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This is a Bill, not an Act. For current law, see the Acts databases.
Clause Page
Fisheries (Further Amendment) Act 1996
Act No.
TABLE OF PROVISIONS
Clause Page
1. Purpose 1
2. Commencement 1
3. Change to the forced commencement date 2
4. Changes to definitions 2
5. Change to the definition of "fishery" 9
6. Insertion of section 7A 10
7A. Meaning of "species" 10
7. Substitution of section 11 11
11. Application of this Act 11
8. Clarification concerning the contents of management plans 12
9. Substitution of Part 4 12
PART 4--REGULATION OF FISHERIES 12
Division 1--Offences, Licences, General Permits and
Authorisations 12
36. Offences relating to commercial fishing activities 12
37. Offences relating to commercial abalone equipment 13
38. Access licences 14
39. Restrictions concerning access licences 17
40. Offence to receive, consign etc. any fish 18
41. Fish receivers' licences 19
42. Offences relating to aquaculture and live fish etc. 19
43. Aquaculture licences 20
44. Offences relating to recreational fishing 21
45. Recreational fishery licences 22
46. Group recreational fishery licence 22
47. Recreational fishing that does not require a licence 23
48. Delayed implementation of prohibition on unlicensed
recreational fishing in marine waters 23
49. General permit 24
50. Special provisions concerning general permits for
developing fisheries 26
50A. Licence does not confer automatic rights on water
authority property 26
50B. Fishery licences not transferable unless regulations allow 26
Division 2--Issue, Variation, Conditions etc. of Licences and
Permits 27
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51. Issue of fishery licences 27
52. Conditions of fishery licences and permits 28
53. Offence to fail to comply with licence or permit
conditions 29
54. Changes to licence or permit conditions 30
55. Variations of licences and permits by regulation 31
56. Licence transfers and renewals etc. 31
57. Certain licences may be renewed 34
58. Powers of Secretary in respect of fishery licences 35
59. Registration of financial interests 37
60. Cancellation of transferable licence 38
Division 3--Policy Statements, Orders and Quota Notices
Concerning Fisheries 39
61. Fisheries policy statements 39
62. Order concerning a fishery or a fishery licence 39
63. Compensation arising from the cancellation of access
licences under section 62 40
64. Quota orders 41
65. Individual quota 44
66. Offences in relation to individual quota 45
Division 4--Fishing Closures and Restrictions 48
67. Fishing closures 48
68. Prohibition to prevail 49
68A. Offences in relation to size and catch limits 51
10. Changes concerning protected aquatic biota permits 53
11. Substitution of sections 74 and 75 54
75. Declaration of noxious aquatic species 54
12. Substitution of sections 7680 55
76. Offences concerning prohibited noxious aquatic species 55
13. Changes concerning noxious aquatic species 55
81. Noxious aquatic species permits 55
14. Change concerning the revocation of a noxious aquatic species
permit 57
15. Substitution of section 87 57
87. No penalty if noxious aquatic species specimen is killed
immediately 57
16. Changes to the functions of the Fisheries Co-Management
Council 58
17. Repeal of fishery bodies corporate and code of practice
provisions 58
18. Extension of time for giving seizure receipt 58
19. Changes concerning use of explosives and substances 59
112. Use of explosives, poisons, substances or equipment for
fishing 59
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Clause Page
20. Substitution of section 114 60
114. Prohibition on possession, sale or use of boats and
equipment 60
21. Change concerning unlawful interference with equipment 61
22. Widening of court's ability to order removal of obstructions 61
23. Consequential amendment and repeal of redundant provision 61
24. Changes concerning simplification of proof 61
25. Insertion of section 123A 63
123A. Procedure to be followed before certain certificates are
evidence 63
26. Changes concerning evidence of locality 64
27. Substitution of section 126 64
126. Evidence of consignment 64
28. Substitution of section 128 65
128. Additional penalties for licence holders committing
offences 65
29. Substitution of section 129 66
129. Additional penalty--offence by corporation 66
30. Substitution of section 131 67
131. 10 year limit on previous offences by licence holders 67
31. Changes to the functions of the Commercial Fisheries Licensing
Panel 67
32. Clarification concerning the proceedings of the Licensing
Appeals Tribunal 67
33. Substitution of section 137 68
137. Reviewable decisions 68
34. Removal of the register 69
35. Changes concerning research carried out by the Secretary 69
36. Repeal of section authorising special activities 70
37. Substitution of section 145 70
145. Availability for inspection 70
38. Exception to the secrecy provision 70
39. Change concerning licence and permit applications 70
40. Changes concerning licences and permits 71
41. Changes concerning royalties and levies 71
42. Insertion of section 151A 72
151A. Additional provisions applying to royalties and levies 73
43. Changes concerning fisheries notices 73
44. Changes concerning regulation making powers 75
45. Substitution of section 155 75
155. Saving of existing licences and permits after repeal 75
155A. Conversion of existing licences 76
155B. Beneficial owners of abalone licences may seek new
licence 78
155C. Transitional regulations 81
155D. Right to licence lapses if licence not renewed 81
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Clause Page
46. Substitution of section 157 82
157. Transitional provision--sections 13A, 13AA and 13C of
the Fisheries Act 1968 82
47. Other changes to transitional provisions 82
48. Insertion of section 158A 82
158A. Transitional provision--issue of licences 82
49. Minor amendment 83
50. Minor and consequential amendments 83
51. Insertion of Schedule 3 85
SCHEDULE 3 85
NOTES 91
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531079B.I1-3/12/96 BILL LA INTRODUCTION 3/12/96
s. 2
A BILL
to amend the Fisheries Act 1995 and for other purposes.
Fisheries (Further Amendment) Act
1996
The Parliament of Victoria enacts as follows:
1. Purpose
The purposes of this Act are to generally amend
the Fisheries Act 1995 and in particular to
change--
(a) the licensing system under that Act; and
5
(b) the system of declaring fisheries under that
Act; and
(c) the manner of declaring noxious aquatic
species.
2. Commencement
10
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Fisheries (Further Amendment) Act 1996
Act No.
This Act comes into operation on the day on
which it receives the Royal Assent.
3. Change to the forced commencement date
For sections 2(2) and (3) of the Fisheries Act
1995 substitute--
5
"(2) If a provision of this Act does not come into
operation before 1 January 1999, it comes
into operation on that day.".
