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TASMANIA
__________
LIVING MARINE RESOURCES MANAGEMENT
(MISCELLANEOUS AMENDMENTS) BILL 2006
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 3 amended (Interpretation)
5. Section 6A inserted
6A. Meaning of possession
6. Section 11 substituted
11. Exemption from Act
7. Section 12 amended (Permits)
8. Section 13 amended (Grant of permit)
9. Section 15 amended (Condition of permit)
10. Section 22 substituted
22. Inquiries
11. Section 40D amended (General provisions relating to rules)
12. Section 42 substituted
42. Offences and penalties
13. Section 49 amended (Order changing management plan)
14. Section 59 amended (Emergency order)
15. Section 60 amended (Fishing licence)
16. Section 66A inserted
[Bill 42]-III
66A. Marine farming licence depends on marine farming
lease
17. Section 67 amended (Fish processing licence)
18. Section 68 substituted
68. Processing fish
19. Section 77 amended (Applications)
20. Section 78 amended (Grant of licence)
21. Section 81 amended (Renewal of licence)
22. Section 82 amended (Transfer of licence)
23. Section 83 amended (Variation of licence)
24. Section 86 repealed
25. Section 86A amended (Compliance with conditions)
26. Section 87 amended (Prohibition on use of licence by other
persons)
27. Section 89 amended (Supervision of activities)
28. Sections 90 and 92 substituted
90. Cancellation or suspension of licence
92. Surrender of licence
29. Sections 98A and 98B repealed
30. Section 98C amended (Allocation of rock lobster quota units)
31. Sections 98D, 98E, 98F, 98G, 98H, 98I, 98J, 98K and 98L
repealed
32. Section 104 substituted
104. Rules
33. Section 113 amended (Compliance with marine management
plan)
34. Section 126 amended (Importation of live fish)
35. Section 129 amended (Possession of noxious fish)
36. Section 133 amended (Conditions of approval)
37. Section 134 amended (Revocation of approval)
38. Section 136 amended (Notice to restore fish habitat)
39. Section 137 amended (Minister may take action)
40. Section 139 amended (Protection of marine plant)
2
41. Section 147 substituted
147. Scientific observers
42. Section 161 amended (Arrangements with Commonwealth)
43. Section 197 amended (Application and issue of warrant)
44. Section 200 amended (Seizure of fish, vessels and other things)
45. Section 204 amended (Contravention of requirement, direction
or signal)
46. Section 209 amended (Defence for accidental taking of fish)
47. Section 210 amended (Liability of master of vessel)
48. Section 211 amended (Liability of employer)
49. Section 212 substituted
212. Liability of person concerned in management of
body corporate
50. Section 213 amended (Liability of holder of authorisation
regarding offence by agent)
51. Section 213A inserted
213A. Liability of holder of licence regarding offence by
supervisor
52. Section 214 substituted
214. Liability of supervisors
53. Section 221 substituted
221. Certificates relating to licensing and statistical
matters
54. Section 223 amended (Accuracy of measuring equipment)
55. Section 225 amended (Forfeiture on conviction)
56. Section 226 amended (Forfeiture on acceptance of infringement
notice)
57. Section 231 amended (Release of seized property)
58. Section 235 amended (Form of infringement notice)
59. Section 236 amended (Petty sessions courts)
60. Section 242 substituted
242. Allocation of demerit points on conviction
61. Section 244 amended (Allocation of demerit points)
62. Section 245 substituted
245. Period for which demerit points remain in force
3
63. Section 246 amended (Permanent disqualification from
obtaining licence)
64. Section 246A inserted
246A. Temporary disqualification from obtaining licence
65. Section 247 amended (Accumulation of demerit points suspends
licence, &c.)
66. Section 253 amended (Issue of control order)
67. Section 257 amended (Interfering with apparatus)
68. Section 258 amended (Use of foreign boat)
69. Section 259 amended (Foreign boat equipped with apparatus)
70. Section 262 amended (Possession, purchase or sale of illegally
taken fish)
71. Part 9, Division 9 substituted
Division 9 Indictable offences
263A. Prosecution of offences
264. Unlawful possession of fish
264A. Trafficking in fish
265. False or misleading records
266. Application of certain Act
72. Section 267 amended (Illegally taking or possessing fish, &c.)
73. Section 268 amended (Illegal use of apparatus)
74. Section 272 amended (Requirements made by order)
75. Section 279 amended (Industry levy)
76. Section 285 amended (Regulations in general)
77. Section 302 substituted
302. Geocentric Datum of Australia
78. Section 306 repealed
79. Section 308 repealed
80. Section 310 repealed
81. Validation
82. Meaning of certain penalties specified in rules, &c.
4
LIVING MARINE RESOURCES MANAGEMENT
(MISCELLANEOUS AMENDMENTS) BILL 2006
(Brought in by the Minister for Primary Industries and Water,
the Honourable David Edward Llewellyn)
A BILL FOR
An Act to amend the Living Marine Resources Management
Act 1995 and for related purposes
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
1. Short title
This Act may be cited as the Living Marine
Resources Management (Miscellaneous
Amendments) Act 2006.
2. Commencement
(1) This Act, other than section 77, commences on
the day on which it receives the Royal Assent.
(2) Section 77 commences on 1 March 2007.
[Bill 42] 5
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 3
3. Principal Act
In this Act, the Living Marine Resources
Management Act 1995* is referred to as the
Principal Act.
4. Section 3 amended (Interpretation)
Section 3 of the Principal Act is amended as
follows:
(a) by inserting the following definition after
the definition of "Aborigine":
"adult" means a natural person who
has attained the age of 18 years;
(b) by omitting the definition of "maximum
number of pots";
(c) by omitting the definition of
"possession" and substituting the
following definition:
"possession" see section 6A;
(d) by omitting the definition of "process"
and substituting the following definition:
"process", in relation to any fish,
means to
(a) void or purge the fish; or
*No. 25 of 1995
6
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 4
(b) break up, cut up, skin or
fillet the fish; or
(c) shell or shuck the fish; or
(d) dry, cure, smoke or cook
the fish; or
(e) chill the fish (either dead
or alive); or
(f) freeze the fish; or
(g) pack the fish (either dead
or alive); or
(h) can the fish; or
(i) treat the fish by any other
means; or
(j) hold the fish in readiness
for processing by any
means;
(e) by omitting the definition of
"recreational fishing" and substituting
the following definition:
"recreational fishing" means fishing
carried out other than
(a) for a commercial purpose;
or
(b) as part of an Aboriginal
cultural activity;
7
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 4
(f) by omitting the definitions of "rock
lobster catch history", "rock lobster catch
history unit", "rock lobster fishery A"
and "rock lobster fishery B";
(g) by omitting the definition of "rock
lobster quota unit" and substituting the
following definition:
"rock lobster quota unit", for a quota
period, means a unit that is an
entitlement to one 10 507th of the
total allowable catch set for the
commercial rock lobster fishery
for that quota period;
(h) by inserting "or in the expectation of
receiving any kind of reward" after
"consideration" in paragraph (a) of the
definition of "sale";
(i) by omitting "or chance;" from paragraph
(i) of the definition of "sale" and
substituting "of chance; and";
(j) by inserting the following paragraph after
paragraph (i) in the definition of "sale":
(j) resale;
(k) by omitting the definitions of "scientific
observer" and "scientific observer
scheme";
(l) by omitting the definition of "take fish"
and substituting the following definition:
8
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 4
"take", in relation to fish, includes
any of the following activities
(except where the activity is
authorised under a marine
farming licence or fish processing
licence):
(a) capture, carry away,
catch, collect, destroy,
dredge or fish for, gather,
kill, raise, remove or in
any other way obtain the
fish (whether from water,
land under water or the
foreshore);
(b) land the fish from a vessel
or in any other way bring
the fish ashore;
(c) transfer the fish from one
fishing vessel to another
fishing vessel;
(d) attempt, cause or permit
an act referred to in
paragraph (a), (b) or (c);
(m) by omitting the definitions of "year",
"yearly catch" and "yearly catch
history".
