Management Inc. seek to establish a transit only zone for certain sections of the Reeves Channel, Hopetoun Channel Cunningham Arm and the Entrance.


2. Application to make waterway rules

On 11 September 2014 Gippsland Ports Committee of Management Inc. submitted a Notice of Intention to Request a Waterway Rule1 (Notice) to the Director, Transport Safety.

The proposal submitted by Gippsland Ports Committee of Management Inc. aims to introduce waterway rules that create waterway rules for inclusion in Schedule 104 of the Vessel Operating and Zoning Rules, specifically to create an area in the Reeves Channel-The Narrows, the eastern end of the Hopetoun Channel, the western end of Cunningham Arm and the Entrance as a designated as a Transit Only Zone.

3. Marine Safety Act requirements for waterway rule making

The Marine Safety Act 2010 details the process that must be followed when a port management body, local port manager or waterway manager proposes to introduce or amend waterway rules.

Section 193 of the Marine Safety Act 2010 details the process and considerations for assessment of a Notice of Intention to Request a Waterway Rule

Initial consideration and advice by Safety Director in relation to certain requests

(1) Before making a request for the making of a rule under section 194, a port management body, local port manager or waterway manager must notify the Safety Director of the body's or manager's intention to make the request.

(2) A notification under subsection (1)—(a) must be in writing; and(b) must contain the following information—

(i) the name and address of the body or manager; and(ii) a description of the rule that the body or manager proposes be

made; and(iii) a statement of the nature and scope of the matter that is

proposed to be addressed and an explanation of how the proposed rule would address the matter; and

(c) may be accompanied by a draft of the proposed rule.(3) On receiving a notification under subsection (1), the Safety Director must—

(a) consider whether the rule that is proposed to be requested—(i) appears to be within the powers conferred on the Safety

Director to make the rule; and(ii) is of a material nature or a non-material nature; and

(b) within 2 weeks after receiving a notification under subsection (1)—(i) advise, in writing, the port management body, local port

manager or waterway manager of the matters under subsection (5), (6) or (7), as the case requires; and

(ii) publish notice of the advice in the Government Gazette.(4) An advice under this section must set out the reasons of the Safety Director

as to the matters under subsection (5), (6) or (7), as the case requires.(5) If the Safety Director is of the view that the rule that is proposed to be

requested appears to be within the powers conferred on the Safety Director to make the rule and is of a material nature, the Safety Director must advise the port management body, local port manager or waterway manager—(a) of that view; and

1 MSA s193 (1) and (2)


(b) that it must comply with section 196 before making a request for the making of the rule under section

(6) If the Safety Director is of the view that the rule that is proposed to be requested appears to be within the powers conferred on the Safety Director to make the rule and is of a non-material nature, the Safety Director must advise the port management body, local port manager or waterway manager—(a) of that view; and(b) that it is not required to comply with section 196 before making a

request for the making of the rule under section 194.(7) If the Safety Director is of the view that the rule that is proposed to be

requested does not appear to be within the powers conferred on the Safety Director to make the rule, the Safety Director must advise the port management body, local port manager or waterway manager of that view.

Section 188 of the Marine Safety Act 2010 requires that reasons must be given for making or not making a rule:

(1) The Safety Director must publish his or her decision whether to make a rule under section 184 on the Safety Director's Internet site.

(2) A decision that is published under subsection (1) must contain a statement of the reasons of the Safety Director for making or not making the rule, including—(a) a description of the matter that was addressed by the request or

proposal for the making of the rule; and(b) the Safety Director's conclusions after having regard to the mandatory

considerations.Section 187(1) of the Marine Safety Act 2010 requires that when making a rule:

the Safety Director must have regard to—(a) the mandatory considerations; and (b) if the rule is being made following a request from a port management body,

local port manager or waterway manager, the summary of submissions or comments received by that body or manager under section 194.

Mandatory Considerations are defined in section 183 Definitions of the Marine Safety Act 2010. In relation to a proposed waterway rule, mandatory considerations means —

(a) the safety risk, or the nature and level of a safety risk, that the proposed rule is intended to minimise or eliminate;

(b) whether there are alternative ways (legislative or otherwise) to address the matter being or to be addressed by the proposed rule;

(c) the expected benefits and costs of the proposed rule on those persons likely to be affected by the proposed rule, if made;

Section 196 of the Marine Safety Act 2010 requires a waterway manager to consult before requesting rule:

(1) Subject to this Part, before requesting the making of a rule under this Part, a port management body, local port manager or waterway manager must invite submissions and comments in relation to the proposed request from the public in accordance with this section.

(2) The port management body, local port manager or waterway manager must—(a) publish notice of the proposal to request the making of a rule—

(i) in a newspaper circulating generally throughout the State; and(ii) on the body's or manager's Internet site; and


(b) make copies of the proposal available to the public on the body's or manager's Internet site and at the body's or manager's offices or principal place of business during business hours free of charge.

(3) A notice under subsection (2)(a) must—(a) include a summary of the proposal; and(b) specify the date by when a submission or comment must be made to

the port management body, local port manager or waterway manager; and

(c) specify how a submission or comment must be made; and(d) specify that copies of the proposal are available on the body's or

manager's Internet site and at the body's or manager's offices or principal place of business during business hours free of charge.

(4) The period of time between publication of the notice and the date specified in the notice must not be less than 4 weeks.

(5) The port management body, local port manager or waterway manager must, in formulating its request for the making of a rule, take into account every submission or comment it receives by the date specified in the notice under subsection (2)(a).

