FISHERIES MANAGEMENT BILL 2006

Contents

Part 1—Preliminary

1 Short title

2 Commencement

3 Interpretation

4 Declaration of aquatic reserves

5 Application of Act

6 Ownership of aquatic resources of State

Part 2—Objects of Act

7 Objects of Act

Part 3—Administration

Division 1—Minister and Director

8 Minister

9 Director

10 Delegation

Division 2—Fisheries Council of South Australia

11 Establishment of Council

12 Presiding member and deputy presiding member

13 Terms and conditions of membership

14 Vacancies or defects in appointment of members

15 Remuneration

16 Functions of Council

17 Council's procedures

18 Annual strategic plan

19 Annual report

Division 3—Advisory committees

20 Establishment of committees

Division 4—Fisheries Research and Development Fund

21 Continuation of Fund

22 Accounts

23 Audit

Part 4—Commonwealth-State arrangements

Division 1—Commonwealth-State joint authorities

24 Powers and functions of Minister

25 Judicial notice

26 Functions of Joint Authority

27 Delegation

28 Procedure of Joint Authorities

29 Report of Joint Authority

Division 2—Arrangements with Commonwealth with respect to management of particular fisheries

30 Arrangement for management of certain fisheries

31 Application of this Act to fisheries in accordance with arrangements

32 Application of Commonwealth law to limits of State in accordance with arrangements

33 Functions of Joint Authority

34 Joint Authority to exercise certain powers instead of Minister or Director

35 Application of certain provisions relating to offences

36 Presumption relating to certain statements

37 Regulations relating to Joint Authority fishery

Division 3—Arrangements with other States

38 Arrangements with other States

39 Functions

Part 5—Management plans for commercial fishing, recreational fishing and aquatic reserves

40 Interpretation

41 Application of Part

42 Duty of Council to prepare management plans

43 General nature and content of management plans

44 Procedure for preparing management plans

45 Tabling of management plans

46 Procedure for making certain amendments to management plans

47 Duration of management plans

48 Availability and evidence of management plans

49 Review of management plans

50 Implementation of management plans

Part 6—Regulation of fishing and processing

Division 1—Commercial fishing

51 Interpretation

52 Obligation of commercial fishers to hold licence or permit

53 Obligation for boats and devices used in commercial fishing to be registered

54 Applications for licences, permits or registration

55 Conditions of licence, permit or registration

56 Duration of authority and periodic fee and return etc

57 Transfer of licence or permit

58 Obligation to carry authority and identification while engaging in fishing activities

Division 2—Aboriginal traditional fishing

59 Management of aboriginal traditional fishing

60 Availability and evidence of aboriginal traditional fishing management plans

Division 3—Processing

61 Obligation of fish processors to be registered

62 Classes of registration

63 Applications for registration

64 Conditions of registration

65 Duration of registration and periodic fee and return etc

Division 4—Miscellaneous

66 Misuse of authorities

67 Issue of duplicate authority

68 Effect of suspension of authority

Part 7—Offences

Division 1—Offences relating to fishing activities

69 Prescribed fishing activities prohibited

70 Taking, injuring etc aquatic mammals and protected species prohibited

71 Sale, purchase or possession of aquatic resources without authority prohibited

72 Possession of prescribed quantity of aquatic resource in prescribed circumstances

73 Unauthorised trafficking in fish of priority species prohibited

74 Interference with lawful fishing activities prohibited

Division 2—Miscellaneous offences

75 Entering etc aquatic reserve, or engaging in fishing activity in aquatic reserve, without authorisation prohibited

76 Disturbance of water beds, or removal or interference with animals or plants, in aquatic reserve without authorisation prohibited

77 Unauthorised activities relating to exotic organisms or noxious species prohibited

Division 3—Temporary prohibition of certain fishing activities etc

78 Temporary prohibition of certain fishing activities etc

Part 8—Enforcement

Division 1—Authorised persons

Subdivision 1—Appointment of authorised persons

79 Appointment of fisheries officers, scientific observers and sea rangers

Subdivision 2—Fisheries officers

80 General powers of fisheries officers

81 Power of fisheries officer to search persons for evidence of certain offences

82 Powers of fisheries officers relating to exotic aquatic organisms and aquaculture fish

83 Power of fisheries officer to arrest persons without warrant

84 Corresponding laws may confer powers and functions

85 Fisheries officer may be assisted in exercise of powers etc

Subdivision 3—Scientific observers

86 Functions of scientific observer

87 Placement of scientific observer on registered boat

Subdivision 4—Sea rangers

88 Functions of sea ranger

Subdivision 5—Miscellaneous

89 Provisions relating to things seized

90 Offence to hinder etc authorised persons

Division 2—Orders made by Minister

91 Protection orders

92 Action on non-compliance with protection order

93 Reparation orders

94 Action on non-compliance with reparation order

95 Reparation authorisations

96 Related matters

97 Registration of orders or authorisations by Registrar-General

98 Effect of charge

Division 3—Court orders

99 Additional orders court can make on conviction

100 Orders ERD Court may make on application by Minister

101 Provisions relating to orders under this Division

Division 4—Demerit points scheme

102 Interpretation

103 Demerit points for certain offences

104 Consequences of certain number of demerit points being incurred by person or recorded against authority

105 Notices to be sent by Minister when certain number of demerit points are incurred or recorded

106 Notices to be sent by Minister when person becomes liable to disqualification or authority is to be cancelled

107 Disqualification etc and discounting of demerit points

108 Court not to take into account demerit points in determining penalty

Division 5—Miscellaneous

109 Additional penalty based on value of aquatic resources

Part 9—Review and appeals

Division 1—Internal review

110 Review of certain decisions of Minister

Division 2—Appeals

111 Appeal to District Court against decision of Minister

112 Appeals to ERD Court against protection or reparation order

113 Constitution of ERD Court

Part 10—Miscellaneous

Division 1—General

114 Exemptions

115 Registers

116 Recovery of fees, levies and other amounts

117 Statutory declarations

118 False or misleading statement or information

119 Offences committed by bodies corporate or agents, or involving registered boats

120 Commencement of prosecutions

121 Self-incrimination

122 Rewards

123 Confidentiality

124 Service

125 Evidentiary provisions

Division 2—Regulations

126 General

127 Regulations relating to conservation and management of aquatic resources, management of fisheries and aquatic reserves and regulation of fishing

128 Regulations relating to processing of aquatic resources

129 Regulations relating to control of exotic aquatic organisms and disease

Division 3—Review of Act

130 Review of Act by Minister

Schedule 1—Repeals and transitional provisions

Part 1—Repeals

1 Repeal of fisheries legislation

Part 2—Transitional provisions

2 Minister

3 Commonwealth-State arrangements

4 Fisheries officers

5 Fisheries and fishery licences

6 Fish processor registrations

7 Temporary prohibitions of fishing activities

8 Aquatic reserves and marine parks

9 Permits

10 Exemptions

11 Register of authorities

Schedule 2—Related amendments

Part 1—Preliminary

1 Amendment provisions

Part 2—Amendment of Aquaculture Act 2001

2 Amendment of section 82—Fisheries officers and their powers

Part 3—Amendment of Criminal Assets Confiscation Act 2005

3 Amendment of section 3—Interpretation

Part 4—Amendment of Criminal Law (Undercover Operations) Act 1995

4 Amendment of section 2—Interpretation

Part 5—Amendment of Harbors and Navigation Act 1993

5 Amendment of section 4—Interpretation

Part 6—Amendment of Livestock Act 1997

6 Amendment of section 3—Interpretation

7 Amendment of section 63—Appointments

The Parliament of South Australia enacts as follows:

Part 1—Preliminary

1—Short title

This Act may be cited as the Fisheries Management Act 2006.

2—Commencement

This Act will come into operation on a day to be fixed by proclamation.