9
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 5
5. Section 6A inserted
After section 6 of the Principal Act, the
following section is inserted in Division 1:
6A. Meaning of possession
(1) A person is taken to be in possession of
something for the purposes of this Act if
the person has, either alone or jointly
with others, actual possession or actual
custody of the thing.
(2) A person is also taken to be in possession
of something for the purposes of this Act
if
(a) the thing is at or in a place that
the person, either alone or jointly
with others, occupies; or
(b) the person, either alone or jointly
with others, enjoys the thing at or
in any place; or
(c) the person has, whether it is
exercised for the person's own
benefit or for the benefit of
others, any control over the thing.
(3) Subsection (2) applies whether or not any
other person has actual possession or
actual custody of the thing.
10
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 6
(4) However, subsection (2)(a) does not
apply if the person proves that the person
had no knowledge of the thing.
6. Section 11 substituted
Section 11 of the Principal Act is repealed and
the following section is substituted:
11. Exemption from Act
(1) The Minister, by instrument in writing,
may exempt a person or a class of
persons from any provision of this Act.
(2) The exemption may be granted on the
Minister's own initiative or consequent
on an application made by or on behalf
of the person or class of persons.
(3) The Minister, having regard to any
relevant considerations, may grant the
exemption
(a) for such period not exceeding 3
years as the Minister thinks fit;
and
(b) on such conditions, if any, as the
Minister thinks fit.
(4) The Minister, by instrument in writing,
may at any time
11
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 6
(a) vary the conditions of the
exemption, if any; or
(b) revoke the exemption.
(5) The Minister is to ensure that each
person who has the benefit of the
exemption is given adequate advance
notice of the variation of its conditions or
of its revocation.
(6) However, in the case of a class
exemption where not all members of the
class are individually known, notice
under subsection (5) may be given by
means of a public notice.
(7) The exemption remains in force until the
first of the following occurs:
(a) the period for which the
exemption has been granted
expires;
(b) the exemption is revoked.
(8) A person must not contravene a
condition of an exemption granted under
this section.
Penalty: Fine not exceeding 500 penalty
units or imprisonment for a term
not exceeding 6 months, or both,
and a daily fine not exceeding 5
penalty units.
12
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 6
(9) In this section
"relevant consideration", in relation
to the granting of an exemption,
includes
(a) the reasons for, and the nature
and scope of, the exemption; and
(b) the purpose and objectives of this
Act set out in section 7; and
(c) whether the exemption is likely to
yield any commercial,
educational, environmental,
economic, scientific or other
benefit (either locally, nationally
or internationally) having
particular regard to fisheries or
allied industries; and
(d) whether the exemption is likely to
involve any risk to the State's
fisheries or allied industries; and
(e) whether the objects of the
exemption are reasonably capable
of being attained by other means;
and
(f) the likely impact of the
exemption, if any, on the
operation of any management
plan; and
13
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 7
(g) whether the exemption will be
fair having regard to the interests
and obligations of any existing
licence and permit holders; and
(h) the character and antecedents of
any person who will have the
benefit of the exemption; and
(i) the Crown's experience with any
exemptions of a similar kind; and
(j) compliance monitoring
requirements.
7. Section 12 amended (Permits)
Section 12 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1)(h) "Act."
and substituting "Act;";
(b) by inserting the following paragraphs
after paragraph (h) in subsection (1):
(i) Aboriginal cultural and
ceremonial activities;
(j) the development of marine
farming;
(k) law enforcement;
(l) environmental monitoring;
14
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 8
(m) bio-prospecting.
(c) by omitting paragraph (a) from
subsection (4) and substituting the
following paragraph:
(a) issue permits authorising the
taking of actions which would
otherwise contravene provisions
of this Act; and
(d) by omitting from subsection (4)(b) "a"
and substituting "any such";
(e) by omitting from subsection (4)(c)
"paragraph (b)." and substituting
"paragraph (b); and";
(f) by inserting the following paragraph after
paragraph (c) in subsection (4):
(d) determine the conditions of any
such permit.
8. Section 13 amended (Grant of permit)
Section 13 of the Principal Act is amended as
follows:
(a) by omitting from subsection (2)(b)
"section 12(1)(b), (c), (d) or (f)" and
substituting "section 12(1)(b), (c), (d), (f)
or (j)";
15
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 9
(b) by inserting the following subsection
after subsection (2):
(3) However, subsection (2) does not
apply to a permit for the purpose
specified in section 12(1)(k).
9. Section 15 amended (Condition of permit)
Section 15(2) of the Principal Act is amended by
omitting "fail to comply with, or contravene,"
and substituting "contravene".
10. Section 22 substituted
Section 22 of the Principal Act is repealed and
the following section is substituted:
22. Inquiries
(1) The Minister, by instrument in writing,
may direct a qualified person to conduct
an inquiry into a matter under this Act.
(2) Sections 8 and 33, and Part 3 of the
Commissions of Inquiry Act 1995 (other
than sections 17, 18, 19 and 23 of that
Part) apply to the inquiry as if
(a) the qualified person conducting it
were a Commission established
under section 4 of that Act; and
16
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 11
(b) the subject of the inquiry were the
matter into which that
Commission had been directed to
inquire under that Act.
(3) In this section
"qualified person" means
(a) the Secretary; or
(b) a person who, in the
Minister's estimation, has
qualifications, expertise
or experience relevant to
the subject of the inquiry.
11. Section 40D amended (General provisions relating
to rules)
Section 40D of the Principal Act is amended by
inserting after subsection (2) the following
subsections:
(3) Rules may authorise any matter to be
from time to time determined, applied or
regulated by
(a) the Minister; or
(b) the Secretary or another fisheries
officer.
(4) Rules that are made wholly or partly in
substitution for other rules may contain
17
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 12
provisions of a savings and transitional
nature.