Section 194 of the Marine Safety Act 2010 – Requests for waterway rules

(3) A request for the making of a rule—(a) must be in writing; and(b) must contain the following information—

(i) the name and address of the body or manager making the request; and

(ii) a description of the rule that the body or manager proposes be made; and

(iii) a statement of the nature and scope of the matter that is proposed to be addressed and an explanation of how the proposed rule would address the matter; and

(iv) an explanation of how the proposed rule addresses the mandatory considerations; and

(v) in the case where a port management body, local port manager or waterway manager has been advised of the matters under section 193(5)—(A) a list of submissions and comments received under

section 196; and(B) a summary of the matters raised in the submissions

and comments received under section 196; and(C) how the port management body, local port manager or

waterway manager has taken into account the submissions and comments that address the mandatory considerations; and

(c) must be accompanied by a draft of the proposed rule.


4. Safety Director’s assessment of the Intention to Request a Waterway Rule.

After assessing 2 the Notice of Intention to Request a Waterway Rule received from Gippsland Ports Committee of Management Inc, I, Peter Corcoran, Director Maritime Safety, as a delegate of the Director, Transport Safety, determined that the proposed rules were:

within the powers of the Safety Director to make a rule, and

of a material nature.

Given the determination that the request was within the powers of the Safety Director and was material in nature, Gippsland Ports Committee of Management was required to undertake the following public consultation3:

publishing a notice of the proposed rule in a newspaper circulating generally throughout the state,

inviting comments,

publishing details of the proposal on the waterway manager’s internet site,

making copies available to the public, and

allowing at least 4 weeks for receiving submissions.

5. Waterway manager’s public consultation

The following details of Gippsland Ports Committee of Management Inc. proposal were made available for discussion:

to establish a transit lane zone for certain sections of the Reeves Channel, the Hopetoun Channel and the Entrance Channel where the master or person in charge of a vessel must not use the zone other than for transiting and must not permit the vessel to be anchored or drift in the zone.

Gippsland Ports Committee of Management Inc. undertook the required public consultation in relation to the new waterway rules from 3 September 2014 until 31 October 2014

6. Request to make waterway rules from the waterway manager

The Request for Making a Waterway Rule (Request) was received by Maritime Safety Victoria (MSV) on 24 August 2015. A copy of the Request is provided in Appendix 1.

In making its request for waterway rules Gippsland Ports Committee of Management Inc. was required to:

provide a description of the proposed rule and if it was amended following the public consultation,

address the mandatory considerations,

2 Required under s193 (3) MSA3 MSA s196


provide a list of submissions and detail matters raised in submissions, and

to explain how the waterway manager has taken into account the submissions and comments in addressing the mandatory considerations.

Gippsland Ports Committee of Management Inc. submitted the Request in writing, with the required information including a draft of the proposed waterway rule.

Delays in the finalising of the waterway rule application have been due to the assessment of the previous rule establishing a 5 knot speed limit from sunset to sunrise in the Hopetoun Channel, and aligning the new rules with the prawning season to give adequate time for implementation.

6.1 Description of proposed waterway ruleGippsland Ports Committee of Management Inc. submitted the following proposed rules;

Transit Only Zone. The operator, master or person in charge of any vessel, other than vessels berthed in areas set aside for the purpose of berthing at Bullock Island Wharf, Reeves Landing, Drews Jetty must not use the Transit Only Zone other than for transiting of the vessel through the specified area and must not allow any vessel to;

o be anchored in the zone; or o drift within the zone; or o be used to deploy fishing equipment of any description within the zone.

The proposed rules differ from those originally proposed by Gippsland Ports Committee of Management Inc.

The introduction of a rule restricting the deployment of fishing equipment was not included in the Notice of Intention to Request a Waterway Rule and is proposed as a result of the required public consultation and review. The amended rule seeks to ensure that high risk activities will be controlled.

Amendments to the geographical area covered by the Transit Only Zone address concerns in the community that the original intention would unnecessarily impact upon prawning activities and berthing in certain areas. The proposed rule allows for access to the berths listed below which were originally included in the Transit Only Zone.

Bullock Island Berth. To be used by the Gippsland Ports dredge (the Tommy Norton upon arrival next month) to berth permanently. The berth is designated red zone which requires a permit. No other vessels can use this facility unless under permit.

Drews Jetty. Zoned half white (48-hour itinerant stay) and half blue (4 hours stay from 0600 am to 2000 pm) The berth is subject to very strong tidal flow during the ebb and flood tides and is not commonly used.

Reeves Landing. Zoned white (48-hour itinerant stay) – this jetty is virtually never used for a berth due to strong tidal flows and open to swell, however the jetty is well used by tourists wishing to fish or catch crabs.

In addition to the above amendments to the Transit Only Zone, Gippsland Ports Committee of Management Inc. has proposed that the zone extends seaward of the entrance. In support of this proposal Gippsland Ports Committee of Management Inc. has taken into account the operations of the dredge and the current Harbour Masters Directions which require vessels to keep clear of the dredge in the Narrows and on the Lakes Entrance Bar, that vessels must maintain a distance of 100 metres of any vessel proceeding in the same


direction, and that inbound vessels have right of way.These directions and the often tretcherous sea conditions on the Lakes Entrance Bar are a justification for the amended Transit Only Zone area.

Appendix 2 details the initially proposed Transit Only Zone area. Appendix 3 details the final proposed Transit Only Zone area.

The amendments to the proposed rules are within the powers of the Safety Director to make a rule, and are of a material nature.

