TORRES STRAIT FISHERIES ACT 1984 - SECT 44 Contravention of instruments under section 16
TORRES STRAIT FISHERIES ACT 1984 - SECT 44
Contravention of instruments under section 16(a) do an act in an area of Australian jurisdiction that the person is prohibited from doing by an instrument in force under section 16;
(b) have in his or her possession, or under his or her control, fish of a kind the taking of which by the person is prohibited by an instrument in force under section 16; or
(c) search for fish in an area of Australian jurisdiction with the intention of engaging in commercial fishing, being fish the taking of which by the person from that area is prohibited by an instrument in force under section 16.
(2) A person who contravenes subsection ( 1) in circumstances in which he or she does not commit an offence against subsection (3) commits an offence punishable, on conviction, by a fine not exceeding:
(a) if the person is a natural person--50 penalty units; or
(b) if the person is a body corporate--250 penalty units.
(3) A person who contravenes subsection ( 1) with the use of a foreign boat commits an offence punishable:
(a) on summary conviction--by a fine not exceeding:
(i) if the person is a natural person--50 penalty units; or
(ii) if the person is a body corporate--250 penalty units; and
(b) on conviction on indictment--by a fine not exceeding:
(i) if the person is a natural person--500 penalty units; or
(ii) if the person is a body corporate--2,500 penalty units.
(3AA) An offence under subsection ( 2) or (3) consisting of a contravention of paragraph ( 1)(a) or (b) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
(3AB) In the case of an offence under subsection ( 2) or (3) consisting of a contravention of paragraph ( 1)(c), strict liability applies to the physical elements of circumstance, that:
(a) the relevant conduct occurs in an area of Australian jurisdiction; and
(b) the relevant instrument is in force under section 16.
Note: For strict liability, see section 6.1 of the Criminal Code .
(a) a person is convicted of an offence against subsection ( 2) or (3) arising out of a contravention of paragraph ( 1)(a);
(b) the court before which the person is convicted is satisfied that:
(i) the person contravened paragraph ( 1)(a) in an area of Australian jurisdiction at a particular time by using a boat (other than a Papua New Guinea boat) for a particular purpose; and
(ii) either of the following sub - subparagraphs apply:
(A) a licence under this Act was not in force in respect of the boat at that time;
(B) a licence under this Act was in force in respect of the boat at that time, but the licence did not authorise the use of the boat in that area for that purpose; and
(c) the court is also satisfied that:
(i) in a case to which sub - subparagraph ( b)(ii)(A) applies--if a licence under this Act had been in force at that time authorising the use of the boat in that area for that purpose, the licence would have been a leviable licence; or
(ii) in a case to which sub - subparagraph ( b)(ii)(B) applies--if the licence under this Act in force in respect of the boat had not been in force at that time, but another licence under this Act had been in force authorising the use of the boat in that area for that purpose, the other licence would have been a leviable licence;
the court may, in addition to imposing a penalty on the person, order the person to pay to the Commonwealth an amount not exceeding the amount that is the relevant levy amount in relation to the licence referred to in subparagraph ( c)(i) or the other licence referred to in subparagraph ( c)(ii), as the case may be.
(a) a person is convicted of an offence against subsection ( 2) because the person engaged in activities in contravention of paragraph ( 1)(a) at a particular time; and
(b) the court before which the person is convicted is satisfied that if a licence under subsection 19(4A) authorising the activities had been in force at that time, the licence would have been a leviable licence;
the court may, in addition to imposing a penalty on the person, order the person to pay to the Commonwealth an amount not exceeding the amount that is the relevant levy amount in relation to the licence.
(a) a person is convicted of an offence against subsection ( 2) or (3) arising out of a contravention of paragraph ( 1)(c);
(b) the court before which the person is convicted is satisfied that:
(i) the person contravened paragraph ( 1)(c) in an area of Australian jurisdiction at a particular time by using a boat (other than a Papua New Guinea boat) to search for fish; and
(ii) either of the following sub - subparagraphs apply:
(A) a licence under this Act was not in force in respect of the boat at that time;
(B) a licence under this Act was in force in respect of the boat at that time, but the licence did not authorise the use of the boat for taking fish of that kind in that area in the course of commercial fishing; and
(c) the court is also satisfied that:
(i) in a case to which sub - subparagraph ( b)(ii)(A) applies--if a licence under this Act had been in force at that time authorising the use of the boat for taking fish of that kind in that area in the course of commercial fishing, the licence would have been a leviable licence; or
(ii) in a case to which sub - subparagraph ( b)(ii)(B) applies--if the licence under this Act in force in respect of the boat had not been in force at that time, but another licence under this Act had been in force authorising the use of the boat for taking fish of that kind in that area in the course of commercial fishing, the other licence would have been a leviable licence;
the court may, in addition to imposing a penalty on the person, order the person to pay to the Commonwealth an amount not exceeding the amount that is the relevant levy amount in relation to the licence referred to in subparagraph ( c)(i) or the other licence referred to in subparagraph ( c)(ii), as the case may be.
(4) For the purposes of paragraph ( 1)(a), an act done by an employee or agent of a person shall be deemed to have also been done by the person.
(5) It is a defence to a prosecution for an offence arising out of a contravention of paragraph ( 1)(b) in relation to an instrument under section 16 if the person charged satisfies the court that:
(a) the taking of the fish was not in contravention of that instrument; or
(b) the fish were taken in an area that is not an area of Australian jurisdiction.
(6) Where levy is payable under the Fisheries Levy Act 1984 on the grant of, the renewal of, the variation of or the making under this Act of an entry in a licence under this Act:
(a) the licence shall be taken, for the purposes of this section, to be a leviable licence; and
(b) the amount of the levy or the sum of the amounts of the
levy, as the case requires, payable with respect to the licence shall be
taken, for the purposes of this section, to be the relevant levy amount in
relation to the licence.