12. Section 42 substituted
Section 42 of the Principal Act is repealed and
the following section is substituted:
42. Offences and penalties
(1) Rules made under this Division may
provide that
(a) a contravention of any of the
rules is an offence; and
(b) in respect of any such offence,
provide for the imposition of
(i) a penalty of either or both
of the following:
(A) imprisonment for
a term not
exceeding 2 years;
(B) a fine not
exceeding 5 000
penalty units and,
in the case of a
continuing
offence, a further
fine not exceeding
10 penalty units
for each day
18
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 13
during which the
offence continues;
or
(ii) a penalty specified in the
regulations.
(2) Rules made under this Division may
(a) provide that an offence under the
rules is a prescribed offence for
the purposes of Division 5 of
Part 9 (an offence in respect of
which an infringement notice
may be served); and
(b) prescribe the penalty or special
penalty, or both, for that
prescribed offence.
13. Section 49 amended (Order changing management
plan)
Section 49(3)(f) of the Principal Act is amended
by omitting "fine" and substituting "penalty".
14. Section 59 amended (Emergency order)
Section 59(5) of the Principal Act is amended by
omitting "fail to comply with" and substituting
"contravene".
19
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 15
15. Section 60 amended (Fishing licence)
Section 60(2) of the Principal Act is amended by
omitting paragraph (ba) and substituting the
following paragraph:
(ba) a person who carries out an activity
specified in subsection (1), other than
taking fish with a spear or by diving,
under the close direct supervision of
(i) a natural person who is the holder
of a fishing licence; or
(ii) a supervisor; or
16. Section 66A inserted
After section 66 of the Principal Act, the
following section is inserted in Division 2:
66A. Marine farming licence depends on marine
farming lease
(1) The Minister must cancel a marine
farming licence if the holder of the
licence
(a) ceases for any reason to hold a
lease under the Marine Farming
Planning Act 1995 for the area to
which the licence relates; and
(b) is not, under that Act, being
granted a new lease for that area.
20
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 17
(2) The cancellation takes effect as soon as
the holder of the licence is given written
notice of it by the Minister.
(3) In this section
"lease" means a lease of any kind
within the meaning of the Marine
Farming Planning Act 1995.
17. Section 67 amended (Fish processing licence)
Section 67 of the Principal Act is amended as
follows:
(a) by omitting subsection (1) and
substituting the following subsection:
(1) A person who does not hold a
fish processing licence must not,
for commercial purposes,
process
(a) abalone, giant crab, rock
lobster or scallop; or
(b) more than a prescribed
quantity of prescribed fish
during a prescribed
period.
Penalty: Fine not exceeding 500
penalty units and a daily
fine not exceeding 10
penalty units.
21
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 17
(b) by inserting the following paragraph after
paragraph (c) in subsection (2):
(ca) by the holder of a marine farming
licence if the fish have been
produced under the authority of
any marine farming licence and
are being packed live, or being
held in readiness to be packed
live, for sale; or
(c) by inserting the following subsection
after subsection (3):
(4) In this section
"abalone" means fish of the
genus Haliotis;
"giant crab" means crab of
the species
Pseudocarcinus gigas;
"rock lobster" means rock
lobster of the genus Jasus;
"scallop" means fish of the
species
(a) Equichlamys
bifrons
(commonly known
as queen scallop);
or
22
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 18
(b) Pecten fumatus
(commonly known
as commercial
scallop); or
(c) Mimachlamys
asperrimus
(commonly known
as doughboy
scallop).
18. Section 68 substituted
Section 68 of the Principal Act is repealed and
the following section is substituted:
68. Processing fish
(1) A fish processing licence is to specify the
places where the fish that it authorises to
be processed may be processed.
(2) Under subsection (1), a place may be
specified as
(a) a place where fish of any kind
may be processed; or
(b) a place where only fish of a
particular kind may be processed.
(3) The holder of a fish processing licence
must not process fish at a place other
than the place specified for that purpose
in the licence.
23
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 19
Penalty: Fine not exceeding 500 penalty
units.
(4) The holder of a fish processing licence
must not
(a) have, at a place specified in the
licence pursuant to
subsection (1), fish that have been
taken illegally; or
(b) cause or allow another person to
have, at a place specified in the
licence pursuant to
subsection (1), fish that have been
taken illegally.
Penalty: Fine not exceeding 500 penalty
units or imprisonment for a term
not exceeding 2 years, or both.
19. Section 77 amended (Applications)
Section 77(2) of the Principal Act is amended by
omitting "a natural person" and substituting "an
adult".
20. Section 78 amended (Grant of licence)
Section 78(1) of the Principal Act is amended as
follows:
24
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 21
(a) by inserting the following paragraph after
paragraph (f):
(fa) the applicant is, in the case of a
natural person who is applying
for a licence for commercial
purposes, an adult; and
(b) by omitting from paragraph (g)
"charges." and substituting "charges;
and";
(c) by inserting the following paragraph after
paragraph (g):
(h) it is appropriate to do so.
21. Section 81 amended (Renewal of licence)
Section 81 of the Principal Act is amended as
follows:
(a) by inserting in subsection (1) ", before it
ceases to be in force," after "may";
(b) by omitting from subsection (2) "a" first
occurring and substituting "the";
(c) by inserting the following paragraph after
paragraph (e) in subsection (2):
(ea) the applicant is, in the case of a
natural person who is applying
for the renewal of a licence for
25
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 22
commercial purposes, an adult;
and
(d) by omitting from subsection (4) "The
Minister may refuse to renew a fish
processing" and substituting "Also, in the
case of a fish processing licence, the
Minister may refuse to renew the";
(e) by inserting the following subsection
after subsection (4):
(5) If the application for the renewal
of the licence is not determined
by the Minister before the day on
which it ceases to be in force, it
is, despite section 80, taken to
continue in force until it is
renewed or its renewal is refused
under this section.
22. Section 82 amended (Transfer of licence)
Section 82 of the Principal Act is amended as
follows:
(a) by inserting the following paragraph after
paragraph (f) in subsection (2):
(faa) the other person is, if a natural
person, an adult; and
(b) by omitting subsection (4) and
substituting the following subsections:
26
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 22
(4) The Minister may defer a
decision on an application under
subsection (1) pending the
determination or discontinuation
of any proceedings against the
applicant, the proposed transferee
or an associate of the proposed
transferee for an offence against
(a) this Act; or
(b) any other Act that the
Minister considers
relevant to the making of
the decision; or
(c) a corresponding law.
(5) For the purposes of subsection
(4), a person is an associate of the
proposed transferee if the
person
(a) holds or will hold any
relevant financial interest,
or is or will be entitled to
exercise any relevant
power (whether in their
own right or on behalf of
any other person), in a
business of the proposed
transferee and, by virtue
of that interest or power,
is able or will be able to
exercise a significant
27
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 22
influence over or in
respect of the
management or operation
of that business; or
(b) holds or will hold any
relevant position (whether
in their own right or on
behalf of any other
person) in a business of
the proposed transferee;
or
(c) is a relative of the
proposed transferee.