6.2 Mandatory considerations4

6.2.1 Safety risk the proposed rule is intended to minimise or eliminateGippsland Ports Committee of Management Inc. identified a number of safety risks and issues that the proposed waterway rules seek to address.

Gippsland Ports Committee of Management Inc. become aware of the existence of a hazard to public safety posed by commercial and recreational vessels anchoring, drifting and setting fishing equipment at night during ebb tide within the proposed area. The area is also popular for sightseeing or other on-water activities.

The area described in the proposal is subject to high vessel traffic flows, is restricted in navigability due to its narrow width and subject to strong tidal flow due to its proximity to the entrance. The area is popular with PWCs, fishing vessels, sightseeing vessels, human powered vessels, sailing vessels and commercial vessels. This renders the area unsafe for activities requiring anchoring, drifting and the setting of fishing equipment.

Recreational vessels anchor in large numbers at night to 'dip' for prawns in Reeves Channel and Hopetoun Channel. Commercial operators are known to set stake nets and crab pots in the vicinity of the entrance to Hopetoun Channel. Both channels are narrow and subject to strong tidal flows, particularly the ebb tide.

The described practises above occur:

at night (and dark nights around new moon which are recognised as best for prawning)

during the ebb tide very close to the ocean entrance and associated Laker Entrance Bar during peak boating season

The likelihood of collision and entanglement are elevated by the restricted area and reduced visibility at night while the consequences of a collision or loss of propulsion due to entanglement are potentially fatal due to the very strong currents present in the area during the ebb tide and the proximity to the Lakes Entrance Bar.

Gippsland Ports Committee of Management Inc. in conjunction with Transport Safety Victoria, Gippsland Water Police and local Fisheries Officers have conducted a risk assessment (Appendix 4) on the practise and believe that a prohibition of anchoring within the prescribed area will mitigate the current risks while maintaining viable alternative areas in which to pursue prawns in both a recreational and commercial capacity.

The proposed rule would minimise the risk of entanglement and collision in this area by prohibiting the described activities occurring inside this particularly dynamic and high-risk

4 MSA s187 (1) (a)


area. Other areas outside the proposed zone are still productive fishing areas but do not carry the same inherent risks.

This application is being made by Gippsland Ports Committee of Management Inc. in conjunction with a series of other applications which are being made with the purpose of enabling prawn fishing to continue in the Hopetoun Channel area with appropriate safety controls in place.

6.2.2 AlternativesGippsland Ports Committee of Management Inc. believes that there are no alternative ways of providing a safe environment for all user’s other than by introducing new waterway rules.

Gippsland Ports Committee of Management Inc. has undertaken a risk assessment which deemed that there were no other appropriate ways to address the identified safety issues.

Increasing boating activity in this area increases the likelihood and consequences of an incident. It was agreed by relevant agencies who took part in the risk assesment, that to 'do nothing' (status quo) is not an option.

Many variations to the boundary of the proposed zone were considered during the process, with input from various stakeholders taken into account prior to developing the final Transit Only Zone boundary. Gippsland Ports Committee of Management Inc. believes the current proposal represents a balance between maximising public safety in the area while also maximising amenity potential catch for commercial operators.

Many of the behaviours this rule change is intended to control are currently unlawful under the Marine Safety Act 2010 and the Collision Regulations. During the public consultation phase, it became apparent that a large proportion of users were unfamiliar with their obligations under these rules and the addition of the Transit Only Zone is intended to reinforce the regulations and to remove any ambiguity for waterway users.

6.2.3 Benefits and costs Gippsland Ports Committee of Management Inc. in the Request believes that the new waterway rules will lead to significant reduction in risk to vessel traffic both recreational and commercial while maintaining a healthy and viable prawn fishery.

The costs identified by Gippsland Ports Committee of Management Inc. are that the proposed rule change will require a very low number of local professional fishermen to relocate their activities from the area east of Drews Jetty to another location. This area is not the only area available to, or used by, fishermen and Gippsland Ports Committee of Management Inc. believe the safety risks to all channel users that are associated with this particular activity far outweigh the benefits to very low numbers of fishermen.

Gippsland Ports Committee of Management Inc. believes that the benefits of introducing new waterway rules to address vessel safety issues far outweigh any other associated costs.

6.3 How the waterway manager has taken into account the submissions and comments

Gippsland Ports Committee of Management Inc. received 8 submissions in relation to the proposed waterway rules.


Of the 8 submissions received, 5 were opposed to the proposed rule, two were generally supportive and one generally supportive, with the exception of a small area due to the perceived importance of this area to commercial fishing.

The 5 submissions that were unsupportive of the proposal were practically identical in their concerns which can be summarised under two headings:

IMPACT ON COMMERCIAL PRAWN FISHERY

The area east of Drews Jetty which is encompassed by the proposed transit only zone is considered by the authors of these submissions to be one of the most productive areas in which to catch prawns. There was general concern about the potential economic impact the closure of this area may have in the local community.

One submission raised the concern that the displacement of the one commercial fisherman who regularly uses the area east of Drews Jetty would result in congestion in other areas.

There was general consensus that prawn fishing in this area was of some historical significance.

IMPACT ON RECREATIONAL PRAWN FISHERY

Three of the five submissions opposing the proposed rule had concerns relating to recreational prawn fishing. It was argued that the Transit Only Zone would prevent recreational prawn fishing occurring in a traditionally productive area which in turn would have a negative impact on the local tourism sector.

After closure of the public consultation period, Gippsland Ports Committee of Management Inc. convened a series of meetings with interested members of the local community and relevant agencies including Gippsland Water Police, Transport Safety Victoria and Fisheries Victoria

The main sources of contention were:

The closure of the area east of Drews Jetty and the subsequent impact on the commercial prawn fishery.