4. Changes to definitions
(1) In section 4(1) of the Fisheries Act 1995--
10
(a) the definitions of "adjusting fishery",
"approved code of fishing practice",
"commercial fishing licence"; "declared
fishery", "endorsement", "export fishery",
"input managed fishery", "quota managed
15
fishery", "register", "specially managed
fishery", "taxon" and "transferable fishery
licence" are repealed;
(b) for the definition of "access licence"
substitute--
20
' "abalone" means blacklip and greenlip
abalone and includes all other species,
forms, races and hybrids of abalone;
"access licence" means a licence issued
under section 38;';
25
(c) for the definitions of "appointed day" and
"aquaculture licence" substitute--
' "appointed day" means the appointed day
or the relevant appointed day specified
under section 155(3);
30
"aquaculture licence" means a licence
issued under section 43;';
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(d) for the definition of "closed season"
substitute--
' "catch limit" means any limit imposed
under this Act on the quantity or type
of fish or fishing bait that may be taken,
5
possessed or controlled in any specified
circumstances, regardless of--
(a) whether the limit is expressed in
terms of numbers, volume,
weight, size or value;
10
(b) how the fish are specified;
(c) whether the circumstances refer to
how, when, where or by whom the
taking, possessing or controlling
occurs;
15
(d) whether the limit applies to the
whole, or only a part, of
Victoria--
and includes trip, possession and bag
limits, but does not include any limit
20
relating to total allowable catches set
under a quota order or to individual
quotas or individual quota units;
"closed season" in relation to a species of
fish means any time or period during
25
which the taking of fish of that species
is prohibited under this Act;';
(e) for the definition of "commercial abalone
equipment" substitute--
' "commercial abalone equipment" means
30
any device or mechanical thing that is
designed for use, or that is capable of
being used, for or in connection with
the taking of abalone, and includes any
3
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s. 4
Act No.
underwater breathing apparatus, knife,
probe, lever, iron or bar;';
(f) for the definition of "commercial fishing
equipment" substitute--
' "commercial fishing equipment"
5
means--
(a) any fish trap, fishing dredge, hoop
net (other than a recreational hoop
net), fishing net (other than a
recreational fishing net), crab pot,
10
rock lobster pot or longline;
(b) any electrical or sonar device that
is designed for use, or that is
capable of being used, for or in
connection with the taking of fish;
15
(c) any other device or mechanical
thing that is designed for use, or
that is capable of being used, for
or in connection with the taking of
fish (including any tipper used in
20
connection with a scallop dredge);
(d) any yabby pot or crab pot;
(e) any drop line or fishing line left
fixed or set in water, whether or
not the line is set from the shore
25
or from a buoy or other object
(including fishing lines, hooks and
snoods designed to be so fixed or
set, but not including handlines,
rods and reels);
30
(f) any rod and line, handline, dip net,
recreational bait trap, landing net,
gaff, spear gun, hand-held spear,
recreational hoop net, hauling net,
mesh net or other amateur fishing
35
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s. 4 Act No.
equipment when being used by or
under the supervision of a fishery
licence or permit holder (or the
agent of such a holder) as part of a
commercial fishing activity;
5
(g) any other equipment that the
regulations state is commercial
fishing equipment--
but does not include commercial abalone
equipment unless, in a particular case, that
10
equipment is also designed for use, or is
capable of being used, for or in connection
with the commercial taking of fish other than
abalone;';
(g) after the definition of "Commonwealth
15
proclaimed waters" insert--
' "condition", in relation to a licence or
permit, includes any restriction that
applies to the licence or permit;';
(h) for the definition of "developing fishery"
20
substitute--
' "designated licence condition" means a
licence or permit condition that the
regulations specify as a designated
licence condition for the purposes of
25
this Act;
"developing fishery" means a fishery that is
not to be managed by the granting of
renewable licences and that the
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s. 4
Act No.
regulations, or an order made under
section 62, define as a developing
fishery;
"fish receiver's licence" means a licence
issued under section 41;';
5
(i) in the definition of "fishery licence"--
(i) paragraph (b) is repealed;
(ii) for paragraphs (d) and (e) substitute--
"(d) a recreational fishery licence; or
(e) a fish receiver's licence; or
10
(f) any other category of licence
created by the regulations under
clause 3.1 of Schedule 3";
(j) after the definition of "fishery licence"
insert--
15
' "fishing bait" means any species of fauna
declared to be fishing bait under section
6;';
(k) in the definition of "individual quota", for
"for a quota managed fishery under section
20
53(2)(e)" substitute "by a quota order";
(l) for the definition of "individual quota unit"
substitute--
' "individual quota unit" means a quantity
of a species of fish (by number,
25
volume, weight or value) declared
under section 64(1)(c) to be the
individual quota unit for that species;";
(m) in the definition of "inland waters"--
(i) in paragraph (a) for "and Curdies
30
Inlets" substitute "Inlet";
(ii) after paragraph (d) insert--
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s. 4 Act No.
"(e) any other waters declared by the
regulations to be inland waters--
";
(n) in the definition of "licence", for paragraph
(b) substitute--
5
"(b) any category of licence created by the
regulations under clause 3.2 of
Schedule 3;";
(o) for the definition of "marine waters"
substitute--
10
' "marine waters" means Victorian waters
other than--
(a) inland waters;
(b) any waters that are private
property;';
15
(p) for the definition of "open season"
substitute--
' "open season" in relation to a species of
fish means any time or period during
which the taking of fish of that species
20
is not prohibited under this Act or
during which the taking of fish of that
species is allowed under this Act;';
(q) in the definition of "permit", for paragraph
(a) substitute--
25
"(a) a general permit under section 49;";
(r) after the definition of "permit" insert--
' "policy statement" means a statement
made under section 61;
"priority species" means--
30
(a) abalone and rock lobster; and
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s. 4
Act No.
(b) any other species of fish that the
regulations state are a priority
species;';
(s) for the definition of "quota notice"
substitute--
5
' "quota notice" means a notice issued
under section 65;
"quota order" means an order issued under
section 64;
"quota period" means any period specified
10
in a quota order as the period over
which a total allowable catch or an
individual quota is to apply;';
(t) for the definition of "recreational fishing
licence" substitute--
15
' "recreational fishery licence" means a
licence issued under section 45 or a
group recreational fishery licence
issued under section 46;';
(u) before the definition of "Secretary" insert--
20
' "rock lobster" means an animal of the
genus Jasus;'.