3—Interpretation

(1) In this Act, unless the contrary intention appears—

Aboriginal person means a person of Aboriginal descent who is accepted as a member by a group in the community who claim Aboriginal descent;

aboriginal traditional fishing means fishing engaged in by an Aboriginal person for the purposes of satisfying personal, domestic or non-commercial, communal needs, including ceremonial, spiritual and educational needs, and using fish and other natural marine and freshwater products according to relevant aboriginal custom;

aboriginal traditional fishing management plan—see section 59;

Adelaide Dolphin Sanctuary has the same meaning as in the Adelaide Dolphin Sanctuary Act 2005;

advisory committee means an advisory committee established under section 20;

aquaculture has the same meaning as in the Aquaculture Act 2001;

aquaculture fish means fish farmed under an aquaculture licence;

aquaculture licence has the same meaning as in the Aquaculture Act 2001;

aquatic animal means an aquatic animal of any species, and includes the reproductive products and body parts of an aquatic animal;

aquatic mammal means a seal or sea lion (order Pinnipedia) or a dolphin or whale (order Cetacea);

aquatic plant means an aquatic plant of any species, and includes the reproductive products and parts of an aquatic plant;

aquatic reserve means any waters, or land and waters, declared by proclamation to constitute an aquatic reserve;

aquatic resource means fish or aquatic plants;

aquatic resources of the State means aquatic resources of the waters to which this Act applies but does not include aquatic resources being farmed under an aquaculture licence;

arrangement means—

(a) an arrangement made by the State with the Commonwealth under Part 4 Division 1 (whether or not it is also made with another State or other States); or

(b) an agreement made by the State with 1 or more other States under Part 4 Division 3;

Australian fishing zone means the Australian fishing zone as defined in the Commonwealth Act;

authorised person means a fisheries officer, scientific observer or sea ranger;

authority means a licence, permit, registration, authorisation or other authority under this Act;

boat means a vessel or craft that is used, or is capable of being used, as a means of transportation on water;

coastal waters has the same meaning as in the Commonwealth Act;

commercial fishing means fishing for a commercial purpose;

commercial purpose means the purpose of trade or business;

commercial quantity means a quantity declared by the regulations to be a commercial quantity for the purposes of this Act;

Commonwealth Act means the Fisheries Management Act 1991 of the Commonwealth;

Commonwealth Minister means the Minister for the time being administering the Commonwealth Act and any other Minister performing and exercising functions and powers under section 60 of the Commonwealth Act;

condition includes a limitation;

contravene includes not comply with;

corresponding law means a law of the Commonwealth or another State or a Territory of the Commonwealth declared by the regulations to be a law corresponding to this Act;

council has the same meaning as in the Local Government Act 1999;

developmental fishery means a fishery declared by the regulations to be a developmental fishery for the purposes of this Act;

device means an implement, apparatus, device or substance for taking or facilitating the taking of an aquatic resource;

director of a body corporate includes a person occupying or acting in the position of a director or member of the governing body of the body corporate, by whatever name called and whether or not validly appointed to occupy or duly authorised to act in the position, and includes any person in accordance with whose directions or instructions the directors or members of the governing body are accustomed to act;

Director of Fisheries or Director means the person for the time being holding or acting in the office of the Director of Fisheries under Part 3 Division 1;

ecologically sustainable development—see section 7(5);

ERD Court means the Environment, Resources and Development Court;

exemption means an exemption granted under this Act;

exotic aquatic organism means fish or an aquatic plant of a species that is not endemic to the waters to which this Act applies; and exotic fish and exotic aquatic plant have corresponding meanings;

fish means an aquatic animal other than—

(a) an aquatic bird, an aquatic mammal, a reptile or an amphibian; or

(b) an aquatic animal of a kind declared by the regulations to be excluded from the ambit of this definition;

Fisheries Council or Council means the Fisheries Council of South Australia established by section 11;

fisheries officer means—

(a) the Director; or

(b) a police officer; or

fishery—

(a) in Part 4—means a class of fishing activities identified in an arrangement under that Part as a fishery to which the arrangement applies;

(b) in any other case—means a class of fishing activities declared by the regulations to constitute a fishery for the purposes of this Act (other than Part 4);

fishery authority means a fishery licence or fishery permit;

fishery licence means a licence in respect of a fishery under Part 6 Division 1;

fishery permit means a permit in respect of a fishery under Part 6 Division 1;

fishing activity or fishing means the act of taking an aquatic resource, or an act preparatory to, or involved in, the taking of an aquatic resource;

fish of a priority species means—

(a) abalone (Haliotis spp.) of all species; or

(b) southern rock lobster (Jasus edwardsii); or

fish processor means a person who, for a commercial purpose, processes, stores, transports or deals with fish or other aquatic resources;

foreign boat has the same meaning as in the Commonwealth Act;

Fund means the Fisheries Research and Development Fund continued in existence under section 21;

indigenous land use agreement means an indigenous land use agreement registered under Part 2 Division 3 of the Native Title Act 1993 of the Commonwealth;

Joint Authority means a Joint Authority established under section 61 of the Commonwealth Act of which the Minister is a member;

Joint Authority Fishery means a fishery in respect of which there is in force an arrangement under Part 4 Division 2 under which the fishery is to be under the management of a Joint Authority;

management plan means a management plan under Part 5;

Minister for the Adelaide Dolphin Sanctuary means the Minister to whom the administration of the Adelaide Dolphin Sanctuary Act 2005 is committed;

Minister for the River Murray means the Minister to whom the administration of the River Murray Act 2003 is committed;

native title group means a native title group under section 24CD of the Native Title Act 1993 of the Commonwealth;

noxious, in relation to an aquatic resource, means a species of aquatic resource declared by the Minister by notice in the Gazette to be a noxious species for the purposes of this Act;

plant includes alga;

prescribed apparatus means apparatus of a kind prescribed by the regulations for the purpose of counting, grading, weighing or sizing fish;

prescribed procedure means a procedure prescribed by the regulations for determining the weight of a fish catch;

processing—

(a) in relation to fish—means scaling, gilling, gutting, filleting, freezing, chilling, packing or any other activity involved in preparing fish for sale;

(b) in relation to any other aquatic resource—means any activity involved in preparing the resource for sale;

protected species means a species of aquatic resource declared by the regulations to be a protected species for the purposes of this Act;

public authority includes a Minister, statutory authority or council;

purchase means—

(a) purchase or take in exchange; or

(b) agree or offer to purchase or take in exchange; or

(d) cause, suffer or permit an act referred to in a preceding paragraph;

quota entitlement under a fishery authority means the total quantity of aquatic resource of a particular class that may be taken under the authority during a quota period;

quota period means the period during which a total allowable catch or total allowable commercial catch may be taken;

recreational fishing means fishing other than commercial fishing or aboriginal traditional fishing;

registered boat—

(a) means a boat registered under Part 6 Division 1 for use under a fishery authority; and

(b) includes a boat used in the place of a boat referred to in paragraph (a) with the consent of the Minister and in accordance with the conditions (if any) of that consent;

registered fish processor means a person who is registered as a fish processor under Part 6 Division 3;

registered master—

(a) means a person registered under Part 6 Division 1 as master of a boat that may be used under a fishery authority; and

(b) includes a person acting in the place of a person referred to in paragraph (a) with the consent of the Minister and in accordance with the conditions (if any) of that consent;

registered owner—

(a) in relation to a registered boat—means, subject to paragraph (b), the holder of the fishery authority under which the registered boat may be used; or

(b) in relation to a boat being used by the holder of a fishery authority under this Act in place of a boat registered under Part 6 Division 1—means the holder of that authority;

register of authorities—see section 115(1)(a);

register of exemptions—see section 115(1)(b);

repealed Act means the Fisheries Act 1982;

River Murray has the same meaning as in the River Murray Act 2003;

scientific observer means a person appointed as a scientific observer under section 79;

sea ranger means a person appointed as a sea ranger under section 79;

sell means—

(a) sell or give in exchange; or

(b) agree or offer to sell or give in exchange; or

(d) cause, suffer or permit an act referred to in a preceding paragraph;

species includes a subspecies or variety;

State includes a Territory;

take, in relation to an aquatic resource, means catch, take or obtain the resource (whether dead or alive) from any waters or kill or destroy the resource in any waters;

total allowable catch, in relation to a fishery, means the total quantity of aquatic resources of a particular class that may be taken from the waters of the fishery during a particular period;

total allowable commercial catch, in relation to a fishery, means the total quantity of aquatic resources of a particular class that may be taken from the waters of the fishery during a particular period for a commercial purpose;

waters means—

(a) any sea or inland waters (including any body of water or watercourse of any kind whether occurring naturally or artificially created); and

(b) the bed of such waters.