(6) In this section
"relative" means
(a) the spouse, parent,
child or sibling
(whether of the
full or half blood);
or
(b) the person with
whom a person is
in a personal
relationship within
the meaning of the
Relationships Act
2003;
28
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 22
"relevant financial interest",
in relation to a business,
means
(a) any share in the
capital of the
business; or
(b) any entitlement to
receive any
income derived
from the business;
"relevant position", in
relation to a business,
means the position of
director, manager or other
executive position or
secretary, however that
position is designated in
that business;
"relevant power" means any
power, whether
exercisable by voting or
otherwise and whether
exercisable alone or in
association with others
(a) to participate in a
directorial,
managerial or
executive
decision; or
29
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 23
(b) to elect or appoint
any person to any
relevant position.
23. Section 83 amended (Variation of licence)
Section 83 of the Principal Act is amended as
follows:
(a) by inserting the following paragraph after
paragraph (d) in subsection (1A):
(da) varying the licence will not, if it
includes matters provided for
under a deed of agreement, be
inconsistent with that deed of
agreement; and
(b) by omitting subsection (1C) and
substituting the following subsections:
(1C) The Minister may defer a
decision on an application under
subsection (1) pending the
determination or discontinuation
of any proceedings against the
applicant for an offence against
(a) this Act; or
(b) any other Act that the
Minister thinks is relevant
to the making of that
decision; or
30
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 23
(c) a corresponding law.
(1D) In exercising power under
subsection (1)(b), the Minister is
to ensure that
(a) a marine farming licence
is not varied in a way that
is inconsistent with a
marine farming
development plan; and
(b) a licence that includes
matters provided for
under a deed of agreement
is not varied in a way that
is inconsistent with that
deed of agreement.
(c) by omitting paragraph (b) from
subsection (2);
(d) by omitting from subsection (2)(c)
"containing new conditions";
(e) by omitting from subsection (4)
"specified in the notice served under
subsection (2)(b)" and substituting "on
which the substitute licence is issued";
(f) by inserting the following subsection
after subsection (4):
(5) In this section
31
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 24
"vary a licence" includes vary
the conditions of the
licence by doing one or
more of the following:
(a) omitting a subsisting
condition;
(b) amending a subsisting
condition;
(c) adding a new condition.
24. Section 86 repealed
Section 86 of the Principal Act is repealed.
25. Section 86A amended (Compliance with conditions)
Section 86A of the Principal Act is amended by
omitting "or fail to comply with".
26. Section 87 amended (Prohibition on use of licence
by other persons)
Section 87 of the Principal Act is amended as
follows:
(a) by inserting the following subparagraph
after subparagraph (iv) in subsection
(2)(b):
32
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 27
(v) is, if a natural person, an adult;
and
(b) by omitting from subsection (3) "for a
person to prove" and substituting "if the
defendant establishes".
27. Section 89 amended (Supervision of activities)
Section 89(4) of the Principal Act is amended by
inserting "as if the supervisor were the holder of
the licence" after "Act".
28. Sections 90 and 92 substituted
Sections 90 and 92 of the Principal Act are
repealed and the following sections are
substituted:
90. Cancellation or suspension of licence
(1) The Secretary may apply to a magistrate
for an order to cancel a licence, or to
suspend it for a period of 5 years, if
(a) the holder, or a supervisor or
approved user, of the licence is
convicted of an offence against
this Act, another Act or a
corresponding law, being an
offence of a kind that is
33
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 28
(i) relevant to the holding,
supervision or use of the
licence; and
(ii) of such character as to
merit the cancellation or
suspension of the licence;
or
(b) the holder, or a supervisor or
approved user, of the licence is
convicted of an offence, against a
corresponding law or a New
Zealand law, that is the
equivalent of an offence under
this Act; or
(c) the holder, or a supervisor or
approved user, of the licence
contravenes a condition of the
licence; or
(d) the holder, or a supervisor or
approved user, of the licence
contravenes a provision of this
Act relating to the keeping or
supply of any records, accounts
or other information; or
(e) a fee or charge or other money
payable in respect of the licence
is not paid by the due date.
(2) Only the following persons may be a
party to the proceedings on the
application:
34
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 28
(a) the Secretary;
(b) the holder of the licence;
(c) a supervisor of the licence;
(d) an approved user of the licence.
(3) Subject to subsections (4) and (5), the
magistrate may grant or dismiss the
application.
(4) The magistrate may grant the application
and order the cancellation or suspension
of the licence if
(a) the Secretary has given the
magistrate, either orally or by
affidavit, any information the
magistrate requires concerning
the grounds on which the order is
sought; and
(b) the prescribed requirements, if
any, relating to the making or
hearing of the application have
been met; and
(c) the magistrate is satisfied that
there are reasonable grounds for
making the order.
(5) The authority conferred by a licence is of
no effect while it is suspended.
(6) In this section
35
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 29
"approved user", of a licence, means
a person who is allowed to use
the licence pursuant to an
approval under section 87.
92. Surrender of licence
(1) The holder of a licence may, by notice in
writing to the Secretary, surrender it at
any time.
(2) The surrender takes effect
(a) on the date specified in the
notice; or
(b) if no date is specified in the
notice, on the day the Secretary
receives the notice.
(3) The licence is cancelled as soon as the
surrender takes effect.
29. Sections 98A and 98B repealed
Sections 98A and 98B of the Principal Act are
repealed.
30. Section 98C amended (Allocation of rock lobster
quota units)
Section 98C of the Principal Act is amended by
omitting subsections (3) and (4).
36
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 31
31. Sections 98D, 98E, 98F, 98G, 98H, 98I, 98J, 98K
and 98L repealed
Sections 98D, 98E, 98F, 98G, 98H, 98I, 98J,
98K and 98L of the Principal Act are repealed.
32. Section 104 substituted
Section 104 of the Principal Act is repealed and
the following section is substituted:
104. Rules
(1) The Minister may make rules for
(a) marine resources protected area
management plans; and
(b) habitat protection plans.
(2) Without limiting the generality of
subsection (1), rules may be made in
relation to the following matters:
(a) the prohibition of all or any
fishing;
(b) the restriction of any fishing to
any season, class of person, time,
area, fishing method, apparatus,
species, size, quantity, class of
fish or for any purpose;
(c) the possession of any species,
size, class or quantity of fish;
37
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 32
(d) the use and possession of any
apparatus or other matter,
equipment, contrivance or vessel;
(e) the granting of an approval under
section 132;
(f) reporting, notification, marking,
identification, landing or
monitoring requirements in
respect of any activity likely to
have a detrimental effect on the
environment;
(g) any other matter the Minister
considers necessary or convenient
to achieve the objectives of the
marine resources protected area
management plan or the habitat
protection plan.