(2) For sections 4(2), (3) and (4) of the Fisheries Act
1995 substitute--
'(2) A reference to "this Act", "under this Act" or
25
"by this Act" includes a reference to any
regulations, fisheries notice, Order in
Council, notice, declaration, licence, permit
order, policy statement, order under section
62 or other document or instrument made or
30
issued under this Act, unless inconsistent
with the context or subject matter.
(3) For the purposes of this Act, any
measurements fixed with respect to the
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s. 5 Act No.
taking, possession or sale of any species of
fish throughout Victoria or in some part or
parts of Victoria are the minimum
permissible measurements applicable with
respect to the taking, possession or sale of
5
fish of that species, unless the contrary
intention appears.
(4) Any fish that is less than the minimum
measurement fixed for fish of that species is
referred to in this Act as undersized.'.
10
(3) For section 4(7) of the Fisheries Act 1995
substitute--
'(7) A reference to "he or she" or to "him or her"
is to be read as including a reference to "it",
if the context permits.
15
(8) A reference to an individual quota unit
includes a reference to a fraction of an
individual quota unit, unless a contrary
intention appears.
(9) A person who is exempted under this Act
20
from any provision or requirement under this
Act is to be treated as if he or she was
authorised under this Act to do, or not do,
the thing that he or she is exempted from
doing, or not doing.'.
25
5. Change to the definition of "fishery"
(1) For section 7(1) of the Fisheries Act 1995
substitute--
"(1) For the purposes of this Act, a fishery means
a fishery as defined in this Act or in any
30
Order in Council, regulation, fishery
management plan, policy statement, order
9
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s. 6
Act No.
under section 62(1)(e) or intergovernmental
agreement or arrangement or as redefined by
an order under section 62.".
(2) In section 7(2) of the Fisheries Act 1995--
(a) for paragraph (a) substitute--
5
"(a) a species of fish or fishing bait, whether
generally or by reference to a
characteristic of such a species or by
reference to a particular period of the
life of such a species;";
10
(b) for paragraph (f) substitute--
"(f) a class of licences or permits;".
6. Insertion of section 7A
After section 7 of the Fisheries Act 1995 insert--
'7A. Meaning of "species"
15
(1) A reference to a species by name in this Act
includes a reference to all subspecies, forms,
races and hybrids of that species, unless a
contrary intention appears.
(2) If a species is referred to by the name of a
20
taxon in this Act, a reference to that species
includes a reference to all organisms within
that taxon, unless a contrary intention
appears.
(3) A reference to a subspecies by name in this
25
Act includes a reference to all forms, races
and hybrids of that subspecies, unless a
contrary intention appears.
(4) A reference to "species" in this Act in any
general context is to be read as including a
30
reference to all relevant taxa, subspecies and
other groupings of that species.
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(5) For the purposes of this Act, a species may
be defined as being constituted by--
(a) any taxonomic group of organisms;
(b) any species, subspecies, hybrid or
genetic grouping of organisms;
5
(c) any other grouping of organisms (for
example, by physical or physiological
characteristics, size, sex, age,
geographical location, form (for
example whether domesticated or not),
10
colour, race, variety or by any
combination of these factors).'.
7. Substitution of section 11
For section 11 of the Fisheries Act 1995
substitute--
15
"11. Application of this Act
(1) This Act applies to any fish, fishing bait,
protected aquatic biota or noxious aquatic
species in Victoria, regardless of its origin.
(2) However, a person does not commit any
20
offence under this Act by possessing or
controlling any fish, fishing bait or protected
aquatic biota that appears to be possessed or
controlled, or to have been taken, contrary to
this Act if he or she can prove that the fish,
25
fishing bait or protected aquatic biota--
(a) was not taken in Victoria; and
(b) was taken in accordance with the law of
the place where the fish, fishing bait or
protected aquatic biota was taken.
30
(3) Sub-section (2) does not absolve a person
from complying with this Act with respect to
any fish, fishing bait or protected aquatic
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s. 8
Act No.
biota that sub-section (2) permits him or her
to possess.
(4) A person does not commit any offence under
this Act by unintentionally taking or
possessing a fish or fishing bait (other than a
5
fish or fishing bait of a noxious aquatic
species) or protected aquatic biota if--
(a) the fish, fishing bait or protected
aquatic biota is not killed or put into
any container; and
10
(b) all reasonable steps are immediately
taken to return the fish, fishing bait or
protected aquatic biota to its natural
habitat with the least possible injury or
damage.".
15
8. Clarification concerning the contents of management
plans
After section 28(7) of the Fisheries Act 1995
insert--
"(8) Guidelines included in a management plan
20
under sub-section (6)(d) may include criteria
designed to reduce the number of licences or
permits that are held in respect of a fishery.".
9. Substitution of Part 4
For Part 4 of the Fisheries Act 1995 substitute--
25
'PART 4--REGULATION OF FISHERIES
Division 1--Offences, Licences, General
Permits and Authorisations
36. Offences relating to commercial fishing
activities
30
(1) A person must not--
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s. 9 Act No.
(a) take fish for sale; or
(b) take fishing bait for sale; or
(c) use commercial fishing equipment--
unless he or she is authorised to do so under
this Act.
5
Penalty: If the offence involved a priority
species: 200 penalty units or 12
months imprisonment or both.
In any other case: 100 penalty
units or 6 months imprisonment or
10
both.
(2) A person must not possess commercial
fishing equipment unless he or she is
authorised to do so under this Act.
Penalty: 40 penalty units.
15
(3) A person may do any of the things referred
to in sub-section (1) or (2) if he or she--
(a) is acting on behalf of the holder of an
access licence who is authorised to do
that thing; and
20
(b) is authorised by that access licence to
do that thing; and
(c) is not prohibited by this Act from so
acting.
37. Offences relating to commercial abalone
25
equipment
(1) A person must not--
(a) use commercial abalone equipment to
take more than 20 abalone; or
30
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Act No.
(b) possess commercial abalone equipment
and more than 20 abalone--
unless he or she is authorised to do so under
this Act.
Penalty: 200 penalty units or 12 months
5
imprisonment or both.