(2) A class of fishing activities may be defined in an instrument under this Act by reference to all or any of the following factors:

(a) a species of aquatic resource;

(b) a description of aquatic resource by reference to sex, size, weight or any other characteristic;

(d) a period of time;

(e) an area of waters or a place;

(f) a method of fishing;

(g) a class or number of boats;

(h) a class of persons;

(i) a purpose of activities;

(j) any other factor.

(3) In this Act—

(a) a reference to engaging in a fishing activity of a class is to be construed as a reference to doing an act that falls within the defined class and as including a reference to—

(i) using a device for the purpose of the activity; or

(ii) using a boat for the purpose of the activity; or

(iii) being in charge of, or acting as a member of the crew of, a boat that is being used for the purpose of the activity; or

(iv) diving in waters for the purpose of the activity; or

(v) causing, assisting, suffering or permitting a person to do an act referred to in this section;

(b) a reference to waters includes a reference to the intertidal and supra tidal zones of waters;

(c) a reference to the waters of a fishery is a reference to the waters in relation to which the fishery is constituted.

(4) For the purposes of this Act, an aquatic resource will not be regarded as having been taken if it is taken but immediately returned to the water unencumbered in any way and with as little injury or damage as possible.

4—Declaration of aquatic reserves

(1) The Governor may, by proclamation—

(a) declare that waters, or land and waters, specified in the proclamation, constitute an aquatic reserve; and

(b) assign a name to the aquatic reserve so constituted.

(2) Land cannot form part of an aquatic reserve unless the land has been placed under the care, control and management of the Minister.

(3) The Governor may, by subsequent proclamation—

(a) abolish an aquatic reserve; or

(b) alter the boundaries of an aquatic reserve; or

5—Application of Act

(1) Subject to any limitations expressly prescribed in this Act, this Act applies—

(a) in relation to all waters that are within the limits of the State; and

(b) except for purposes relating to a fishery that is to be managed in accordance with the law of the Commonwealth under an arrangement under Part 4 Division 2 or purposes prescribed by paragraph (d)—in relation to any waters of the sea not within the limits of the State that are on the landward side of waters adjacent to the State that are within the Australian fishing zone; and

(c) for purposes relating to a fishery that is to be managed in accordance with the law of the State under an arrangement under Part 4 Division 2—in relation to any waters to which the legislative powers of the State extend, with respect to that fishery, whether under section 5 of the Coastal Waters (State Powers) Act 1980 of the Commonwealth or otherwise; and

(d) for purposes relating to recreational fishing activities engaged in otherwise than by use of a foreign boat (other than recreational fishing activities prohibited or regulated under a plan of management determined under section 17 of the Commonwealth Act)—in relation to any waters to which the legislative powers of the State extend with respect to such activities.

(2) This Act does not apply in relation to an activity (other than the taking of aquatic resources for a commercial purpose or the introduction of exotic aquatic organisms or disease in aquatic resources) engaged in relation to inland waters if those waters are surrounded by land that is in the ownership, possession or control of the same person (being a person other than the Crown or an instrumentality of the Crown).

(3) Native title and native title rights and interests are not affected by the operation of this Act except to the extent authorised under the Native Title Act 1993 of the Commonwealth.

6—Ownership of aquatic resources of State

(1) The Crown in right of the State owns all aquatic resources (whether living or dead) of the State.

(2) Property in aquatic resources of the State passes—

(a) to the holder of a licence, permit or other authority granted under this Act when taken in accordance with that licence, permit or other authority; or

(b) to any other person when taken lawfully in circumstances in which no licence, permit or other authority is required under this Act for the taking.

Division 2—Fisheries Council of South Australia

11—Establishment of Council

(1) The Fisheries Council of South Australia is established.

(2) The Council consists of not less than 10 members.

(3) The Director is to be a member of the Council ex officio and the remaining members are to be appointed by the Governor on the nomination of the Minister.

(4) Each member of the Council must have expertise in fisheries management and at least 1 must be a person with knowledge and experience of aboriginal traditional fishing.

(5) The membership of the Council must include persons who together have, in the Minister's opinion, expertise in the following areas:

(a) commercial fishing and the processing of aquatic resources;

(b) recreational fishing;

(d) conservation of aquatic resources;

(e) socio-economics;

(f) business;

(g) law.

(6) Before nominating a person or persons for appointment to the Council, the Minister must, by notice published in a newspaper circulating generally throughout the State, invite expressions of interest for appointment to the Council within a period specified in the notice and must consider any expressions of interest received in response to the notice.

12—Presiding member and deputy presiding member

(1) The Minister must appoint 1 of the members of the Council (the presiding member) to preside at meetings of the Council.

(2) The Minister may appoint another member of the Council to be the deputy of the presiding member (the deputy presiding member) to preside at meetings of the Council in the absence of the presiding member.

13—Terms and conditions of membership

(1) A member of the Council will be appointed on conditions determined by the Governor and for a term, not exceeding 3 years, specified in the instrument of appointment and, at the expiration of a term of appointment, is eligible for reappointment.

(2) However, an appointed member of the Council may not hold office for consecutive terms that exceed 6 years in total.

(3) The Governor may remove an appointed member of the Council from office—

(a) for breach of, or non-compliance with, a condition of appointment; or

(b) for misconduct; or

(4) The office of an appointed member of the Council becomes vacant if the member—

(a) dies; or

(b) completes a term of office and is not reappointed; or

(d) ceases to satisfy the qualification by virtue of which the member was eligible for appointment to the Board; or

(e) is absent without leave of the presiding member of the Council from 3 consecutive meetings of the Council; or

(f) is removed from office under subsection (3).

14—Vacancies or defects in appointment of members

An act or proceeding of the Council is not invalid by reason only of a vacancy in its membership or a defect in the appointment of a member.

15—Remuneration

An appointed member of the Council is entitled to remuneration, allowances and expenses determined by the Minister.

16—Functions of Council

The Fisheries Council has the following functions:

(a) to prepare management plans as required by the Minister;

(b) to conduct reviews of management plans;

(d) to promote research, education and training in relation to fisheries and the management of fisheries;

(e) to advise the Minister on the management of aboriginal traditional fishing, commercial fishing and recreational fishing;

(f) to advise the Minister about fees to be paid in connection with fishery authorities;

(g) to advise the Minister on the application of money in the Fund;

(h) to advise the Minister on State-wide policies in relation to fisheries management and research;

(i) to advise the Minister on matters relating to intergovernmental agreements and arrangements related to fisheries or fishing;

(j) to advise the Minister on issues related to the allocation of access to aquatic resources in particular fisheries;

(k) to prepare or promote codes of practice on best practice concerning matters of relevance to holders of fishery authorities;

(l) to carry out such other functions as may be assigned or delegated to the Council by the Minister.

17—Council's procedures

(1) A majority of members of the Council constitutes a quorum of the Council.

(2) If the presiding member and the deputy presiding member of the Council are both absent from a meeting of the Council, a member chosen by the members present at the meeting will preside.

(3) A decision carried by a majority of the votes cast by members of the Council at a meeting is a decision of the Council.

(4) When a matter arises for decision at a meeting of the Council—

(a) each member present at the meeting (other than the member presiding at the meeting) has a deliberative vote; and

(b) if the deliberative votes are equal, the member presiding at the meeting may exercise a casting vote.

(5) A conference by telephone or other electronic means between the members of the Council will, for the purposes of this section, be taken to be a meeting of the Council at which the participating members are present if—

(a) notice of the conference is given to all members in the manner determined by the Council for the purpose; and

(b) each participating member is capable of communicating with every other participating member during the conference.