The lack of opportunity for recreational prawn fishing in Reeves and Hopetoun Channels caused by the proposed rule.

GIPPSLAND PORTS COMMITTEE OF MANAGEMENT INC RESPONSE TO SUBMISSIONS

The area east of Drews Jetty was identified during the risk assessment as the most hazardous area for vessels to be engaged in fishing due to the extremely high tidal flow, narrow channel width and close proximity to the entrance and bar.

This particular location is by tradition only used by one local fisherman and certainly can only be utilised by one commercial fisher at a time. Given the level of risk identified in the risk assessment Gippsland Ports Committee of Management Inc. with the support of Gippsland Water Police and Fisheries Victoria, believe the risk involved in fishing this area far outweighs the commercial benefit gained by the one commercial fishing venture that utilises this area. Gippsland Ports Committee of Management Inc. believe there are ample alternative locations in both Reeves and Hopetoun Channels to accommodate the displacement of one fisherman.


7. Compliance with Marine Safety Act waterway rule making process

Gippsland Ports Committee of Management Inc. has complied with the requirements of the Marine Safety Act 2010.

Gippsland Ports Committee of Management Inc. has submitted a draft of the proposed waterway rule. The rule requires some minor editing prior to publication in the Government Gazette and on the Safety Directors internet site.

8. The Safety Director's conclusions in making a decision whether to make or not make a waterway rule

In making a decision as a result of a request to make a waterway rule the Safety Director must have regard to;

the mandatory considerations, and the summary of submissions or comments received.

8.1 Mandatory considerations

8.1.1 Safety risk the proposed rule is intended to minimise or eliminateGippsland Ports Committee of Management Inc. has identified numerous safety issues which the new waterway rule seeks to address.

The area is popular with PWCs, fishing vessels, sightseeing vessels, human powered vessels, sailing vessels and commercial vessels.

Recreational vessels anchor in large numbers at night to fish for prawns in Reeves Channel and Hopetoun Channel. Commercial operators are known to set stake nets and crab pots in the vicinity of the entrance to Hopetoun Channel. Both channels are narrow and subject to strong tidal flows.

The described practises above occur:

at night (and dark nights around new moon which are recognised as best for prawning)

during the ebb tide close to the ocean entrance and associated Lakes Entrance Bar during peak boating season

The proposed Transit Only Zone is subject to high vessel activity, with a limited navigable area due to its narrow width (especially in the Hopetoun Channel and Reeve Channel) and strong tidal flows due to its proximity to the Entrance.

The tidal affects in the proposed Transit Only Zone greatly impact on the amount of navigable water at the eastern end of Hopetoun Channel and the lower reaches of Reeve Channel at the Narrows. This lessening of navigable water can impact on the safe operation of vessels and is increased by other vessels either anchored, drifting or fishing with deployed gear.

The chance of a drifting vessel or a vessel at anchor impacting the safe navigation of other vessels increases at night. This is particularly the case when strong tidal flows require vessels to navigate on specific transits with limited navigable water.


Vessels operating in this area which are drifting are limited in their ability to take avoidance action when vessels operating in the area are required to be under power to ensure safe navigation and transit. In particular, vessels anchored pose an additional risk due to their inability to take avoidance action.

Given the current high usage of the area and environmental characteristics the consequence of a collision between a vessel under way and making way and a drifting, anchored or fishing vessel with deployed gear.is high. This is particularly the case at low tide or when strong tidal flows require vessels to navigate on specific transits with limited navigable water.

Possible entanglement with fishing gear by vessels operating in the area, drifting and vessels engaged in fishing activity may result in the loss of propulsion. The resulting reduction in navigability increases the likelihood of collision or serious incidents.

Although all these safety issues are in existence at all times they are increased during times when the level of boating increases due to seasonal conditions or when prawning and fishing activity increases.

Safety issues have been adequately identified by Gippsland Ports Committee of Management Inc. in the risk assessment in relation to commercial and recreational vessels anchoring, drifting and setting fishing equipment within the area especially at night during on an ebb tide.

The proposed rule would minimise the risk of entanglement and collision in this area by prohibiting drifting, anchoring and the deployment of fishing equipment inside this particularly dynamic and high-risk area. Other areas outside the proposed Transit Only Zone are still productive fishing areas but do not carry the same inherent risks.

This particular application is being made by Gippsland Ports Committee of Management Inc. in conjunction with a series of other waterway rules which are being made with the purpose of enabling commercial prawn fishing to continue in the Hopetoun Channel area with appropriate safety controls in place.

I also note that the final proposed rules by Gippsland Ports Committee of Management Inc. have taken account of the current berthing arrangements within the area affected and have amended the proposed Transit Only Zone to enable such activities to continue.

The proposal by Gippsland Ports Committee of Management Inc. to extend the Transit Only Zone seaward beyond the Entrance addresses a range of safety issues associated with vessels transiting the area and the dredging operations. The same safety issues as those identified within the transit zone inshore of the Lakes Entrance Bar apply to the Bar itself.

The Admirality Sailing Directions (NP14) referes that in certain weather conditions “vessels are faced with considerable risk, even with a moderate sea and favourable tidal conditions, when crossing it” (the Bar).

These safety issues togther with the often tretcherous sea conditions and breaking waves on the Lakes Entrance Bar are an appropriate justification for the amended Transit Only Zone area.