(2) A person may do any of the things referred
to in sub-section (1) if he or she--
(a) is acting on behalf of the holder of an
access licence who is authorised to do
10
that thing; and
(b) is authorised by that access licence to
do that thing; and
(c) is not prohibited by this Act from so
acting.
15
38. Access licences
(1) The regulations may create classes of access
licences and may specify that the holder of
an access licence of a particular class may do
one or more of the following--
20
(a) take specified fish for sale;
(b) take specified fishing bait for sale;
(c) use specified commercial fishing
equipment or to use commercial fishing
equipment generally;
25
(d) possess specified commercial fishing
equipment or to possess commercial
fishing equipment generally;
(e) do anything else relating to the taking
of fish or fishing bait specified by the
30
regulations;
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(f) use a boat to do anything authorised
under paragraph (a), (b), (c), (d) or (e);
(g) employ one or more people to do one or
more of the things listed in this sub-
section.
5
(2) The Secretary may issue an access licence of
a particular class to a person.
(3) An access licence continues in force for the
period specified in the licence by the
Secretary unless it is sooner cancelled or
10
suspended under this Act.
(4) The Secretary may specify a period of up to
1 year for the purposes of sub-section (3).
(5) An access licence may not be cancelled by
the Secretary except in accordance with
15
section 58 or 148(9).
(6) An access licence is renewable in accordance
with section 57.
(7) The following provisions apply to an access
licence that is transferable if the holder
20
dies--
(a) despite anything to the contrary in this
Act, the benefit of the licence is
deemed to be an asset of the estate of
the deceased;
25
(b) the personal representative of the
deceased is deemed to be the holder of
the licence until it is transferred from
the personal representative to an
eligible person in accordance with this
30
Act;
(c) subject to paragraph (d), the licence
must be transferred to an eligible
person in accordance with section 56
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Act No.
within 1
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year of the grant of probate or letters of
administration or within 2 years of the
date of the death of the deceased,
whichever is the earlier;
(d) the Secretary, on the recommendation
5
of the Commercial Fisheries Licensing
Panel, may grant an application by the
personal representative for an extension
of the period under paragraph (c) for a
further period not exceeding 1 year.
10
(8) For the purposes of sub-section (7)
"personal representative" has the same
meaning as it has in section 5 of the
Administration and Probate Act 1958.
39. Restrictions concerning access licences
15
(1) The holder of an access licence of a class
specified by the regulations for the purposes
of this sub-section must not personally carry
out any of the fishing activities authorised by
the licence unless he or she is expressly
20
permitted to do so by the licence.
Penalty: 200 penalty units or 12 months
imprisonment or both.
(2) The holder of an access licence of a class
specified by the regulations for the purposes
25
of this sub-section must not use the services
of any other person to carry out any of the
fishing activities authorised by the licence
unless--
(a) the other person is, in the opinion of the
30
Secretary, a fit and proper person to
carry out those activities; and
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Act No.
(b) the licence permits the holder to use the
services of that person and states the
name of the person on the licence.
Penalty: 200 penalty units or 12 months
imprisonment or both.
5
(3) The holder of an access licence of a class
specified by the regulations for the purposes
of this sub-section must not use a boat to
carry out any of the fishing activities
authorised by the licence unless the licence
10
permits the use of that boat and states the
registration number of the boat.
Penalty: 200 penalty units or 12 months
imprisonment or both.
40. Offence to receive, consign etc. any fish
15
(1) A person must not--
(a) receive for any purpose any fish of a
priority species;
(b) receive for sale any other fish;
(c) consign for sale any fish of a priority
20
species--
unless he or she is authorised to do so under
this Act.
Penalty: 200 penalty units or 12 months
imprisonment or both.
25
(2) A person may do any of the things referred
to in sub-section (1) if he or she--
(a) is acting on behalf of the holder of a
fish receiver's licence who is authorised
to do that thing; and
30
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(b) is authorised by that fish receiver's
licence to do that thing; and
(c) is not prohibited by this Act from so
acting.
41. Fish receivers' licences
5
(1) The regulations may create classes of fish
receivers' licences and may specify that the
holder of a fish receiver's licence of a
particular class may do one or more of the
following--
10
(a) receive for any specified purpose any
fish of a specified priority species;
(b) receive for sale any other specified fish;
(c) consign for sale any fish of a specified
priority species.
15
(2) The Secretary may issue a fish receiver's
licence of a particular class to a person.
(3) A fish receiver's licence continues in force
for the period specified in the licence by the
Secretary unless it is sooner cancelled or
20
suspended under this Act.
42. Offences relating to aquaculture and live
fish etc.
(1) A person must not--
(a) use, form or create a habitat (whether
25
natural, artificial or partly natural or
artificial) for hatching, receiving,
breeding, displaying or growing fish or
fishing bait for sale or other
commercial purposes;
30
(b) hatch, rear, breed, display or grow fish
or fishing bait for sale or other
commercial purposes; or
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(c) use any commercial aquaculture
equipment--
unless he or she is authorised to do so under
this Act.
Penalty: If the offence involved a priority
5
species: 200 penalty units or 12
months imprisonment or both.
In any other case: 100 penalty
units or 6 months imprisonment or
both.
10
(2) A person may do any of the things referred
to in sub-section (1) if he or she--
(a) is acting on behalf of the holder of an
aquaculture licence who is authorised
to do that thing; and
15
(b) is authorised by that aquaculture
licence to do that thing; and
(c) is not prohibited by this Act from so
acting.
(3) The regulations may exclude specified fish
20
or fishing bait from all or any of the
provisions of sub-section (1).
(4) If specified fish or fishing bait are excluded
from a provision of sub-section (1), a person
may do the thing that would otherwise be
25
prohibited by that provision in respect of that
fish or fishing bait.
43. Aquaculture licences
(1) The regulations may create classes of
aquaculture licences and may specify that the
30
holder of an aquaculture licence of a
particular class may do one or more of the
following--
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(a) use, form or create a habitat (whether
natural, artificial or partly natural or
artificial) for hatching, receiving,
breeding, displaying or growing
specified fish or fishing bait for sale or
5
other commercial purposes;
(b) hatch, rear, breed, display or grow
specified fish or fishing bait for sale or
other commercial purposes; or
(c) use specified commercial aquaculture
10
equipment or use commercial
aquaculture equipment generally.