(6) A proposed resolution of the Council becomes a valid decision of the Council despite the fact that it is not voted on at a meeting of the Council if—

(a) notice of the proposed resolution is given to all members of the Council in accordance with procedures determined by the Council; and

(b) a majority of the members express concurrence in the proposed resolution by letter, telegram, telex, fax, e-mail or other written communication setting out the terms of the resolution.

(7) The Council must have accurate minutes kept of its meetings.

(8) Subject to this Act and any direction of the Minister, the Council may determine its own procedures.

18—Annual strategic plan

(1) The Council must, on or before 31 March in each year, prepare and submit to the Minister a plan of the Council's proposed operations for the next financial year.

(2) The Minister may—

(a) accept the plan; or

(b) request that the plan be altered and adopt the plan as altered.

19—Annual report

(1) The Council must, on or before 30 September in each year, prepare and submit to the Minister a report on the operations of the Council during the previous financial year.

(2) The Minister must, within 12 sitting days after receiving a report under this section, cause a copy of the report to be laid before both Houses of Parliament.

Part 4—Commonwealth-State arrangements

Division 1—Commonwealth-State joint authorities

24—Powers and functions of Minister

(1) The Minister may exercise a power conferred on the Minister by Part 5 of the Commonwealth Act, including a power or function of the Minister as a member of a Joint Authority.

(2) If, in the exercise of a power conferred by Part 5 of the Commonwealth Act, the Minister appoints a deputy, the deputy may exercise the power conferred by that Act on the deputy of a member of a Joint Authority other than the Commonwealth Minister.

25—Judicial notice

All courts and persons acting judicially must take judicial notice of the signature of a person who is or has been a member of a Joint Authority or a deputy of a member of a Joint Authority and of the fact that the person is, or was at a particular time, a member or deputy.

26—Functions of Joint Authority

A Joint Authority has such functions in relation to a fishery in respect of which an arrangement is in force under Division 2 as are conferred on it by the law in accordance with which, under the arrangement, the fishery is to be managed.

27—Delegation

(1) A Joint Authority may, by instrument in writing, either generally or otherwise, delegate to a person any of its powers under this Act other than this power of delegation.

(2) If a power delegated under subsection (1) is exercised by the delegate, the power will, for the purposes of this Act, be taken to have been exercised by the Joint Authority.

(3) A delegation under this section may be expressed as a delegation to the person from time to time holding, or performing the duties of, a specified office, including an office—

(a) in the service of; or

(b) in the service of an authority of; or

the Commonwealth or another State of the Commonwealth.

(4) A delegate of a Joint Authority is, in the exercise of delegated powers, subject to the directions of the Joint Authority.

(5) A delegation under this section—

(a) may be revoked, by instrument in writing, by the Joint Authority (whether or not constituted by the persons constituting the Joint Authority at the time the power was delegated); and

(b) continues in force despite any change in the membership of the Joint Authority.

(6) A certificate signed by a member of a Joint Authority stating a matter with respect to a delegation under this section by the Joint Authority will, in the absence of proof to the contrary, be accepted as proof of the matter stated.

(7) In legal proceedings, an apparently genuine document purporting to be a certificate referred to in subsection (6) will, in the absence of proof to the contrary, be taken to be such a certificate and to have been duly given.

(8) Nothing in this Part is intended to prevent the delegation by a Joint Authority, in accordance with a law of the Commonwealth, of powers conferred on the Joint Authority by the law of the Commonwealth.

28—Procedure of Joint Authorities

(1) Sections 66 to 68 (inclusive) of the Commonwealth Act apply to and in relation to the performance by a Joint Authority of its functions under this Act.

(2) A written record of a decision of a Joint Authority, if signed by the Commonwealth Minister, or a deputy of that Minister, who took part in or made the decision will, in the absence of proof to the contrary, be accepted as proof that the decision, as recorded, was duly made.

(3) In proceedings in a court, an instrument or other document signed on behalf of a Joint Authority will be taken to have been duly executed by the Joint Authority and, unless the contrary is proved, will be taken to be in accordance with a decision of the Joint Authority.

29—Report of Joint Authority

The Minister must cause a copy of a report of a Joint Authority prepared under section 70 of the Commonwealth Act to be laid before each House of Parliament as soon as practicable after preparation of the report.

Division 2—Arrangements with Commonwealth with respect to management of particular fisheries

30—Arrangement for management of certain fisheries

(1) The State may, in accordance with section 74 of the Commonwealth Act, make an arrangement referred to in section 71 or 72 of that Act for the management of a particular fishery.

(2) An arrangement may be terminated or amended as provided by the Commonwealth Act.

(3) After an arrangement has been made but before the arrangement takes effect, authorities, endorsements and other instruments may be granted, issued, renewed, made or executed, and regulations, proclamations and notices may be made, for the purposes of the operation of this Act as affected by the arrangement, as if the arrangement had taken effect but such an authority, endorsement, instrument, regulation, proclamation or notice does not have effect before the arrangement takes effect.

(4) On termination of an arrangement, authorities, endorsements and other instruments granted, issued, renewed, made or executed, and regulations, proclamations and notices made, for the purposes of the operation of this Act as affected by the arrangement, cease to have effect.

(5) After action for the purpose of the termination of an arrangement has been taken but before the termination takes effect, authorities, endorsements and other instruments may be granted, issued, renewed, made or executed, and regulations, proclamations and notices may be made, for the purposes of the operation of this Act as affected by the termination of the arrangement, as if the arrangement had been terminated but such an authority, endorsement, instrument, regulation, proclamation or notice does not have effect before the termination of the arrangement takes effect.

31—Application of this Act to fisheries in accordance with arrangements

If there is in force an arrangement that provides that a particular fishery is to be managed in accordance with the law of the State (whether or not also in accordance with some other law), the provisions of this Act apply to and in relation to the fishery except that those provisions do not apply to or in relation to matters that occurred before the arrangement took effect.

32—Application of Commonwealth law to limits of State in accordance with arrangements

If there is in force an arrangement that provides that a particular fishery is to be managed in accordance with the law of the Commonwealth (whether or not also in accordance with some other law), the law of the Commonwealth applies to the limits of the State as a law of the State.

33—Functions of Joint Authority

(1) If, in respect of a fishery, there is in force an arrangement under which a Joint Authority has the management of the fishery and the fishery is to be managed in accordance with the law of the State (whether or not also in accordance with some other law), the Joint Authority has the functions of keeping constantly under consideration the condition of the fishery, formulating policies and plans for the good management of the fishery and, for the purposes of the management of the fishery, exercising the powers conferred on it by this Act and co-operating and consulting with other authorities (including other Joint Authorities within the meaning of the Commonwealth Act) in matters of common concern.

(2) A Joint Authority must, in the performance of its functions under this section, act consistently with, and seek to further, the objects of this Act.

34—Joint Authority to exercise certain powers instead of Minister or Director

(1) Subject to this section, an authority or endorsement granted, issued, renewed or made under this Act otherwise than by virtue of this section does not authorise the doing of an act or thing in or in relation to a Joint Authority fishery.

(2) The powers conferred before or after the commencement of this Part on the Minister or the Director, or the delegate of the Minister or the Director, by or under this Act (this Part excepted) or the regulations (including powers with respect to the grant, renewal, revocation and suspension of authorities) in respect of a Joint Authority fishery that is to be managed in accordance with the law of the State (whether or not also in accordance with some other law) are exercisable by the Joint Authority to the exclusion of the Minister or the Director or the delegate of the Minister or the Director.

(3) An authority granted under this Act by a Joint Authority will contain conditions and limitations that it does not apply in relation to a Joint Authority fishery, or Joint Authority fisheries, not managed by that Joint Authority.

(4) A Joint Authority may endorse an authority granted under this Act (including an authority granted by that Joint Authority or another Joint Authority) so as to extend the operation of the authority to matters to which the powers of the Joint Authority under this Act are applicable and, where such an endorsement is made—

(a) the endorsement ceases to have effect if the authority ceases to have effect; and

(b) the Joint Authority may suspend or revoke the endorsement as if it were an authority granted by the Joint Authority.

(5) Subject to section 37(1)(b) and (c), if, at a time a fishery becomes a Joint Authority fishery, a regulation, proclamation or notice under this Act that would, but for this subsection, apply to the fishery, the regulation, proclamation or notice (as the case may be) ceases so to apply.