Gippsland Ports Committee of Management Inc. in its public consultation did not propose that the Transit Only Zone extend beyond the Narrows into Bass Strait and although on safety grounds the proposal is reasonable, I am of the belief that in this instance the area is included in the Transit Only Zone for a period of twelve months. During this twelve-month period Gippsland Ports Committee of Management Inc. will be required to monitor the area and invite feedback from users as to the appropriateness of the rule. Should this feedback


(in conjunction with an assessment of the safety risks) be supportive of the rule I will make the rule covering the extended Transit Only Zone a permanent rule.

After considering the safety issues I am of the view that the new waterway rule proposed by Gippsland Ports Committee of Management Inc. addresses the safety issues at Lakes Entrance.

Waterway rules which are reinforced by appropriate navigational aids, signage and informational materials represent an appropriate response to the safety issues identified.

8.1.2 Alternative ways to address risks and safety issuesGippsland Ports Committee of Management Inc. does not believe there are alternative measures other than waterway rules which could address the identified safety issues providing a safe environment for all users.

This view is supported by a risk assessment which supported this contention. The risk assessment also identified that 'do nothing' (status quo) was not an option.

Increasing boating activity in this area increases the likelihood and consequences of an incident.

Many of the current prawning activities are in breach of Collision Regulations, inherently unsafe and assessed as "high" risk and have resulted in incidents. Gippsland Ports Committee of Management Inc. in an additional waterway rule request has sought to address these issues.

Variations to the boundary of the proposed zone were considered during the process, with input from various stakeholders. The revised boundary of the Transit Only Zone represents a balance between maximising public safety in the area while also maximising amenity, potential catch for commercial operators and safe vessel navigation.

It is my belief that the proposed rules are the most appropriate response to the identified safety issues and will create a safer operating environment.

8.1.3 Benefits and costsGippsland Ports Committee of Management Inc. in the Request believes that the benefits of introducing new waterway rules to address vessel safety issues far outweigh any other associated costs.

The new waterway rules will lead to significant reduction in risk to vessels both recreational and commercial while maintaining a healthy and viable prawn fishery.

The costs of the introduction of the waterway rule will directly impact one professional fisherman (who operates in an area east of Drews Jetty) within the proposed Transit Only Zone who will be required to relocate. Other fishermen who operate within the Hopetoun Channel may have to relocate to accommodate the affected operator.

Gippsland Ports Committee of Management Inc. has noted that the area to the east of Drews Jetty is not the only area available to, or used by, fishermen.

In considering the costs and benefits of the proposed rule I believe that the safety benefits outweigh the identified cost to current operators and users of the area. Prawning with the associated outlying gear required to undertake prawning, (often extending 25 metres from the vessel into the channel) presents an unreasonable risk to other vessel operators in the area directly east of Drews Jetty especially on ebb tide when the area of navigable water is greatly reduced.Waterway Rule Decision of 36Schedule104 Gippsland Lakes –Lakes Transit Only Zone 13 March 2018

It is my belief that the benefits of the new waterway rules outweigh any of the identified costs.

8.2 Summary of submissions or comments5

Gippsland Ports Committee of Management Inc. received 8 submissions in relation to the proposed waterway rules. 5 were opposed to the proposed rule, two were generally supportive and one generally supportive with the exception of a small area (Drews Jetty) due to the perceived importance of this area to commercial fishing.

It is of note that after closure of the public consultation period, Gippsland Ports Committee of Management Inc. held a series of meetings with interested members of the local community and relevant agencies including Gippsland Water Police, and Fisheries Victoria as part of an additional consultation process.

The negative submissions mainly related to any restriction on prawn fishing in Reeves Channel and Hopetoun Channel and in particular the affect on a single commercial operator who operates in the area east of Drews jetty (in an area that only one fisherman can use at any one time) and any subsequent impact on the commercial prawn fishery through the relocation of that operator in other areas of Hopetoun Channel.

Their appears to be general community agreement that the concept of a Transit Only Zone is one that addresses safety issues.

In taking into account submissions Gippsland Ports Committee of Management Inc. believes that the proposed rule the best way of addressing the identified safety issues despite the affects it will have on a single operator.

Gippsland Ports Committee of Management Inc. also believes the risks associated with fishing in the area east of Drews Jetty far outweighs the commercial benefit gained by the one commercial fishing operator that utilises this area and believes there are ample alternative locations in both Reeves and Hopetoun Channels to accommodate the displacement of one fisherman. I support this belief that the area east of Drews Jetty is a hazardous area for vessels to be engaged in fishing due to the high tidal flow, narrow channel width and close proximity to the entrance and presence of outlying fishing gear used in prawning operations.

I am of the belief that despite the possible affects on a single operator and the affects of this rule on activities in some parts of the Hopetoun Channel and Reeves Channel Gippsland Ports Committee of Management Inc. has taken account of the submissions and has proposed a waterway rule appropriate to address the safety issues.

5 MSA s187 (1) (b)


9. Safety Director’s Decision

I, Rachel Gualano, Acting Director Maritime Safety, delegate of the Director, Transport Safety, hereby advise6 that, after having regard to:

the mandatory considerations, and

submissions received in relation to the proposed rules, and

having taken into account the Objectives and Principles of the Transport Integration Act 2010 (Vic)

I have decided to make the waterway rule as requested by Gippsland Ports Committee of Management Inc. for the establishment of a Transit Only Zone covering sections of the Reeves Channel, Hopetoun Channel, Cunningham Arm and the Narrows. The rule covering the waters seaward of the Entrance will be made for a period of twelve months.

10. Reasons for Decision

Gippsland Ports Committee of Management Inc. has identified the safety risks to vessel operators and other waterway users and proposed a considered approach to addressing these risks while at the same time recognising the expected costs and benefits associated with the introduction of new waterway rules.