(3) Rules may
(a) provide that a contravention of
any of the rules is an offence; and
(b) in respect of any offence, provide
for the imposition of
(i) a penalty of either or both
of the following:
(A) imprisonment for
a term not
exceeding 2 years;
38
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 32
(B) a fine not
exceeding 5 000
penalty units and,
in the case of a
continuing
offence, a further
fine not exceeding
10 penalty units
for each day
during which the
offence continues;
or
(ii) a penalty specified in the
regulations.
(4) Rules may be made so as to apply
differently according to any matter,
condition, limitation, restriction,
exception or circumstance specified in
the rules.
(5) Rules may adopt or incorporate the
whole or any part of any document,
standard, rule, code, specification or
method, with or without modification,
issued, prescribed or published by any
person or body before or after the rules
take effect.
(6) Rules may authorise any matter to be
from time to time determined, applied or
regulated by
(a) the Minister; or
39
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 33
(b) the Secretary or another fisheries
officer.
(7) Rules that are made wholly or partly in
substitution for other rules may contain
provisions of a savings and transitional
nature.
33. Section 113 amended (Compliance with marine
management plan)
Section 113 of the Principal Act is amended by
omitting "or fail to comply with".
34. Section 126 amended (Importation of live fish)
Section 126(3) of the Principal Act is amended
by omitting "for a person to prove that the
person" and substituting "if the defendant
establishes that he or she".
35. Section 129 amended (Possession of noxious fish)
Section 129(2) of the Principal Act is amended
by omitting "for a person to prove" and
substituting "if the defendant establishes".
40
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 36
36. Section 133 amended (Conditions of approval)
Section 133(3) of the Principal Act is amended
by omitting "fail to comply with" and
substituting "contravene".
37. Section 134 amended (Revocation of approval)
Section 134 of the Principal Act is amended by
omitting "fails to comply with" and substituting
"contravenes".
38. Section 136 amended (Notice to restore fish habitat)
Section 136 of the Principal Act is amended as
follows:
(a) by omitting from subsection (3) "or fail
to comply with";
(b) by omitting from subsection (4) "for a
person to prove" and substituting "if the
defendant establishes".
39. Section 137 amended (Minister may take action)
Section 137 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1) "or fails
to comply with";
41
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 40
(b) by omitting from subsection (3)(a) "or
failed to comply with".
40. Section 139 amended (Protection of marine plant)
Section 139(2) of the Principal Act is amended
by omitting "for a person to prove" and
substituting "if the defendant establishes".
41. Section 147 substituted
Section 147 of the Principal Act is repealed and
the following section is substituted:
147. Scientific observers
(1) The Secretary, by instrument in writing,
may authorise persons to be scientific
observers for the purposes of the
scientific observer scheme.
(2) Persons holding authorisations under
subsection (1) are not subject to the State
Service Act 2000 but a State Service
officer or State Service employee may
hold such an authorisation in conjunction
with his or her State Service
employment.
(3) However, the Secretary must not
authorise any of the following to be
scientific observers:
42
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 42
(a) a fisheries officer;
(b) an assistant fisheries officer;
(c) a person who has any of the
powers of a fisheries officer.
42. Section 161 amended (Arrangements with
Commonwealth)
Section 161 of the Principal Act is amended by
inserting after subsection (3) the following
subsections:
(4) The power of the State to enter into an
arrangement with the Commonwealth
under subsection (1) includes the power
to vary or terminate the arrangement.
(5) If an arrangement entered into under
subsection (1) is varied, a reference to
the arrangement in any legislative or
other instrument is, unless the context
expressly or impliedly indicates
otherwise, a reference to the arrangement
as so varied.
43. Section 197 amended (Application and issue of
warrant)
Section 197(2)(a) of the Principal Act is
amended by omitting "believing" and
substituting "suspecting".
43
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 44
44. Section 200 amended (Seizure of fish, vessels and
other things)
Section 200(f) of the Principal Act is amended
by omitting "is evidence" and substituting "may
be evidence".
45. Section 204 amended (Contravention of
requirement, direction or signal)
Section 204 of the Principal Act is amended by
omitting "fail to comply with" and substituting
"contravene".
46. Section 209 amended (Defence for accidental taking
of fish)
Section 209 of the Principal Act is amended as
follows:
(a) by omitting "for a person to satisfy the
court" and substituting "if the defendant
establishes";
(b) by omitting "person" second occurring
and substituting "defendant".
47. Section 210 amended (Liability of master of vessel)
Section 210(2) of the Principal Act is amended
as follows:
44
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 48
(a) by omitting "for the master of the vessel
to prove" and substituting "if the
defendant establishes";
(b) by omitting from paragraph (c) "action"
and substituting "steps".
48. Section 211 amended (Liability of employer)
Section 211 of the Principal Act is amended by
omitting subsection (2) and substituting the
following subsection:
(2) It is a defence in proceedings for an
offence under subsection (1) if the
defendant establishes that the defendant
(a) did not know the offence had
been committed; and
(b) could not reasonably have
prevented the commission of the
offence; and
(c) had, before the offence allegedly
occurred, taken reasonable steps
to have the employee comply
with this Act; and
(d) took reasonable steps to minimise
the impact of the offence on fish
and the marine environment.
45
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 49
49. Section 212 substituted
Section 212 of the Principal Act is repealed and
the following section is substituted:
212. Liability of person concerned in
management of body corporate
(1) If a body corporate commits an offence
against this Act, each person concerned
in the management of the body corporate
is taken to have also committed the
offence and may be convicted of the
offence unless the person establishes
that
(a) the act or omission constituting
the offence took place without the
person's knowledge or consent;
or
(b) the person used all due diligence
to prevent that act or omission by
the body corporate.
(2) A person referred to subsection (1) may
be convicted of an offence against this
Act whether or not the body corporate is
charged with or convicted of the offence.
46
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 50
50. Section 213 amended (Liability of holder of
authorisation regarding offence by agent)
Section 213 of the Principal Act is amended by
omitting subsection (2) and substituting the
following subsection:
(2) It is a defence in proceedings for an
offence under subsection (1) if the
defendant establishes that he or she
(a) did not know the offence had
been committed; and
(b) could not reasonably have
prevented the commission of the
offence; and
(c) had, before the offence allegedly
occurred, taken reasonable steps
to have the agent comply with
this Act; and
(d) took reasonable steps to minimise
the impact of the offence on fish
and the marine environment.
51. Section 213A inserted
After section 213 of the Principal Act, the
following section is inserted in Division 2:
47
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 51
213A. Liability of holder of licence regarding
offence by supervisor
(1) If the supervisor of an activity carried out
under the authority of a licence commits
an offence under section 89(4) in respect
of that activity, the holder of the
licence
(a) is taken to have allegedly
committed that offence; and
(b) may be proceeded against for that
offence whether or not the
supervisor is proceeded against
for that offence.