(6) This section does not empower a Joint Authority to grant, or to take other action in respect of, an authority in respect of a foreign boat or to endorse such an authority.

35—Application of certain provisions relating to offences

For the purposes of the prosecution of a person for an offence under this Act in respect of anything done to or in relation to fish to which a Joint Authority fishery relates or otherwise in relation to a Joint Authority fishery, a reference in the provision creating the offence to an authority of a particular kind is to be read as a reference to such an authority, or an endorsement of such an authority, granted, issued, renewed or made by the relevant Joint Authority.

36—Presumption relating to certain statements

A statement in an arrangement to the effect that specified waters—

(a) in the case of an arrangement to which the Commonwealth and the State are the only parties—are waters adjacent to the State; and

(b) in the case of any other arrangement—are waters adjacent to the States that are parties to the arrangement or are waters adjacent to a specified State or States,

will, for the purposes of this Act, be conclusively presumed to be correct.

37—Regulations relating to Joint Authority fishery

(1) If a Joint Authority is to manage a fishery in accordance with the law of the State (whether or not also in accordance with some other law), the Governor may, for the purpose of giving effect to a decision of the Joint Authority—

(a) make regulations for the management of the fishery; or

(b) make a regulation applying to the fishery a regulation made otherwise than under this section; or

(c) vary a regulation made otherwise than under this section so that it is expressed to apply to the fishery, whether or not it also applies to any other fishery.

(2) The power conferred on the Governor to make regulations otherwise than under subsection (1) does not extend to the making of a regulation of a kind referred to in subsection (1)(a) or (b) or the amendment of a regulation in the manner referred to in subsection (1)(c).

(3) If a regulation affecting a fishery that is to be managed by a Joint Authority is expressed to be made under this section, it will be conclusively presumed that it was made for the purpose of giving effect to a decision of the Joint Authority.

Part 5—Management plans for commercial fishing, recreational fishing and aquatic reserves

40—Interpretation

In this Part, unless the contrary intention appears—

(a) a reference to an aquatic reserve includes a reference to waters, or land and waters, proposed to be constituted as an aquatic reserve;

(b) a reference to a draft management plan includes a reference to a draft variation to, or the draft revocation of, a management plan previously made under this Part;

(c) a reference to a fishery includes a reference to a class of fishing activities proposed to be constituted as a fishery;

(d) a reference to a management plan includes a reference to a variation to, or the revocation of, a management plan previously made under this Part.

41—Application of Part

This Part does not apply to an aboriginal traditional fishing management plan.

42—Duty of Council to prepare management plans

The Council must, if required by the Minister, prepare management plans for the following:

(a) classes of commercial fishing activities;

(b) classes of recreational fishing activities;

43—General nature and content of management plans

(1) A management plan must—

(a) be consistent with the objects of this Act; and

(b) be consistent with any relevant aboriginal traditional fishing management plan; and

(d) identify research needs and priorities; and

(e) set out the resources required to implement the plan; and

(f) take into account—

(i) the advice of any committee of the Council established for that purpose by the Council; and

(ii) the provisions of the Planning Strategy and any relevant Development Plan under the Development Act 1993; and

(iii) the provisions of any document prescribed for the purposes of this paragraph (insofar as is relevant to the operation of this Act and reasonably practicable).

(2) A management plan for a fishery must—

(a) identify the fishery to which the plan relates; and

(b) describe the biological, economic and social characteristics of the fishery; and

(c) identify the impacts or potential impacts of the fishery on its associated ecosystem or ecosystems, including impacts on non-target species of fish or other aquatic resources; and

(d) identify any ecological factors that could have an impact on the performance of the fishery; and

(e) assess the risks (if any) identified under paragraphs (c) and (d) to determine the most serious risks; and

(f) set out strategies for addressing those risks; and

(g) set out methods for monitoring the performance of the fishery and the effectiveness of the plan, including performance indicators, trigger points for review or action and progress reporting; and

(h) specify the share of aquatic resources that has been allocated to each fishing sector and prescribe a method, or establish a process for determining the method, for allocating aquatic resources between the different sectors when the plan takes effect, and for adjusting allocations during the term of the plan.

(3) A management plan may relate to more than 1 class of fishing activity or more than 1 aquatic reserve.

44—Procedure for preparing management plans

(1) The Council must, in relation to a proposal to prepare a management plan—

(a) by notice published in a newspaper circulating generally within the State, give notice of the intention to prepare the management plan with a description of the general purpose of the proposed management plan; and

(b) prepare a draft of the management plan; and

(c) seek the views of a representative of all signatories to any indigenous land use agreement that is in force in relation to any of the area to which the plan relates in relation to the draft.

(2) The Council must, after preparing a draft management plan, prepare a report containing—

(a) an explanation of the purpose and effect of the draft management plan; and

(b) a summary of the background and issues relevant to the draft management plan and of the analysis and reasoning applied in formulating the plan.

(3) The Council must, after preparing the draft management plan and related report—

(a) refer the plan and report to—

(i) the Minister; and

(ii) the representative of all signatories to any indigenous land use agreement that is in force in relation to any area to which the plan relates; and

(iii) any advisory committee whose area of responsibility is affected by the plan; and

(iv) any public authority whose area of responsibility is, in the opinion of the Council, particularly affected by the plan; and

(b) cause an advertisement to be published in a newspaper circulating generally in the State—

(i) giving notice of places at which the draft management plan and report (or copies of the draft management plan and report) are to be available for inspection and, if copies are to be available for purchase, places at which copies may be purchased; and

(ii) inviting interested persons to make written submissions in relation to the draft management plan within a period specified in the advertisement (being not less than 2 months from the date of publication of the advertisement); and

(iii) stating that the submissions will be available for inspection as provided by subsection (5); and

(iv) appointing a place and time at which a public hearing will be commenced by the Council in which interested persons may appear to be heard in relation to the draft management plan and the submissions.

(4) However, the Council may, in relation to a particular draft management plan, with the approval of the Minister, dispense with the requirement for the holding of a public hearing if satisfied that it is not warranted in the circumstances.

(5) If written submissions are made in response to an advertisement published under subsection (3)(b), a copy of those submissions must be made available for inspection by interested persons during ordinary business hours at the principal office of the Council from the end of the period specified for the making of submissions until the Council reports to the Minister on the draft management plan under this section.

(6) At the time and place appointed for a public hearing, interested person may appear and make submissions to the Council that are relevant to the draft management plan or the written submissions relating to the draft management plan.

(7) The Council must consult with and consider the advice of a public authority to whom the draft management plan has been referred on the provisions of the draft management plan, all matters raised as a result of public consultation under this section and alterations that the authority proposes should be made to the draft management plan.

(8) The Council must then report to the Minister and the Minister may, after taking into account the report and recommendations of the Council on the matter—

(a) adopt the draft management plan; or

(b) alter the draft management plan and adopt the draft management plan as altered; or

(9) A management plan has no force or effect until adopted by the Minister.

(10) On adopting a draft management plan, the Minister must cause notice of that fact to be published in the Gazette.

(11) The Minister must, in the Gazette notice adopting a management plan, fix a date on which the plan will take effect.

(12) A failure of the Council or the Minister to comply with a requirement of this section does not affect the validity of a management plan.

45—Tabling of management plans

The Minister must, within 12 sitting days after adopting a management plan, cause copies of the plan to be laid before both Houses of Parliament.

46—Procedure for making certain amendments to management plans

(1) The Minister may, by notice in the Gazette, amend a management plan—

(a) to correct an error; or

(b) to make a change of form (not involving a change of substance) in the plan; or

(d) if the plan or the regulations provide that a change of a specified kind may be made by amendment under this section—to make a change of that kind.

(2) An amendment under this section takes effect on the day fixed in the Gazette notice of the amendment.

47—Duration of management plans

(1) A management plan for a developmental fishery or part of such a fishery expires—

(a) on the third anniversary of its commencement; or

(b) on the expiry date specified in the plan,

whichever is the earlier.