Given the current and projected waterway use, the proposed rule represents an appropriate response to address the safety issues on the waterway.

Gippsland Ports Committee of Management Inc. has undertaken the required public consultation including additional meetings and consultation and has adequately addressed the mandatory considerations (i.e. the safety risk, alternative ways of addressing the risk, and the associated benefits and costs).

Gippsland Ports Committee of Management Inc. has submitted a complete application for new waterway rules.

The final rule reflects due consideration of the safety issues for waterway users, and ensure a degree of access to the waterway by a variety of users after addressing safety issues.

It is of note that the risk assessment carried out by Gippsland Ports Committee of Management Inc. appropriately identified the risks, consequences and controls which has formed the basis for consultation and finalisation of the waterway rule.

The risk assessment is in support of a number of marine incidents that have occurred in the area covered by the Transit Only Zone since 2015. Three separate collision incidents and several vessel entanglements as a result of vessels contact with prawning equipment.

The rule application request in relation to commercial operators extending prawning equipment into the Hopetoun Channel will be finalised by early May 2018.

The rule will be published in the Government Gazette and on the Safety Director’s internet site, once the waterway manager has finalised installation of navigational aids and signage to reflect the changed waterway rules.

6 MSA s188


RACHEL GUALANO

Acting Director, Maritime SafetyDelegate of the Director, Transport Safety

Dated: 22/3/2018


Appendix 1 – Copy of the Request to Make a Waterway Rule


Appendix 2 – Initial proposed Transit-only zone

Waterway Rule Decision of 36Schedule104 Gippsland Lakes –Lakes Transit Only Zone 18 January 2018

Appendix 3 – Final proposed Transit-only zone


Appendix 4 – Gippsland Ports Risk Assessment


Waterway Hazard Risk Assessment

Port or waterway Gippsland Lakes

Location in port or waterway

Hopetoun Channel

GPS coordinates (include Datum used)

Map reference GL Boating guide

Chart affected AUS 182 Assessment date 11Jun2014

7Aug2014

People assessing Bevis Hayward - GP Harbor Master

GP - Shayne Clarke, David Talko Nicholas, Peter Bull, David Holding

Mark Fletcher, Bill McCarthy - DEPI Fisheries

Jenkin Steed, Graham Shoobert – Gippsland Water Police

Geoffrey Swanton – TSV

Waterway hazard type:

Stumps, trees, fences, signs , Rock/s , Sandbar, shoaling

Vessel or vehicle , Flood debris , Flotsam , Jetsam

Other (describe): Vessel and fishing activity in Hopetoun channel

Is the hazard Attached to or resting on the bottom or bank, Floating ,

Protruding above the surface and clearly visible to waterway users

Submerged or partially submerged and not clearly visible

Describe the waterway hazard

(attach photos, maps, survey

information, etc)

Scope is entire channel area where this activity occurs

Current stakenetting practice is an unlawful activity - VOZR 23b

Considered section from 5 knot zone seaward as higher risk due to channel narrowing and increased current velocity

Scope of this particular assessment is focused on commercial fishing, but recognizing that recreational fisherman also prawn in numbers in this channel and have an impact on risks

Prawn fishing gear on the surface, (66m of net + lines to anchors + buoys)

Other commercial fishing activity that could potentially be carried out in the area (although less likely in prawning season) – GL access License also allows; mesh nets up to 2300m (set); Haul seine up to 720m (in attendance); crab pots up to 1m3 (in attendance); seine up to 100m hand hauled, Spider crab traps; shrimp dredging; eel drum net

Night activity on ebb tides close to entrance channel

Entanglement with other vessels – loss of control/propulsion/MOB

Disabled Vessel could end up out the entrance and on bar

Authorisation: Organisational Risk Manager Version: 2 Current: Oct2014 Review: Oct2017

/tt/file_convert/606f4048736a094f54388788/document.docx


Mix of commercial / recreational activity

Lack of nautical local knowledge of area/activity

Confrontation

Legal compliance

Vessel moving through area at speed at night – increased traffic volume at night in season due to popularity of Barrier and other areas accessed via Hopetoun Channel.

Fatigue (night operations)

Is the hazard in a channel or fairway

Yes

Are there any vessel operating and zoning rules

that affect the area (eg. speed limit)

Section 23b

5 knots

No speed restriction between east of Barrier Landing to 5 knots zone near Egans Groyne

Primary use of the waterway area

Recreational Fishing (day & night), commercial fishing (prawning, night) vessels transiting between popular Barrier Landing and Lakes Entrance, recreational vessel activity, tourist charter boat operation, boat related camping at Barrier, towed water sports, PWC activity

Fairway to Entrance Channel / Cunninghame Arm / North Arm

Any other information to inform the risk

assessment

Previous meeting with Commercial Fishing Licence Holder

Marine Officer observing commercial fishing at night on-board commercial fishing vessel

Contact with Geoff Swanton TSV – advice includes if netting is to be allowed then rezoning to be considered.