(2) It is a defence in proceedings for an
offence under subsection (1) if the
defendant establishes that he or she
(a) did not know the offence had
been committed; and
(b) could not reasonably have
prevented the commission of the
offence; and
(c) had, before the offence allegedly
occurred, taken reasonable steps
to have the supervisor comply
with this Act; and
(d) took reasonable steps to minimise
the impact of the offence on fish
and the marine environment.
48
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 52
52. Section 214 substituted
Section 214 of the Principal Act is repealed and
the following section is substituted:
214. Liability of supervisors
(1) If a person allegedly commits an offence
under this Act in relation to any activity
supervised under section 89, the
supervisor
(a) is taken to have allegedly
committed that offence; and
(b) may be proceeded against for that
offence whether or not the person
is proceeded against for that
offence.
(2) It is a defence in proceedings for an
offence under subsection (1) if the
defendant establishes that he or she
(a) did not know the offence had
been committed; and
(b) could not reasonably have
prevented the commission of the
offence; and
(c) had, before the offence allegedly
occurred, taken reasonable steps
to have the person comply with
this Act; and
49
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 53
(d) took reasonable steps to minimise
the impact of the offence on fish
and the marine environment.
53. Section 221 substituted
Section 221 of the Principal Act is repealed and
the following section is substituted:
221. Certificates relating to licensing and
statistical matters
(1) In any proceedings for an offence under
this Act, the production of a certificate
purporting to be signed by the Secretary
stating any of the following facts is
evidence of those facts:
(a) that on any date or during any
period a person was or was not
authorised to do anything under
an authorisation or was, or was
not, exempted from this Act or a
specified provision of this Act;
(b) that on any date or during any
period any place or thing was or
was not the subject of an
authorisation or exemption;
(c) that on any date or during any
period an authorisation or
exemption was cancelled,
50
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 53
suspended or for any other reason
of no effect;
(d) that on any date or during any
period an authorisation or
exemption was subject to any
specified condition or conditions;
(e) that the holder of an authorisation
had taken, received, despatched
or sold a quantity, form or type of
fish as recorded from records,
dockets and returns required to be
provided under the Act,
regulations or rules;
(f) that on any date or during any
period the holder of an
authorisation had made a report
required to be provided under the
Act, regulations or rules and that
the information recorded is the
information that was reported;
(g) that on any date or during any
period the holder of an
authorisation had not made a
report required to be provided by
the Act, regulations or rules;
(h) that a holder of an authorisation
had submitted returns indicating
particular levels of production or
catches of fish over particular
51
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 54
periods of time or similar
statistical information;
(i) that on any date or during any
period a person was or was not
(i) a supervisor for a
particular licence; or
(ii) a supervisor for any
licence;
(j) that on any date or during any
period a natural person was or
was not, for the purposes of a
licence, a nominated person
under section 77.
(2) In any proceedings for an offence under
this Act, the production of a document
purporting to have been prepared in the
Department, for or on behalf of the
Minister, is evidence of the matters
contained in the document.
54. Section 223 amended (Accuracy of measuring
equipment)
Section 223 of the Principal Act is amended by
inserting "compiling the information or" after
"officer in".
52
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 55
55. Section 225 amended (Forfeiture on conviction)
Section 225(1) of the Principal Act is amended
as follows:
(a) by omitting from paragraph (b) ", or
intended to be used, in" and substituting
"or intended to be used in, or in
connection with,";
(b) by inserting in paragraph (c) ", or in
connection with," after "in".
56. Section 226 amended (Forfeiture on acceptance of
infringement notice)
Section 226(1) of the Principal Act is amended
as follows:
(a) by omitting from paragraph (b) ", or
intended to be used, in" and substituting
"or intended to be used in, or in
connection with,";
(b) by inserting in paragraph (c) ", or in
connection with," after "in".
57. Section 231 amended (Release of seized property)
Section 231(4) of the Principal Act is amended
by omitting "fail to comply with" and
substituting "contravene".
53
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 58
58. Section 235 amended (Form of infringement notice)
Section 235(1)(b) of the Principal Act is
amended as follows:
(a) by inserting in subparagraph (ii) ", if
applicable," after "penalty and";
(b) by inserting in subparagraph (iv) "or
other place" after "sessions".
59. Section 236 amended (Petty sessions courts)
Section 236 of the Principal Act is amended by
omitting "to be a court" and substituting "or
other place to be a court or place".
60. Section 242 substituted
Section 242 of the Principal Act is repealed and
the following section is substituted:
242. Allocation of demerit points on conviction
(1) If a court convicts a person of a fisheries
offence, the prescribed number of
demerit points are allocated to each of
the following:
(a) the person;
(b) the licence under which the
person was operating when the
offence was committed;
54
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 60
(c) the fishing certificate on which
the licence is specified.
(2) For the purposes of subsection (1), the
prescribed number of demerit points is
the aggregate of the following:
(a) one demerit point for each
penalty unit that the court
imposes on the convicted person
by way of a fine;
(b) 50 demerit points for each month
of suspended imprisonment, of
each term of imprisonment, that
the court imposes on the
convicted person;
(c) 100 demerit points for each
month of actual imprisonment, of
each term of imprisonment, that
the court imposes on the
convicted person.
(3) However, for the purposes of
subsection (2)
(a) terms of suspended imprisonment
that are ordered to be served
concurrently with each other are
taken to be a single term of
suspended imprisonment; and
(b) terms of actual imprisonment that
are ordered to be served
concurrently with each other are
55
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 60
taken to be a single term of actual
imprisonment.
(4) In this section
"actual imprisonment", in relation to
a term of imprisonment, means
such part of the term as is not
suspended at the time of
sentencing;
"fine" includes a fine by way of
special penalty;
"fisheries offence" means
(a) an offence against this
Act; or
(b) an offence against any
rules or regulations made
under this Act; or
(c) an indictable offence,
relating to fish or fish
processing, or the keeping
of records relating to fish
or fish processing,
punishable under the
Criminal Code;
"month" includes part of a month;
"penalty unit" means a penalty unit
within the meaning of the Penalty
56
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 61
Units and Other Penalties Act
1987;
"suspended imprisonment", in
relation to a term of
imprisonment, means such part of
the term as is suspended at the
time of sentencing.
61. Section 244 amended (Allocation of demerit points)
Section 244 of the Principal Act is amended by
omitting subsection (1).
62. Section 245 substituted
Section 245 of the Principal Act is repealed and
the following section is substituted:
245. Period for which demerit points remain in
force
A demerit point allocated under this
Division remains in force for a period of
5 years from the date of the conviction
that causes it to be allocated.