(2) The Secretary may issue an aquaculture
licence of a particular class to a person.
(3) An aquaculture licence continues in force for
15
the period specified on the licence by the
Secretary unless it is sooner cancelled or
suspended under this Act.
(4) If an aquaculture licence authorises the
holder of the licence to hatch, rear, breed,
20
display or grow specified fish or fishing bait
for sale, the holder of the licence is also
authorised to take, store and consign for sale
that fish or fishing bait.
44. Offences relating to recreational fishing
25
A person must not--
(a) take or attempt to take fish from inland
waters; or
(b) take or attempt to take rock lobster
from marine waters; or
30
(c) subject to section 48, take or attempt to
take fish other than rock lobster from
marine waters--
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unless he or she is authorised to do so by a
recreational fishery licence or is otherwise
authorised under this Act.
Penalty: If the offence involves the use of a
recreational mesh net or a
5
recreational hoop net: 10 penalty
units.
In any other case: 5 penalty units.
45. Recreational fishery licences
(1) The regulations may create classes of
10
recreational fishery licences and may specify
that the holder of a recreational fishery
licence of a particular class may do one or
more of the following for any purpose other
than for the taking of fish for sale--
15
(a) take or attempt to take fish from inland
waters;
(b) take or attempt to take rock lobster
from marine waters;
(c) take or attempt to take fish other than
20
rock lobster from marine waters.
(2) The Secretary, or a person authorised by the
Secretary, may issue a recreational fishery
licence of a particular class to a person.
(3) A recreational fishery licence continues in
25
force for the period specified on the licence
by the Secretary.
46. Group recreational fishery licence
(1) The Secretary may issue a group recreational
fishery licence to a representative of a group.
30
(2) The Secretary may authorise the members of
the group in respect of which the licence is
issued--
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(a) to take or attempt to take fish from
inland waters;
(b) to take or attempt to take rock lobster
from marine waters;
(c) to take or attempt to take fish other than
5
rock lobster from marine waters--
for any purpose other than for the taking of
fish for sale.
(3) The Secretary may issue a group recreational
fishery licence on a one-off basis or on any
10
other basis that he or she thinks appropriate.
(4) The representative of the group may be
identified in the licence by name or by
reference to the representative's office or
position.
15
(5) The Secretary may cancel a group
recreational fishery licence at any time and
without notice.
47. Recreational fishing that does not require a
licence
20
(1) Subject to this Act, a person under the age of
18 years may take fish for any purpose other
than for sale without holding a recreational
fishery licence.
(2) Subject to this Act, until the Minister
25
publishes the notice described in section
48(1), a person may take, or attempt to take,
fish (other than rock lobster) in marine
waters for any purpose other than for the
taking of fish for sale without holding a
30
recreational fishery licence.
48. Delayed implementation of prohibition on
unlicensed recreational fishing in marine
waters
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(1) Section 44(c) has no effect until the Minister
publishes a notice in the Government
Gazette declaring that it is to have effect
from a specified date and that a person must
not take or attempt to take fish from marine
5
waters after that date unless authorised by
this Act.
(2) The Minister must not publish such a notice
unless--
(a) she or he receives and endorses a report
10
from the Fisheries Co-Management
Council that provides a program for--
(i) requiring people taking fish in
marine waters for purposes other
than for sale to hold a recreational
15
fishery licence; and
(ii) using the money obtained from
licence fees as a result of
imposing that requirement; and
she or he has consulted with the
20
Premier and the Treasurer on the
program.
(3) The Secretary must not issue any
recreational fishery licences to do the things
specified in sections 45(1)(c) and 46(2)(c)
25
until section 44(c) takes effect.
49. General permit
(1) The Secretary may issue a general permit to
a person.
(2) The Secretary may authorise the holder of
30
the permit to do one or more of the
following--
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(a) to take fish for research, education, fish
management, aquaculture, compliance
or scientific purposes; or
(b) to take fish from a developing fishery;
or
5
(c) to carry out any research, exploitation,
work or operation for the purpose of
developing any fishery or aquaculture;
or
(d) to investigate any species of fish or any
10
fishery or any device; or
(e) to sell or dispose of any fish obtained
by the person under the permit; or
(f) to use specified commercial abalone
equipment, commercial fishing
15
equipment or commercial aquaculture
equipment.
(3) A general permit continues in force for the
period specified on the permit by the
Secretary, unless it is sooner cancelled under
20
this Act.
(4) The Secretary may specify a period of up to
3 years for the purposes of sub-section (3).
(5) The Secretary must not issue a general
permit to a person unless the Secretary is
25
satisfied that the person is a fit and proper
person to hold the permit.
(6) A general permit is not renewable, but the
Secretary may issue another general permit
to a person whose general permit is about to
30
expire or who has previously held a general
permit.
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(7) A general permit is not transferable.
(8) The Secretary may cancel a general permit at
any time and without notice.
50. Special provisions concerning general
permits for developing fisheries
5
(1) The Secretary must not issue a general
permit in respect of a developing fishery
unless the Minister has made a policy
statement or an order under section 62 in
respect of the fishery.
10
(2) If the status of a fishery as a developing
fishery is revoked, any general permits
issued in respect of that fishery are
automatically cancelled.
50A. Licence does not confer automatic rights on
15
water authority property
(1) A licence or permit under this Division does
not confer any authority or consent to enter
on any land that is, or to take or to attempt to
take fish from any waters that are, owned or
20
vested in a water authority.
(2) In this section "water authority" means--
(a) any Authority with a function under
Part 8 or 11 of the Water Act 1989; or
(b) a company that holds a water licence or
25
a water and sewerage licence under the
Water Industry Act 1994.
50B. Fishery licences not transferable unless
regulations allow
A fishery licence of a particular category or
30
class is not transferable unless the
regulations permit the transfer of licences of
that category or class.
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Division 2--Issue, Variation, Conditions etc. of
Licences and Permits
51. Issue of fishery licences
(1) Subject to this Act, the Secretary may issue a
fishery licence on--
5
(a) the application of a person who
satisfies the eligibility criteria, if any,
for the issue of the licence; and
(b) the payment of any fees, royalties and
levies payable in respect of the issue of
10
the licence.
(2) An application for a fishery licence must be
made in the form required by the Secretary.