History of use of the area for commercial and recreational prawning

Current practices are a breach of MSA/ColRegs/State Rules

Area east of Egans Groyne particularly recognised by GWP as high risk area for a fatality if an incident occurs

Meeting held between agencies (GP, GWP, TSV, DEPI-Fisheries) 7Aug2014 to discuss above and other risks and inform this assessment

Detail the waterway hazards and the risks to waterway users in the table on the following page

Use the Risk Assessment Tool on the last page to determine the consequences, their likelihood and risk level for each risk category identified (safety and environmental are the main risks that must be assessed)

Detail practicable additional treatment option/s to control the risk/s and their benefits

Assess the Residual risk (the risk remaining) after those controls are put into place




Activity(Access/egress, water

skiing, swimming zone, etc)

Stressor (type of

waterway hazard)

Effect (on waterway users,

on GP)

Risk Assessment Information(more detailed information about

cause and effect of the risk)

Current controls(what is currently being

done)

Risk Category(safety,

environmental, financial, legal,

reputation, business,

operational)

Inherent Risk

Risk treatment options (mitigation)(what further things needs to be done? What are the benefits?)

Residual Risk Assessment Information/comment

(more detailed information about cause and effect of the risk and any benefits of risk treatment)

Residual risk

Like

lihoo

d

Con

sequ

ence

Ris

k Le

vel (

E,

H, M

, L)

Like

lihoo

d

Con

sequ

ence

Ris

k Le

vel (

E,

H, M

, L)

Commercial and recreational prawn fishing activity within the Hopetoun Channel fairway

Current fishing practices are a breach of legislative requirements

Increased vessel activity in Hopetoun Channel at night by recreational vessels – both prawning and for transit

Impact on navigation GP responsibility to manage compliance with MSA and to manage compliance with PMA

Increased risks of collisions, entanglement in nets

GP liability arising from failure to exercise statutory duties as Waterway Manager

Past inaction by port managers to enforce compliance

Change in legislation over time

Increased activity leads to potential increased risks particularly where channel narrows seaward of Egans Groyne

Commercial Fishers have their own Code of Practice which allows for nets to encroach on up to 50% of a channel

Current stake net activity is a breach of ColRegs Rule 9 (c)

Past attempts to improve visibility of stake net gear

Consultation process with fisherman and other stakeholders

Past changes in zoning to regulate recreational prawners in Reeves channel

Legal

Like

ly 4

Mod

erat

e 3

Hig

h 12

Do nothing

Define the channel with improved/additional AToN (lights on existing and additional ‘gateway’ AToN)Change zoning (transit only zone, modified 5 knot zone boundaries and night time restrictions) in consultation with stakeholders and TSVEnforce compliance with current / changed VOZR for both commercial and recreational fisherman and vessels transiting

Fishermen to revise their Code Of Practice to remove or replace the line… “(ii) All prawning equipment including anchor lines shall occupy no more than 50% of navigable channel”

Education program for rec fisherman/liaise with commercial fisherman/all stakeholders

Include risk information for this activity in GL boating guide ,website, port information handbook

No change will see the risks increase over time as boat numbers and pressure on limited channel space growsLegal liability arising from failure to exercise statutory duties

Compliance and enforcement - offence to contravene the Collision Regulations – obstruct channel – cause marine incident Penalties apply

Better defined channel and changed zoning rules in Hopetoun Channel will reduce safety risks and assist in compliance and enforcement

Replace with; “prawning equipment including anchor lines shall not occupy any part of a channel or fairway”

Unl

ikel

y 2

Mod

erat

e 3

Med

ium

6






Stressor (type of

waterway hazard)


on GP)




done)




operational)

Inherent Risk




Residual risk

Like

lihoo

d

Con

sequ

ence

Ris

k Le

vel (

E,

H, M

, L)

Like

lihoo

d

Con

sequ

ence

Ris

k Le

vel (

E,

H, M

, L)

Commercial and recreational prawn fishing activity within the Hopetoun Channel fairway

Increased vessel activity in Hopetoun Channel at night by recreational vessels – both prawning and for transit

Threat to safe navigation

Particularly area below Egans Groyne

Increased risks of collisions, entanglement in nets

Vessel swept out to sea, capsize, MOB

Person/s drowned

Damage/loss of vessel

Damage to fishing gear / equipment

Preferred activity is Night time/strong ebb tides/no moon/strong tidal stream that concentrates the prawns

(Can operate all nights)

Entanglement of gear in large slug of weed leading to increased drag , pulling of anchors and vessel carried out the channel

GL EG Estuarine fisherman Assoc. Code of PracticeFisherman in attendance at all timesVOZRGL boating guide AUS182Zoning/AToN

Self-regulated (by industry and rec boaters)

Compliance of boat safety by GWP

Safety

Unl

ikel

y 2

Cat

astro

phic

5

Hig

h 10

Do nothing

Enforce compliance with current / changed VOZR for both commercial and recreational

Define the channel with improved/additional AToN (lights on existing and additional ‘gateway’ AToN)Revised VOZR (transit only zone, modified 5 knot zone boundaries and night time restrictions) would effectively control risks from fishing activity in Hopetoun but particularly the area below Egans Groyne

Modify commercial stake net fishing gear to increase visibilityEducation program for rec fisherman/liaise with commercial fisherman/all stakeholdersInclude relevant risk information for this activity in boating guide

No change will see the currently high safety risks increase over time as boat numbers grow and pressure on limited channel space intensifies

Compliance and enforcement - offence to contravene the Collision Regulations – obstruct channel – cause marine incident Penalties apply

Better defined channel and changed zoning rules in Hopetoun Channel will reduce safety risks and assist in compliance and enforcement (see legal risk above)

Residual (claimed) financial risk to commercial fishermen (refer financial risk below)

Rar

e 1

Cat

astro

phic

5

Med

ium

5

Marine pollution GP is pollution response agency Level 1 event (< 1000L) most likely

GP can respond to this from LED but after hours response would be limited

Pollution emergency response capability at BIActivity primarily during ebb tide Environment

Unl

ikel

y 2

Min

or 2

Low

4

No practicable additional action identified

No change to residual risk level

Unl

ikel

y 2

Min

or 2

Low

4






Stressor (type of

waterway hazard)


on GP)




done)




operational)

Inherent Risk




Residual risk

Like

lihoo

d

Con

sequ

ence

Ris

k Le

vel (

E,

H, M

, L)

Like

lihoo

d

Con

sequ

ence

Ris

k Le

vel (

E,

H, M

, L)

Financial impacts Potential financial impact on commercial fisherman and LEFCOL

Move of industry focus to other locations (eg higher up Hopetoun channel)

shot location really affected by proposed changes but knock on effect to other commercial fisherman if affected fisherman moves his shot further up Hopetoun channel.