(2) Any other management plan expires—

(a) on the tenth anniversary of its commencement; or

(b) on the expiry date specified in the plan,

whichever is the earlier.

48—Availability and evidence of management plans

(1) Copies of each management plan must be kept available for inspection and purchase by the public during ordinary office hours at a place or places determined by the Minister.

(2) In legal proceedings, evidence of the contents of a management plan may be given by production of a document certified by the Minister as a true copy of the plan.

(3) An apparently genuine document purporting to be a certificate of the Minister will be accepted as such in the absence of proof to the contrary.

49—Review of management plans

(1) The Council may review a management plan at any time.

(2) The Council must, as soon as practicable after the fifth anniversary of the commencement of a management plan, conduct a comprehensive review of the plan for the purpose of determining whether the plan should be amended or replaced.

(3) The Council must submit a report on the outcome of a review under this section to the Minister within 12 months after the commencement of the review.

(4) The Minister must, within 12 sitting days after receiving a report under this section, cause copies of the report to be laid before both Houses of Parliament.

50—Implementation of management plans

(1) The Minister must manage commercial and recreational fishing activities and aquatic reserves in accordance with any relevant management plan adopted by the Minister under this Part.

(2) This section does not affect the validity of an act or decision done or made under a provision of this Act (or any regulations under this Act).

Part 6—Regulation of fishing and processing

Division 1—Commercial fishing

51—Interpretation

In this Division—

authority means a licence, permit or registration;

licence means a fishery licence;

permit means a fishery permit;

registration means registration of any of the following:

(a) a boat;

(b) the master of a boat;

52—Obligation of commercial fishers to hold licence or permit

A person must not, for a commercial purpose, engage in a fishing activity of a class that constitutes a fishery unless—

(a) the person holds a licence or permit in respect of the fishery; or

(b) the person is acting as the agent of a person holding a licence or permit in respect of the fishery.

Maximum penalty:

(a) in the case of a body corporate—

(i) if the offence involves the taking of fish of a priority species or a fishing activity engaged in for the purpose of taking fish of a priority species—$500 000;

(ii) in any other case—$100 000 or imprisonment for 4 years;

(b) in the case of a natural person—

(i) if the offence involves the taking of fish of a priority species or a fishing activity engaged in for the purpose of taking fish of a priority species—$250 000;

(ii) in any other case—$50 000 or imprisonment for 2 years.

53—Obligation for boats and devices used in commercial fishing to be registered

(1) A person must not, for a commercial purpose, use a boat, or cause, suffer or permit a boat to be used, for the purpose of engaging in a fishing activity of a class that constitutes a fishery unless—

(a) the boat—

(i) is registered for use under a licence or permit in respect of the fishery held by him or her or a person for whom he or she is acting as an agent; or

(ii) is being used in the place of a boat referred to in subparagraph (i) with the consent of the Minister and in accordance with the conditions (if any) of that consent; and

(b) the boat is in the charge of a natural person who—

(i) is registered as the master of a boat that may be used under the licence or permit; or

(ii) is acting in the place of a person referred to in subparagraph (i) with the consent of the Minister and in accordance with the conditions (if any) of that consent.

Maximum penalty:

(a) in the case of a body corporate—$250 000;

(b) in the case of a natural person—$50 000.

(2) A person must not, for a commercial purpose, use a device, or cause, suffer or permit a device to be used, for the purpose of engaging in a fishing activity of a class that constitutes a fishery unless the device is registered for use under a licence or permit in respect of the fishery held by him or her or a person for whom he or she is acting as an agent.

Maximum penalty:

(a) in the case of a body corporate—$250 000;

(b) in the case of a natural person—$50 000.

54—Applications for licences, permits or registration

(1) An application for an authority must—

(a) be made in a manner and form approved by the Minister; and

(b) be signed by the applicant and completed in accordance with the instructions contained in the form; and

(2) An applicant must provide the Minister with such evidence as the Minister thinks appropriate as to the identity, age and address of the applicant and any other information required by the Minister for the purposes of determining the application.

(3) A licence or permit granted to a natural person may include a photograph of the holder of the licence or permit and, consequently, an applicant for a licence or permit who is a natural person may be required by the Minister—

(a) to attend at a specified place for the purpose of having the applicant's photograph taken; or

(b) to supply the Minister with 1 or more photographs of the applicant as specified by the Minister.

(4) An authority will not be issued by the Minister except on payment of the licence, permit or registration fee fixed by regulation or on payment (in accordance with the regulations) of an instalment of the relevant fee.

(5) The Minister may, by notice in writing, require an applicant for an authority, within a time fixed by the notice (which may not be less than 28 days after service of the notice), to comply with any requirement under this section to the Minister's satisfaction.

(6) If the applicant fails to comply with the notice under subsection (5), the Minister may, without further notice, refuse the application but keep the fee that accompanied the application.

(7) An application—

(a) for a licence or permit in respect of a fishery—will be determined by the Minister subject to, and in accordance with, the regulations for the fishery;

(b) for registration of a boat to be used pursuant to a licence or permit in respect of a fishery—will not be granted by the Minister unless he or she is satisfied—

(i) that the applicant is the holder of a licence or permit in respect of the fishery that is in force; and

(ii) as to the matters prescribed by the regulations for the fishery;

(c) for registration of a person as the master of a boat to be used pursuant to a licence or permit in respect of a fishery—will not be granted by the Minister unless he or she is satisfied—

(i) that the applicant is the holder of a licence or permit in respect of the fishery that is in force; and

(ii) that a boat is registered in the name of the applicant under this Division; and

(iii) that the person nominated as the proposed master is not disqualified from being registered as a master and is otherwise a fit and proper person to be master of the boat;

(d) for registration of a device to be used pursuant to a licence or permit in respect of a fishery—will not be granted by the Minister unless he or she is satisfied—

(i) that the applicant is the holder of a licence or permit in respect of the fishery that is in force; and

(ii) as to the matters prescribed by the regulations for the fishery.

(8) The Minister must, before determining an application that relates to, or is to apply in respect of, the River Murray, consult with the Minister for the River Murray.

(9) The Minister must refuse to grant an application for a fishery authority if—

(a) the applicant is disqualified from holding or obtaining a fishery authority; or

(b) the applicant is a body corporate and a director of the body corporate is disqualified from holding or obtaining a fishery authority.

(10) The Minister may refuse to grant an application for an authority in the following circumstances:

(a) the Minister is not satisfied the applicant is a fit and proper person to hold an authority of the kind to which the application relates;

(b) the Minister is of the opinion that the issue of the authority would be inconsistent with—

(i) an inter-governmental agreement or arrangement; or

(ii) any instrument made under this Act;

(i) the applicant does not produce the device for examination after being requested by the Minister to do so; or

(ii) the applicant could not lawfully use the device in the fishery even if it were registered;

(d) prescribed grounds for the refusal exist.

55—Conditions of licence, permit or registration

(1) An authority may be subject to such conditions as the Minister thinks fit and specifies in the authority.

(2) The Minister may at any time, by written notice given to the holder of an authority, vary or revoke a condition of the authority, or impose a further condition.

(3) The holder of an authority must not contravene a condition of the authority.

Maximum penalty:

(a) if the condition related to the holder's quota entitlement under the authority—$20 000;

(b) in any other case—$10 000.

Expiation fee: $500.

56—Duration of authority and periodic fee and return etc

(1) A licence remains in force (except for any period during which it is suspended) from the day on which it is granted—

(a) until it is surrendered or cancelled; or

(b) for a period (not exceeding 10 years) specified in the licence.

(2) A permit remains in force (except for any period during which it is suspended) from the day on which it is granted—

(a) until it is surrendered or cancelled; or

(b) for a period (not exceeding 3 years) specified in the permit.

(3) Subject to this Act, registration remains in force until the expiry of the relevant licence or permit if—

(a) if licence or permit is suspended under this Act for any period, the registration will be taken have been suspended for the same period; or

(b) the licence or permit is cancelled or surrendered under this Act, the registration will be taken to be have been cancelled or surrendered.

(4) If a person registered as the master of a boat used pursuant to an authority is disqualified from being so registered, the registration will be taken to have been cancelled.