(3) In considering whether to issue a fishery
licence to a person, the Secretary must also
15
have regard to any relevant
recommendations of the Commercial
Fisheries Licensing Panel.
(4) The Secretary must refuse to issue a fishery
licence if the Secretary considers that--
20
(a) the applicant does not satisfy the
relevant eligibility criteria, if any; or
(b) the issue of the fishery licence would
be inconsistent with any regulations,
Order in Council, fisheries notice,
25
management plan, policy statement or
order under section 62; or
(c) the applicant is not a fit and proper
person to hold the fishery licence; or
(d) the issue of the fishery licence would
30
be inconsistent with an
intergovernmental agreement or
arrangement; or
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(e) any other ground prescribed for the
purposes of this sub-section applies.
(5) If there is no relevant management plan, the
Secretary may refuse to issue a fishery
licence if the Secretary considers that the
5
issue of the fishery licence would be harmful
to the welfare of a fishery.
(6) If a licence is issued for a period of less than
1 year, the licence fee payable for the licence
is reduced pro rata (to the nearest month) to
10
take account of the reduced period for which
it is to be in force.
(7) Despite sub-section (6), a licence fee equal
to the pro rata amount payable for a month
must be paid for a licence that is issued for
15
less than a month.
(8) Sub-sections (6) and (7) also apply to any
levy that is a fixed amount.
(9) Sub-sections (4), (5), (6), (7) and (8) do not
apply to recreational fishery licences.
20
52. Conditions of fishery licences and permits
In addition to any conditions that are
imposed by this Act, a fishery licence or a
permit is subject to--
(a) any conditions that the Secretary thinks
25
appropriate and that are expressed or
referred to in the licence or permit; and
(b) any conditions that are set out in the
regulations.
30
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53. Offence to fail to comply with licence or
permit conditions
(1) The holder of a fishery licence or a permit
must comply with any condition to which the
licence or permit is subject.
5
Penalty:
(a) if the offence involves a priority
species or the breach of a designated
licence condition: 100 penalty units or
6 months imprisonment or both;
10
(b) if the offence is committed by the
holder of a recreational fishery licence
and paragraph (a) does not apply: 5
penalty units;
(c) in any other case: 50 penalty units.
15
(2) For the purposes of sub-section (1), if a
person who does any thing on behalf of the
holder of a fishery licence does not comply
with any condition to which the licence is
subject in doing that thing, the holder of the
20
licence is deemed to have failed to comply
with that condition.
(3) Sub-section (2) does not apply if the holder
of the licence can prove--
(a) that he or she did everything that was
25
reasonably practicable to ensure that
the person would comply with the
condition; and
(b) that he or she did not in any way aid,
abet, counsel or procure the person to
30
fail to comply with the condition.
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(4) A person who does any thing on behalf of
the holder of a licence must comply with any
condition to which the licence is subject in
doing that thing.
Penalty:
5
(a) if the offence involves a priority
species or the breach of a designated
licence condition: 100 penalty units or
6 months imprisonment or both;
(b) in any other case: 50 penalty units.
10
54. Changes to licence or permit conditions
(1) The Secretary may at any time--
(a) vary a fishery licence or a permit; or
(b) vary or revoke a condition imposed by
her or him or impose a new condition
15
on a fishery licence or a permit.
(2) The Secretary may act under sub-section
(1)--
(a) on her or his own initiative; or
(b) on the written application of the person
20
who holds the licence or permit.
(3) Before taking action under sub-section
(2)(a), the Secretary must give the person
who holds the licence or permit written
notice of the action that the Secretary
25
proposes to take and must allow the person
to make written representations about the
intended action within 14 days.
(4) Sub-section (3) does not apply if the
Secretary imposes, varies or revokes a
30
condition for the purpose of removing any
inconsistency between the licence or permit
and any regulation, Order in Council,
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fisheries notice, management plan, order,
policy statement or intergovernmental
agreement or arrangement.
(5) If the Secretary imposes, varies or revokes a
condition of a licence or permit, the change
5
has no effect until the Secretary notifies the
holder of the licence or permit in writing of
the change.
(6) The holder of a licence or permit must return
the licence or permit to the Secretary within
10
10 days of being given notice that the
Secretary has decided to change the licence
or permit, unless he or she has a reasonable
excuse for not doing so.
Penalty: 5 penalty units.
15
55. Variations of licences and permits by
regulation
If the regulations add, vary or delete a
licence or permit condition with respect to a
class of licence or permit, the addition,
20
variation or deletion immediately applies to
every licence or permit of that class in
existence, unless the regulations state
otherwise.
56. Licence transfers and renewals etc.
25
(1) This section applies to a fishery licence that
is transferable.
(2) The holder of the licence or a registered
financial interest in the licence may, together
with the proposed transferee, apply to the
30
Secretary for the transfer of the licence to the
transferee in accordance with the regulations.
(3) The Secretary must grant an application for
the transfer of the licence if the Secretary is
satisfied that--
35
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(a) the proposed transferee is a fit and
proper person to hold the licence and
satisfies any relevant eligibility criteria;
and
(b) the licence is not subject to any action
5
under sections 57 or 58; and
(c) in the case of a licence to be transferred
by the holder of the licence, the holders
of any registered financial interests in
the licence consent to the transfer of the
10
licence; and
(d) in the case of a licence to be transferred
by the holder of a registered financial
interest--
(i) the holder of the licence was,
15
within 7 days of the Secretary
receiving the application, given
notice by the Secretary of the
application to transfer the licence;
and
20
(ii) any other holders of a registered
financial interest in the licence
consent to the transfer.
(4) The Secretary must not grant an application
for the transfer of the licence if the transfer
25
would be inconsistent with the regulations, a
policy statement, an order under section 62
or a management plan.
(5) In considering whether to transfer the
licence, the Secretary must also have regard
30
to any relevant recommendations of the
Commercial Fisheries Licensing Panel.
(6) The Secretary may grant the application for
the transfer subject to any conditions the
Secretary thinks appropriate and that are not
35
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inconsistent with the regulations, a policy
statement, an order under section 62 or a
management plan.
(7) If the Secretary considers that the holder of
the licence is not complying with any
5
requirement applying to the licence under
this Act, the Secretary may by notice in
writing served on the holder defer the
transfer of the licence until the holder
satisfies the Secretary that the requirement
10
has been complied with or that the holder is
taking or has taken all reasonable steps to
comply with the requirements of the licence.