Anecdotal evidence that prawn catch of one fisherman could be 50T/year

Reduction in recreational fishing activity and these will also move to other locations (eg higher up Hopetoun Channel)

Value in terms of $/kilogram of catch to the economy from commercial versus recreational fishing is to bream fishing

This potential risk is an outcome of risk treatment options listed under Safety and Legal risks above

Financial

Like

ly 4

Min

or 2

Med

ium

6

Do nothing

This perceived risk is an outcome of treatment options listed above

Changed zoning will stop current prawn fishing practices in area below Egans Groyne

Commercial industry preferred option but does not address safety and compliance risks.

Safety risks have precedence over other risks

Regulating operating area will improve safety and not close down fishery either commercially or recreationally, but will move fishing effort into other areas

Like

ly 4

Min

or 2

Med

ium

6




Recommendations:

1. Seek resolution between GP, stakeholders, Commercial Fishing Licence Holders and public on changes required to control risks of vessel activity in Hopetoun Channel

Arrange further public meeting, to include GP -TSV, GWP and Fisheries to discuss:

past practices both commercial and recreational are in breach of various legislation

the Waterway risk assessment for the activity in Hopetoun Channel

AToN changes done so far (lighting and creation of ‘gateway’ marks)

the proposed changes to Hopetoun Channel VOZR. Focus is on safety and compliance risks in 5 knot zone east of Egans Groyne and in open speed zone west of Egans Groyne

o Change to lower section of Hopetoun where channel narrows to Transit Only zone. Will need to consider boaters wanting to pull into the bank to use beach areas on the island as well as beaches on southern side near Egans Groyne

o Decrease size of current 5 knot zone in lower section & create new 5 knot zone between sunset and sunrise

suggested changes to fishermens COP

TSV VOZR change process

2. Make changes as per TSV VOZR change process

3. include all changes in GL boating guides and onto GP website




Risk Assessment Tools

Risk ConsequenceScore Descriptor Description

Safety Financial Loss Reputation / Image Business

Interruption Environmental Legal Operations

1 Noticeable

Minor injuries immediately treated on-

site with First Aid treatment.

Loss less than $10,000

Local complaint resolved at the workplace

Program delivery/operations disrupted for 1 day

Minor damage / disturbance resolved locally with immediate

recoveryNo legal action Impact effecting

operations for 1 day

2 Minor

Moderate injuries requiring medical

treatment but without hospital admission

Loss up to $100,000

Issue involving local media and resolved in the

Region

Program delivery/operations disrupted for up to

1 week

Damage / disturbance resolved with additional internal resources over a short term recovery period

Possible fines

Aggrieved person lodging complaint

directly

Possible fines

Impact on operations for up to 1 week

3 Moderate

Recoverable serious and/or extensive injuries requiring

medical treatment with hospital admission

Loss up to $1,000,000

Issue requiring Ministerial involvement and attracting

State media


1 month

Significant damage / disturbance resolved with additional internal

and other agency resources over a mid term recovery period

Possible prosecution/fines

Litigation action initiated

Possible fines and/or prosecution

Impact on operations for up to 1 month

4 Major

Permanent injury / incapacity – eg limb

amputation, paraplegia, quadriplegia, brain

damage, etc

Loss up to $10,000,000

Major issue leading to Government involvement

and national media coverage


1 year

Major damage / disturbance resolved with additional internal

and other agency resources over a long term recovery period.

Impending prosecution/fines

Litigation action taken

Fines and prosecution very likely

Impact on operations for up to 1 year

5 Catastrophic Death/sLoss greater

than $10,000,000

Significant issue requiring Government response

and involving international media coverage

Non recoverable Program

delivery/operation

Non recoverable damage / disturbance; widespread impact

(>10km2).

Impending prosecution/fines

Potential for Board/staff to be jailed

Extensive, drawn-out litigation

Severe fines & prosecution impending

potential jail terms

Non recoverable impact on operations

Risk Likelihood

Score Descriptor Description

5 Almost certain The event is expected to occur in most circumstances A number of times a month

4 Likely The event will probably occur in most circumstances At least once every six months

3 Possible The event should occur at some time May occur once in 5 years

2 Unlikely The event could occur at some time May occur once in 10 years

1 Rare The event may occur only in exceptional circumstances May occur once in 100 years or more

Risk Level Matrix

Consequence

Likelihood

1 2 3 4 5Noticeable Minor Moderate Major Catastrophic

5 Almost Certain Medium 5 High 10 High 15 Extreme 20 Extreme 25

4 Likely Medium 4 Medium 8 High 12 High 16 Extreme 20

3 Possible Low 3 Medium 6 Medium 9 High 12 High 15

2 Unlikely Low 2 Low 4 Medium 6 Medium 8 High 10

1 Rare Low 1 Low 2 Low 3 Medium 4 Medium 5



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