63. Section 246 amended (Permanent disqualification
from obtaining licence)
Section 246 of the Principal Act is amended as
follows:
57
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 63
(a) by inserting in subsection (1)
"permanently" after "are";
(b) by omitting from subsection (1)(a)
"during a period of 5 years referred to in
section 245" and substituting
"consequent on one or more serious
convictions";
(c) by omitting from subsection (1)(b)
"during that period" and substituting
"consequent on one or more serious
convictions";
(d) by omitting from subsection (1)(c)(i)
"during that period" and substituting
"consequent on one or more serious
convictions";
(e) by omitting from subsection (1)(c)(ii)
"during that period" and substituting
"consequent on one or more serious
convictions";
(f) by inserting in subsection (3)(a) "under
this section" after "disqualification";
(g) by inserting in subsection (4) ", to a
person other than their associate," after
"transfer";
(h) by inserting in subsection (4) "under this
section" after "disqualification";
(i) by inserting the following subsection
after subsection (4):
58
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 64
(4A) For the purposes of section 82, a
person who is obligated to
transfer a licence by
subsection (4) is taken to remain
the holder of that licence until the
transfer is effected.
(j) by inserting the following subsections
after subsection (5):
(6) For the avoidance of doubt, the
operation of this section prevails
over the operation of
section 246A.
(7) In this section
"associate", of the transferor
of a licence, has the same
meaning as in section 82;
"serious conviction" means a
conviction for an
indictable offence tried
before the Supreme Court.
64. Section 246A inserted
After section 246 of the Principal Act, the
following section is inserted in Division 6:
59
Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 64
246A. Temporary disqualification from obtaining
licence
(1) The following are disqualified, for a
period of 5 years, from obtaining or
holding a licence:
(a) a person to whom 200 or more
demerit points have been
allocated in any 5-year period;
(b) a person who is or has been a
partner in a partnership or a major
shareholder in a body corporate
to which 200 or more demerit
points have been allocated in any
5-year period;
(c) a partnership or body corporate
which has or had a partner or
major shareholder
(i) to whom 200 or more
demerit points have been
allocated in any 5-year
period; or
(ii) who has been a partner of
another partnership or
major shareholder in
another body corporate to
which 200 or more
demerit points have been
allocated in any 5-year
period.
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Living Marine Resources Management (Miscellaneous
Amendments) Act 2006
Act No. of
s. 64
(2) A major shareholder is a person who
holds more than 10% of the issued shares
in a body corporate.
(3) The Secretary, by notice in writing, must
notify a person of
(a) any disqualification under this
section; and
(b) the date on which the
disqualification takes effect.
(4) A person is to transfer, to a person other
than their associate, a licence to which a
disqualification under this section
relates
(a) within 6 months after receipt of a
notice under subsection (3); and
(b) in accordance with Division 5 of
Part 4.
(5) For the purposes of section 82, a person
who is obligated to transfer a licence by
subsection (4) is taken to remain the
holder of that licence until the transfer is
effected.
(6) If a person fails to transfer a licence
pursuant to subsection (4), the Minister
must suspend the licence until the
expiration of the person's 5-year period
of disqualification.
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Amendments) Act 2006
Act No. of
s. 65
(7) In this section
"associate", of the transferor of a
licence, has the same meaning as
in section 82.
65. Section 247 amended (Accumulation of demerit
points suspends licence, &c.)
Section 247 of the Principal Act is amended as
follows:
(a) by omitting subsections (1) and (2) and
substituting the following subsections:
(1) A licence is suspended if, under
this Division, during any 5-year
period, 200 or more demerit
points are allocated to
(a) the licence; or
(b) a fishing certificate on
which the licence is
specified.
(2) The suspension is for a period of
5 years.
(b) by omitting from subsection (3) "ceases
to be in force" and substituting "is
suspended";
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(c) by omitting from subsection (4) "ceases
to be in force" and substituting "is
suspended".
66. Section 253 amended (Issue of control order)
Section 253(2) of the Principal Act is amended
by omitting "fail to comply with" and
substituting "contravene".
67. Section 257 amended (Interfering with apparatus)
Section 257(2) of the Principal Act is amended
by omitting "for a person to prove" and
substituting "if the defendant establishes".
68. Section 258 amended (Use of foreign boat)
Section 258(2) of the Principal Act is amended
as follows:
(a) by omitting "for a person to prove" and
substituting "if the defendant
establishes";
(b) by omitting "person" second occurring
and substituting "defendant".
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69. Section 259 amended (Foreign boat equipped with
apparatus)
Section 259(2) of the Principal Act is amended
by omitting "for a person to prove" and
substituting "if the defendant establishes".
70. Section 262 amended (Possession, purchase or sale
of illegally taken fish)
Section 262(2) of the Principal Act is amended
by omitting "for a person to prove" and
substituting "if the defendant establishes".
71. Part 9, Division 9 substituted
Division 9 of Part 9 of the Principal Act is
repealed and the following Division is
substituted:
Division 9 Indictable offences
263A. Prosecution of offences
(1) An offence against this Division is an
indictable offence.
(2) However, a court of summary
jurisdiction may hear and determine
proceedings for an offence against this
Division if the court is satisfied that it is
proper to do so and the defendant and the
prosecutor consent.
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(3) Where, in accordance with
subsection (2), a court of summary
jurisdiction convicts a person of an
offence against this Division, the penalty
that the court may impose is a fine not
exceeding 5 000 penalty units or
imprisonment for a term not exceeding 2
years, or both.
264. Unlawful possession of fish
A person must not have possession of
fish without lawful excuse.
264A. Trafficking in fish
(1) A person must not traffic in fish without
lawful excuse.
(2) For the purposes of subsection (1), a
person is taken to traffic in fish without
lawful excuse if
(a) the fish have been taken
unlawfully or possessed
unlawfully; and
(b) on one or more occasions, the
person
(i) possesses the fish; or
(ii) conceals the fish; or
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(iii) processes the fish; or
(iv) sells or otherwise
disposes of the fish; or
(v) receives or delivers the
fish from or to another
person; or
(vi) transports the fish from
one place to another; or
(vii) otherwise deals with the
fish; or
(viii) carries out any
combination of the
activities referred to in
this paragraph.
(3) For the purposes of subsection (2)
(a) it does not matter whether the fish
referred to in that subsection are
all of one species or a mixture of
different species; and
(b) a person is taken to have carried
out an activity if the person
(i) carries out, or participates
in the carrying out of, the
activity; or
(ii) directs, controls or
supervises the carrying
out of the activity; or
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(iii) provides finance, facilities
or other resources to
enable the activity to be
carried out or to facilitate
it; or
(iv) is knowingly concerned in
the carrying out of the
activity.
265. False or misleading records
A person must not, in keeping any
records, accounts or other information
under this Act
(a) make a statement knowing it to
be false or misleading; or
(b) omit any matter from a statement
knowing that without that matter
the statement is false or
misleading.
266. Application of certain Act
The Crime (Confiscation of Profits) Act
1993 applies to an indictable offence
under this Division as if fish were
property within the meaning of that Act.
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72. Section 267 amended (Illegally taking or possessing
fish, &c.)