(8) The Secretary may defer consideration of an
application to transfer a licence if--
15
(a) a charge for an offence has been filed at
a court, but has not been finally dealt
with; and
(b) the charge, if found proven--
(i) may result in the suspension or
20
cancellation of the licence; or
(ii) may result in the forfeiture of one
or more individual quota units in
respect of the licence; or
(iii) would provide grounds for a
25
finding by the Secretary that the
person to whom the licence is to
be transferred is not a fit and
proper person to hold the licence
or does not satisfy any relevant
30
eligibility criteria.
(9) A copy of any notice served on the holder of
a licence in accordance with sub-section (3)
(d)(i) or (7) must within 7 days of being
served on the licence holder be sent to each
35
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holder of a registered financial interest in the
licence.
57. Certain licences may be renewed
(1) The holder of an access licence, a fish
receiver's licence or any prescribed class of
5
renewable licence may apply to the Secretary
for the renewal of the licence in accordance
with the regulations.
(2) In considering whether to renew the licence,
the Secretary must have regard to any
10
relevant recommendations of the
Commercial Fisheries Licensing Panel.
(3) Subject to this section, the Secretary must
renew the licence for a further period if the
licence holder has a record of compliance
15
with this Act.
(4) If the Secretary considers that the holder of
the licence has ceased--
(a) to satisfy any relevant eligibility
criteria; or
20
(b) to be a fit and proper person to hold the
licence; or
(c) to be actively, substantially and
regularly engaged in the activities
authorised by the licence--
25
the Secretary may by notice in writing
served on the holder require the holder,
within 14 days or such later period as is
specified in the notice, to show sufficient
cause why the renewal of the licence should
30
not be refused.
(5) If the holder of the licence fails to show
sufficient cause for renewing the licence, the
Secretary may refuse to renew the licence.
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(6) The Secretary may refuse to renew a fish
receiver's licence if, in the opinion of the
Secretary, the premises or place in respect of
which the licence is issued is not appropriate
for the activities authorised by the licence.
5
(7) If the Secretary refuses to renew a licence in
accordance with this section, the licence is
for the purposes of this Act deemed to have
been cancelled.
(8) If the Secretary considers that the holder of
10
the licence is not complying with any
requirement applying to the licence by or
under this Act, the Secretary may by notice
in writing served on the holder defer the
renewal of the licence until the licence
15
holder satisfies the Secretary that the
requirement has been complied with or that
the holder is taking or has taken all
reasonable steps to comply with the
requirements of the licence.
20
(9) A copy of any notice served on the holder of
a licence in accordance with sub-section (4)
or (8) must, within 7 days of being served,
be sent to each holder of a registered
financial interest in the licence.
25
(10) If the renewal of a licence has been deferred
under sub-section (8), the licence is deemed
as from the date of its expiry to have been
suspended.
(11) The Secretary may defer the renewal of a
30
licence while the licence is suspended by a
court.
58. Powers of Secretary in respect of fishery
licences
(1) This section applies if--
35
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(a) the Secretary considers that the holder
of a fishery licence that is not
transferable--
(i) has ceased to satisfy any relevant
eligibility criteria; or
5
(ii) has ceased to be actively,
substantially and regularly
engaged in the activities
authorised by the licence; or
(b) the holder of a fishery licence has not
10
paid any fee, royalty or levy that is due
in respect of the licence within 14 days
of the date that it was due.
(2) The Secretary may require the holder of the
licence to show sufficient cause why the
15
licence should not be cancelled or
suspended.
(3) The Secretary must make the requirement by
serving a written notice on the holder of the
licence that specifies--
20
(a) the grounds on which the requirement
is being made; and
(b) the time within which the requirement
must be complied with.
(4) A copy of any notice served on the holder of
25
a licence in accordance with sub-section (1)
must, within 7 days of being served, be sent
to each holder of a registered financial
interest in the licence.
30
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(5) If the holder of the licence fails to show
sufficient cause, the Secretary may cancel
the licence or suspend the licence for such
period as the Secretary determines.
59. Registration of financial interests
5
(1) This section applies if a person who is not
the holder of a particular access licence has a
financial interest in that licence.
(2) The person, and the holder of the licence,
may register details of the financial interest
10
with the Secretary in the form approved by
the Secretary.
(3) The Secretary must, within 21 days of
receiving an application to transfer the
licence, notify each holder of a registered
15
financial interest of the application.
(4) Each holder of a registered financial interest
who receives the notice must, within 21 days
of receiving the notice, advise the Secretary
in writing of his or her approval or
20
disapproval of the proposed transfer.
(5) If all the holders of registered financial
interests in the licence notified under sub-
section (3) do not approve the proposed
transfer, the Secretary must not transfer the
25
licence.
(6) If the holder of a registered financial interest
notified under sub-section (3) does not
comply with sub-section (4), the holder is
deemed to have approved of the proposed
30
transfer.
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60. Cancellation of transferable licence
(1) This section applies to a licence that is
transferable and that has been cancelled by a
court.
(2) The Secretary must notify each holder of a
5
registered financial interest in the licence of
the cancellation.
(3) For the purposes of this section, the
cancellation of the licence is stayed and the
licence is deemed to have been suspended
10
until whichever of the following first
occurs--
(a) an appeal against the cancellation of the
licence is granted; or
(b) if there is no appeal against the
15
cancellation of the licence or the appeal
is dismissed--
(i) the holder of the licence or the
registered financial interest
transfers the licence to an eligible
20
person in accordance with this
Act; or
(ii) the expiry of the period of 6
months after the date on which an
appeal should have been lodged or
25
was dismissed (as the case may
be).
(4) If sub-section (3)(b) applies and the holder
of the licence fails to transfer the licence in
accordance with that sub-section, the licence
30
is cancelled as from the expiry of the period
of 6 months specified in that sub-section.
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(5) If sub-section (3)(b) applies but sub-section
(4) does not apply, the cancellation of the
licence by the court is revoked on the
transfer of the licence to the eligible person.
Division 3--Policy Statements, Orders and
5
Quota Notices Concerning Fisheries
61. Fisheries policy statements
(1) The Minister may make a policy statement
on any matter relating to the management of
one or more fisheries or one or more zones
10
of a fishery.
