Commentary on Sections Part 3: Marine Protection Section 34: Exceptions
This section sets out the circumstances in which a person will not be guilty of an offence under sections 32 or 33.
Subsection (1) sets out a number of exceptions.  Subsection (3) provides that a person is not guilty of contravening byelaws by virtue of doing anything that would make that person guilty of the general offence.  Subsection (4) provides a defence for a person charged with an offence under section 33 where the accused person can prove the relevant act was done in the course of sea fishing and the damage could not reasonably have been avoided.  If damage were caused - for example, by the use of illegal fishing gear where it would not have been caused had legal fishing gear been used - then this defence would not be available.  Such damage could reasonably have been avoided by using legal fishing gear, and therefore the person would not have met the condition in paragraph (4)(b).
Subsection (5) provides a power for the Department to restrict or remove the defence set out in subsection (4).  This can only be done by an order, which would be subject to draft affirmative resolution in the Assembly.  In addition, the power would have to be exercised within any relevant constraints of the Common Fisheries Policy.