Section 267(1) of the Principal Act is amended
by omitting "or possession" and substituting ",
possession, purchase, sale or trafficking".
73. Section 268 amended (Illegal use of apparatus)
Section 268 of the Principal Act is amended as
follows:
(a) by omitting subsection (1) and
substituting the following subsections:
(1) On a finding of guilt for an
apparatus offence committed
entirely or partially in a special
protected area, a court must
impose a special penalty equal
to
(a) 2 penalty units for each
rock lobster pot used or
possessed in the
commission of the
offence; and
(b) 2 penalty units for each
50 metres of net used or
possessed in the
commission of the
offence.
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(1A) On a finding of guilt for an
apparatus offence committed
entirely in an area that is not a
special protected area, a court
must impose a special penalty
equal to 2 penalty units for
(a) each unauthorised rock
lobster pot used or
possessed in the
commission of the
offence; and
(b) each 50 metres of
unauthorised net used or
possessed in the
commission of the
offence; and
(c) each unauthorised
prescribed apparatus used
or possessed in the
commission of the
offence.
(b) by inserting the following subsection
after subsection (2):
(3) In this section
"apparatus offence" means an
offence under this Act or
rules or regulations made
under this Act relating to
the use or possession of
apparatus;
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"protected area" means
(a) a marine resources
protected area; or
(b) reserved land
under the Nature
Conservation Act
2002; or
(c) a prescribed area
of State waters;
"special protected area", in
relation to an apparatus
offence, means a
protected area in which
(a) fishing of any kind
is unlawful; or
(b) fishing that is
ordinarily carried
out by means of
apparatus of the
kind used or
possessed in
connection with
the offence is
unlawful;
"unauthorised", in relation to
the use or possession of
apparatus, means use or
possession that is not
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sanctioned by an
authorisation.
74. Section 272 amended (Requirements made by
order)
Section 272(3) of the Principal Act is amended
by omitting "fail to comply with" and
substituting "contravene".
75. Section 279 amended (Industry levy)
Section 279 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1A)(a)(ii)
"organisation" and substituting "entity";
(b) by inserting the following subsection
after subsection (9):
(10) In this section
"entity" includes
(a) a government
department or
instrumentality of
a State, a Territory
or the
Commonwealth;
and
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(b) an international
organisation.
76. Section 285 amended (Regulations in general)
Section 285 of the Principal Act is amended as
follows:
(a) by omitting paragraph (b) from
subsection (3) and substituting the
following paragraph:
(b) in respect of such an offence,
provide for the imposition of a
penalty of either or both of the
following:
(i) imprisonment for a term
not exceeding 2 years;
(ii) a fine not exceeding 5 000
penalty units and, in the
case of a continuing
offence, a further fine not
exceeding 10 penalty
units for each day during
which the offence
continues.
(b) by inserting the following subsections
after subsection (3):
(3A) The regulations may specify
penalties that are to be imposed
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for offences against regulations or
rules made under Part 3 or 5.
(3B) A penalty specified in the
regulations pursuant to
subsection (3A) may be either or
both of the following:
(a) imprisonment for a term
not exceeding 2 years;
(b) a fine not exceeding 5 000
penalty units and, in the
case of a continuing
offence, a further fine not
exceeding 10 penalty
units for each day during
which the offence
continues.
77. Section 302 substituted
Section 302 of the Principal Act is repealed and
the following section is substituted:
302. Geocentric Datum of Australia
(1) Where, on or after 1 March 2007, it is
necessary to determine the position on
the earth's surface of a point, line or area
for the purposes of this Act or an allied
enactment, then, unless the Minister
determines otherwise, the position is to
be determined by reference to the GDA.
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(2) For the avoidance of doubt,
subsection (1) has effect even if the
determination is being made in respect of
something that occurred before
1 March 2007.
(3) However, for the purposes of pre-
existing subordinate legislation, the
position is to be determined by reference
to the superseded datum.
(4) Subsection (3) has effect regardless of
whether
(a) the pre-existing subordinate
legislation contains any
amendments effected on or after
1 March 2007; or
(b) the determination is in respect of
any provision inserted in the pre-
existing subordinate legislation
on or after that date.
(5) A Ministerial determination under
subsection (1)
(a) is to be made by instrument in
writing; and
(b) may be of general application or
limited in its application
according to matters, criteria or
restrictions (whether as to time,
area, circumstance or otherwise)
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as are specified in the
determination; and
(c) is invalid if it purports to have
retrospective effect.
(6) The Minister may
(a) by instrument in writing revoke a
determination under
subsection (1); and
(b) cause any such determination or
its revocation to be published in
such ways as the Minister thinks
fit.
(7) In any proceedings for an offence under
this Act or an allied enactment, a
document purporting to be signed by the
Minister and to be a copy of a
determination under subsection (1) is
evidence of the determination.
(8) In this section
"allied enactment" means an
enactment that
(a) is contained in an Act that
regulates any matters
relating to sea fisheries or
marine farming; and
(b) incorporates this section;
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"GDA" means the Geocentric Datum
of Australia (also known as "the
GDA" or "GDA94") as defined in
the Commonwealth Gazette No.
GN 35, 6 September 1995;
"legislative instrument" includes a
public notice that has the effect of
regulating, either directly or
indirectly, any matters relating to
sea fisheries or marine farming;
"pre-existing subordinate
legislation" means a statutory
rule or other legislative
instrument made under this Act
or an allied enactment before
1 March 2007;
"statutory rule" means a statutory
rule within the meaning of the
Rules Publication Act 1953;
"superseded datum" means the
provisions of this section as in
force immediately before
1 March 2007.
78. Section 306 repealed
Section 306 of the Principal Act is repealed.
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79. Section 308 repealed
Section 308 of the Principal Act is repealed.
80. Section 310 repealed
Section 310 of the Principal Act is repealed.
81. Validation
The Fisheries Penalties Regulations 2001 are,
and are to be taken as having always been, valid.
82. Meaning of certain penalties specified in rules, &c.
(1) The word "Fine", when used in the expression
"Fine not exceeding the applicable Grade 3
penalty" in any regulations, rules or management
plans made or approved under the Principal Act
before the commencement day, is taken to
include and to have always included a reference
to a term of imprisonment.
(2) Accordingly, in sentencing a person who has
been found guilty of a fisheries offence
committed before or after the commencement
day, a court may, without limiting its other
sentencing powers or discretions, order that the
person serve a term of imprisonment if that is
prescribed as one of the penalties that may be
imposed on the person in the circumstances.
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(3) However, if the court does order the person to
serve a term of imprisonment, that term is not to
exceed the term prescribed for the circumstances
of the person's offence.
(4) In this section
"commencement day" means the day on
which this Act commences;
"fisheries offence" means an offence against
a regulation, rule or management plan
made or approved under the Principal
Act before the commencement day and
for which the penalty is expressed to be a
"Fine not exceeding the applicable Grade
3 penalty".
78 Government Printer, Tasmania