(5) The holder of an authority must—

(a) in each year, pay to the Minister the relevant annual fee (in total or by instalments) in accordance with the regulations; and

(b) lodge with the Minister periodic returns in accordance with the regulations.

(6) If the holder of an authority fails to pay the relevant annual fee (or an instalment of the relevant annual fee) in accordance with this section, the Minister may, by written notice, require the person to make good the default specified in the notice and, in addition, pay to the Minister the amount prescribed as a penalty for default.

(7) If the holder of an authority fails to comply with a notice under subsection (6), the Minister may, by further written notice, suspend the person's authority until the notice under that subsection has been complied with.

(8) The Minister may, on application by the holder of the licence or permit on which any registration is endorsed, revoke the registration.

(9) In this section—

annual fee means the annual licence, permit or registration fee.

57—Transfer of licence or permit

(1) A licence or permit is not transferable.

(2) However, if the regulations for a fishery provides that licences or permits, or a class of licence or permit, in respect of the fishery are transferable, then, with the consent of the Minister, such a transfer may occur.

(3) An application for consent to the transfer of a licence or permit must—

(a) be a joint application made by the holder of the licence or permit and the transferee; and

(b) be made in a manner and form approved by the Minister; and

(d) be accompanied by the fee fixed by regulation.

(4) The Minister may only consent to the transfer of a licence or permit if—

(a) the Minister is satisfied as to the matters prescribed by the regulations for the fishery; and

(b) where the register of authorities includes a notation that a specified person has an interest in the licence or permit—that person consents to the transfer.

(5) If a licence or permit is transferable, the registration of a boat used under the licence or permit is also transferable.

(6) If—

(a) a licence or permit is transferable; and

(b) the holder of the licence or permit dies,

the licence or permit (as the case may be) vests in the personal representative of the deceased (whether the personal representative is a natural person or body corporate) as part of the estate of the deceased but cannot be transferred in the course of the administration of the estate except with the consent of the Minister.

(7) If a deceased licence or permit holder was, immediately before his or her death, registered as the master of a boat that may be used under the licence or permit—

(a) the boat may, while the licence or permit remains vested in the personal representative of the deceased, continue to be used for the purpose of engaging in fishing activities under the licence or permit if it is in the charge of a person who is acting with the consent of the Minister and in accordance with the conditions of that consent; and

(b) a person so acting will be taken to be acting under section 53(b)(ii).

(8) A licence or permit that vests in the personal representative of a deceased licence or permit holder will, if it is not transferred within 2 years after the death of the licence or permit holder or such further period as may be approved by the Minister, be suspended pending such transfer.

(9) In this section—

personal representative means—

(a) the executor of the will or administrator of the estate of the deceased licence or permit holder; or

(b) in relation to any period for which there is not an executor or administrator—the Public Trustee.

58—Obligation to carry authority and identification while engaging in fishing activities

(1) Subject to the regulations, the holder of a licence or permit (being a natural person) must, at all times when he or she is engaging in any fishing activity under the licence or permit, carry with him or her—

(a) the licence or permit; and

(b) identification in the form issued by the Minister.

Maximum penalty: $2 500.

Expiation fee: $210.

(2) Subject to the regulations, if a registered boat is being used on any waters for any purpose, the person in charge of the boat must carry with him or her—

(a) the licence or permit under which the boat may be used for the purpose of taking aquatic resources; and

(b) identification in the form issued by the Minister.

Maximum penalty: $2 500.

Expiation fee: $210.

(3) Subject to the regulations, if a registered device is being used in or on any waters for any purpose—

(a) if the device is not being used on or from a boat, the person using the device must carry with him or her—

(i) the licence or permit under which the device may be used; and

(ii) identification in the form issued by the Minister;

(b) in any other case, the person in charge of the boat must carry with him or her—

(i) the licence or permit under which the device may be used; and

(ii) identification in the form issued by the Minister.

Maximum penalty: $2 500.

Expiation fee: $210.

Division 3—Processing

61—Obligation of fish processors to be registered

(1) A person must not act as a fish processor unless he or she is registered as a fish processor under this Division.

Maximum penalty:

(a) in the case of a body corporate—$50 000;

(b) in the case of a natural person—$10 000.

(2) However, a person is not required to be registered as a fish processor if—

(a) the person only processes aquatic resources obtained from a registered fish processor; or

(b) the person—

(i) is the holder of a fishery authority or aquaculture licence; and

(ii) only processes aquatic resources taken under the fishery authority, or aquatic resources farmed under the aquaculture licence (as the case may be) for sale to a registered fish processor or directly to persons who consume such aquatic resources; or

(3) A registered fish processor must not use any premises, place, boat or vehicle for or in connection with processing, storing, transporting or dealing with aquatic resources unless the premises, place, boat or vehicle is specified in the certificate of registration.

Maximum penalty:

(a) in the case of a body corporate—$50 000;

(b) in the case of a natural person—$10 000.

Expiation fee: $500.

(4) Aquatic resources present in any premises, place, boat or vehicle specified in the certificate of registration of a registered fish processor will be taken to be present for a commercial purpose.

62—Classes of registration

(1) There are the following classes of registration of fish processor for the purposes of this Act:

(a) fish processors registration—registration authorising a person—

(i) to engage in any activity involved in processing aquatic resources for the purposes of trade or business; and

(ii) to store, transport and deal with aquatic resources for the purposes of trade or business;

(b) restricted registration—registration as a fish processor subject to conditions limiting the activities authorised under the registration—

(i) to the storage of aquatic resources; or

(ii) to the transport of aquatic resources; or

(iii) to the buying and selling of aquatic resources on behalf of another without ever taking physical possession of the aquatic resources; or

(iv) to such activities involving the processing of aquatic resources as the Minister thinks fit.

(2) Conditions limiting the activities that may be carried out under the authority of registration—

(a) may be imposed by the Minister on the grant of the registration; and

(b) may be varied or revoked by the Minister at any time on application by the registered fish processor.

63—Applications for registration

(1) An application for registration as a fish processor must—

(a) be made in a manner and form approved by the Minister; and

(b) be signed by the applicant and completed in accordance with the instructions contained in the form; and

(c) specify the premises, places, boats and vehicles proposed to be used by the applicant for or in connection with processing, storing, transporting or dealing with aquatic resources; and

(d) be accompanied by the fee fixed by regulation or an instalment of the fee in accordance with the regulations.

(3) The Minister may refuse to grant an application for registration in the following circumstances:

(a) the Minister is not satisfied the applicant is a fit and proper person to hold registration of the kind to which the application relates;

(b) prescribed grounds for the refusal exist.

(4) Registration will not be granted by the Minister except on payment of the registration fee fixed by regulation or on payment (in accordance with the regulations) of an instalment of the registration fee.

64—Conditions of registration

(1) It is a condition of registration as a fish processor that the processor will only process, store, transport or deal with aquatic resources of a class specified in the registration.

(2) Registration as a fish processor may be subject to such other conditions (in addition to conditions limiting the activities that may be carried out under the authority of the registration) as the Minister thinks fit and specifies in the registration.

(3) The Minister may at any time, by written notice given to a registered fish processor, vary or revoke a condition of the registration, or impose a further condition.

(4) A registered fish processor must not contravene a condition of the registration.

Maximum penalty:

(a) in the case of a body corporate—$50 000;

(b) in the case of a natural person—$10 000.

Expiation fee: $500.

65—Duration of registration and periodic fee and return etc

(1) Registration remains in force (except for any period during which it is suspended) from the day on which it is granted—

(a) until it is surrendered or cancelled; or

(b) for a period (not exceeding 3 years) specified in the registration.

(2) A registered fish processor must—

(a) in each year, pay to the Minister the annual fee (in total or by instalments) in accordance with the regulations; and

(b) lodge with the Minister periodic returns in accordance with the regulations.

(3) If a registered fish processor fails to pay the annual fee (or an instalment of the annual fee) in accordance with this section, the Minister may, by written notice, require the person to make good the default and, in addition, pay to the Minister the amount prescribed as a penalty for default.

(4) If a registered fish processor fails to comply with a notice under subsection (3), the Minister may, by further written notice, suspend the person's registration until the notice under that subsection has been complied with.

(5) The Minister will, on granting an application for registration, specify in the certificate of registration the premises, places, boats and vehicles proposed to be used by the registered fish processor for or in connection with processing, transporting, storing or dealing with aquatic resources.

Part 7—Offences

Division 1—Offences relating to fishing activities

69—Prescribed fishing activities prohibited

A person must not engage in a fishing activity of a prescribed class.

Maximum penalty:

(a) if the fishing activity involves fish of a priority species—

(i) for a first offence—$10 000;

(ii) for a second offence—$20 000;

(iii) for a third or subsequent offence—$35 000;

(b) in any other case—

(i) for a first offence—$5 000;

(ii) for a second offence—$10 000;

(iii) for a third or subsequent offence—$20 000.

Expiation fee: A fee determined in accordance with the regulations.

70—Taking, injuring etc aquatic mammals and protected species prohibited

(1) A person must not—

(a) take an aquatic mammal or aquatic resource of a protected species; or

(b) injure, damage or otherwise harm an aquatic mammal or aquatic resource of a protected species.

Maximum penalty:

(a) if the offence involves an aquatic mammal—

(i) in the case of a body corporate—$250 000;

(ii) in the case of a natural person—$100 000 or imprisonment for 2 years;

(b) in any other case—

(i) for a first offence—

(A) in the case of a body corporate—$50 000;

(B) in the case of a natural person—$10 000;

(ii) for a second or subsequent offence—

(A) in the case of a body corporate—$100 000;

(B) in the case of a natural person—$20 000.

Expiation fee: In the case of an offence not involving an aquatic mammal—$500.

(2) A person must not—

(a) interfere with, harass or molest an aquatic mammal or aquatic resource of a protected species; or

(b) cause or permit interference with, harassment or molestation of, an aquatic mammal or aquatic resource of a protected species.

Maximum penalty:

(a) if the offence involves an aquatic mammal—

(i) in the case of a body corporate—$250 000;

(ii) in the case of a natural person—$100 000 or imprisonment for 2 years;

(b) in any other case—

(i) for a first offence—

(A) in the case of a body corporate—$50 000;

(B) in the case of a natural person—$10 000;

(ii) for a second or subsequent offence—

(A) in the case of a body corporate—$100 000;

(B) in the case of a natural person—$20 000.

Expiation fee: In the case of an offence not involving an aquatic mammal—$500.

(3) In proceedings for an offence against this section, it is a defence if the defendant proves—

(a) that the alleged offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence; or

(b) that the act alleged to constitute the offence was authorised by or under some other Act or law.

71—Sale, purchase or possession of aquatic resources without authority prohibited

(1) Subject to this section, if a person sells or purchases an aquatic resource taken in waters to which this Act applies but not under an authority, the person is guilty of an offence.

Maximum penalty:

(a) in the case of body corporate—

(i) if the offence involves the sale or purchase of fish of a priority species—$250 000;

(ii) in any other case—$100 000;

(b) in the case of a natural person—

(i) if the offence involves the sale or purchase of fish of a priority species—$50 000 or imprisonment for 4 years;

(ii) in any other case—$20 000 or imprisonment for 2 years.

(2) Subject to this section, if a person sells or purchases, or has possession or control of—

(a) an aquatic resource taken in contravention of this Act or a corresponding law; or

(b) an aquatic resource of a protected species; or

the person is guilty of an offence.

Maximum penalty:

(a) in the case of a body corporate—

(i) if the offence involves the sale or purchase of fish of a priority species or the possession or control of fish of a priority species for the purposes of sale—$250 000;

(ii) in any other case—$100 000;

(b) in the case of a natural person—

(i) if the offence involves the sale or purchase of fish of a priority species or the possession or control of fish of a priority species for the purposes of sale—$50 000 or imprisonment for 4 years;

(ii) in any other case—$20 000.

(3) In proceedings for an offence against subsection (2)—

(a) if it is proved that a person had a commercial quantity of an aquatic resource of any species in his or her possession or control, it will be presumed, in the absence of proof to the contrary, that the person had that aquatic resource in his or her possession or control for the purposes of sale;

(b) if it is proved that a person had a commercial quantity of an aquatic resource of any species in his or her possession or control in circumstances in which it is reasonable to presume that the aquatic resources were taken by that person in waters to which this Act applies, it will be presumed, in the absence of proof to the contrary, that the person took the aquatic resources from such waters.

(4) Regulations made for the purposes of subsection (2)(c) may prescribe a class of aquatic resource comprised of or including an aquatic resource taken elsewhere than in waters to which this Act applies.

(5) In proceedings for an offence against this section, it is a defence if the defendant proves—

(a) —

(i) that the aquatic resources to which the proceedings relate—

(A) were purchased from a person whose ordinary business was the selling of such aquatic resources; and

(B) were purchased in the ordinary course of that business; or

(ii) that the defendant did not take the aquatic resources in contravention of this Act or a corresponding law; and

(b) that the defendant did not know, and had no reason to believe, that the aquatic resources were (as the case may be)—

(i) aquatic resources taken in waters to which this Act applies but not under an authority; or

(ii) aquatic resources taken in contravention of this Act or a corresponding law; or

(iii) aquatic resources of a protected species; or

(iv) aquatic resources of a prescribed class.

(6) In proceedings for an offence against subsection (2) relating to aquatic resources of a class prescribed for the purposes of that subsection, if it is proved—

(a) that the defendant was not—

(i) the holder of an authority authorising the taking of aquatic resources of that class; or

(ii) a registered fish processor; and

(b) that the defendant sold or purchased or had possession or control of more than the prescribed quantity of aquatic resources of that class,

the offence is proved unless the defendant establishes the defence under subsection (5).

72—Possession of prescribed quantity of aquatic resource in prescribed circumstances

(1) A person must not, in prescribed circumstances, have in his or her possession a quantity of fish or other aquatic resource exceeding the quantity fixed by the regulations for the purposes of this section.

Maximum penalty:

(a) if the fishing activity involves fish of a priority species—

(i) for a first offence—$10 000;

(ii) for a second offence—$20 000;

(iii) for a third or subsequent offence—$35 000;

(b) in any other case—

(i) for a first offence—$5 000;

(ii) for a second offence—$10 000;

(iii) for a third or subsequent offence—$20 000.

Expiation fee: $315.

(2) In proceedings for an offence against this section, it is a defence if the defendant proves that—

(a) the fish or other aquatic resource was taken for a commercial purpose under an authority; or

(b) the fish or other aquatic resource was kept under an aquaculture licence; or

73—Unauthorised trafficking in fish of priority species prohibited

(1) A person must not, unless authorised to do so under this Act—

(a) traffic in a commercial quantity of fish of a priority species; or

(b) have possession or control of a commercial quantity of fish of a priority species.

Maximum penalty:

(a) in the case of a body corporate—$500 000;

(b) in the case of a natural person—$100 000 or imprisonment for 4 years.

(2) In subsection (1)—

traffic in fish includes—

(a) sell fish; and

(b) take fish for sale; and

(d) process fish; and

(e) engage in any act preparatory to an act referred to in a preceding paragraph.

74—Interference with lawful fishing activities prohibited

(1) A person must not, without reasonable excuse—

(a) obstruct or interfere with a lawful fishing activity; or

(b) interfere with aquatic resources taken in the course of a lawful fishing activity.

Maximum penalty: $5 000.

Expiation fee: $315.

(2) If a person is obstructing or interfering with a lawful fishing activity in contravention of subsection (1), the person must, at the request of a person engaged in the lawful fishing activity, cease or discontinue the obstructive conduct or interference or remove the obstruction.

Maximum penalty: $5 000.

Expiation fee: $315.

(3) A court by which a person is found guilty of an offence against this section may, whether or not a penalty is imposed, order the defendant to pay to a person affected by the commission of the offence such compensation as the court considers proper for loss or damage suffered by that person as a result of the commission of the offence.

South Australian Bills

FISHERIES MANAGEMENT BILL 2006