(2) The Minister must publish any policy
statement made under this section in the
Government Gazette.
(3) The Minister may revoke or amend a policy
15
statement at any time by publishing notice of
the revocation or amendment in the
Government Gazette.
(4) The Minister must not make, revoke or
amend a policy statement unless she or he
20
has consulted with the relevant consultative
bodies and has considered any comments
made by those bodies concerning the policy
statement or its revocation or amendment.
62. Order concerning a fishery or a fishery
25
licence
(1) The Minister may make an order--
(a) that specifies minimum eligibility
criteria that must be met before a
person may be issued with a particular
30
category or class of fishery licence or
permit, or to have a particular category
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or class of fishery licence renewed or
transferred;
(b) that redefines a fishery;
(c) that redefines licence entitlements
within a fishery (other than entitlements
5
conferred by the regulations);
(d) that redefines other fisheries to make
their descriptions consistent with any
change made under paragraph (b);
(e) that defines a developing fishery.
10
(2) An order has effect from the date it is
published in the Government Gazette, or
from any later date specified in the order as
the date it is to have effect from.
(3) The Minister may revoke or amend an order
15
at any time by publishing notice of the
revocation or amendment in the Government
Gazette.
(4) The Minister may only make or revoke or
amend an order on the recommendation of
20
the Fisheries Co-Management Council and
after she or he has consulted with the
relevant consultative bodies concerning the
order or revocation or amendment.
(5) If an order is to contain measures or
25
conditions involving expenditure by the
Crown other than expenditure within the
relevant Department's budget allocation, the
Minister may only make the order after
obtaining the approval of the Treasurer.
30
63. Compensation arising from the cancellation
of access licences under section 62
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(1) This section applies if an access licence is
cancelled as a result of an order under
section 62.
(2) The person who held the licence, and any
person who held a registered financial
5
interest in the licence at the time it was
cancelled, are each entitled to compensation
for the financial loss suffered as a natural,
direct and reasonable consequence of the
cancellation of the licence, in proportion to
10
the extent of their respective interests.
(3) An application for compensation must be
made to the Secretary in the form specified
by the Secretary.
(4) The Secretary must determine the amount of
15
compensation payable in accordance with
the regulations.
(5) Compensation is to be paid in the manner
permitted under the regulations.
(6) Parts 10 and 11 and section 37 of the Land
20
Acquisition and Compensation Act 1986,
with any necessary modifications, apply to
the determination of compensation under this
section as if the claim were a claim under
section 37 of that Act.
25
64. Quota orders
(1) The Governor in Council may, on the
recommendation of the Minister, by order
published in the Government Gazette--
(a) set the total allowable catch (by
30
number, volume, weight or value) for a
specified period for a fishery as a whole
or for a specified zone or zones in a
fishery;
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(b) determine a method or formula for
establishing an individual quota unit
within a total allowable catch;
(c) determine the quantity of fish (by
number, volume, weight or value)
5
comprising an individual quota unit and
the number of individual quota units
permitted to be taken by each licence
holder in a specified period or specified
fishery or zone;
10
(d) determine the allocation of individual
quotas to each access licence issued in
respect of the relevant fishery or zone,
and the circumstances, if any, in which
the quotas can be exceeded or wholly
15
or partially transferred or carried over;
(e) set the minimum and maximum
individual quota units that may be
acquired or held by each licence holder
in a specified period or specified
20
fishery or zone;
(f) determine a method or formula for
varying individual quotas or individual
quota units over a period of time.
(2) A notice has effect from the date it is
25
published in the Government Gazette, or
from any later date specified in the notice as
the date it is to have effect from.
(3) The Governor in Council may, on the
recommendation of the Minister, revoke or
30
amend a notice at any time by publishing
notice of the revocation or amendment in the
Government Gazette.
(4) Without intending to limit the generality of
sub-section (3), the Governor in Council
35
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may reduce a total allowable catch, or reduce
the
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size or allocation of individual quotas, before
the end of the period to which the total
allowable catch or quotas apply.
(5) The Minister must not recommend the
making, revocation or amendment of a notice
5
unless she or he has consulted with the
relevant consultative bodies and has
considered any comments made by those
bodies concerning the proposed
recommendation.
10
(6) In referring to a quantity of individual quota
units, an order under this section may refer
to fractions of an individual quota unit.
65. Individual quota
(1) The Secretary must give the holder of an
15
access licence a quota notice setting out
details of the individual quota allocated to
the licence as soon as is practicable after any
individual quota is allocated to the licence.
(2) If a quota order makes any change to an
20
individual quota, the Secretary must give the
holder of the access licence a new quota
notice setting out details of the revised
individual quota as soon as is practicable
after the quota order is published.
25
(3) With the approval of the Secretary, the
holder of an access licence for a fishery or a
specified zone of a fishery may, for a quota
period--
(a) transfer to the holder of any other
30
access licence for the same fishery or
specified zone of the fishery up to the
maximum number of individual quota
units permitted to be transferred by the
relevant quota order;
35
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(b) acquire from the holders of any other
access licences for the same fishery or
specified zone of the fishery additional
individual quota units up to the
maximum additional number of
5
individual quota units permitted to be
acquired by the relevant quota order.
(4) An application to the Secretary for approval
must, where applicable, be accompanied by
the relevant quota notice or notices.
10
(5) The Secretary may grant an application if it
is consistent with every quota order and
management plan that applies to the relevant
fishery or zone.
(6) The Secretary must refuse to grant an
15
application that is inconsistent with any
relevant provision of this Act.
(7) If the Secretary grants an application, he or
she must issue new quota notices for each
access licence involved in the transfer or
20
acquisition.
(8) The Secretary must issue a new quota notice
for an access licence as soon as is practicable
after the access licence is renewed or
transferred.
25
(9) If an individual quota no longer applies to a
licence in a quota period, the quota notice
required by sub-section (7) or (8) must state
that fact.
66. Offences in relation to individual quota
30
(1) During any specified quota period, the
holder of an access licence must not take any
fish in excess of the permitted amount.
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Penalty:
(a) For a first offence, 50 penalty units and
the forfeiture of whichever is the
greater of 1 individual quota unit or the
number of individual quota units
5
equivalent to the quantity of excess fish
taken.
(b) For a second offence, 100 penalty units
and the forfeiture of whichever is the
greater of 3 individual quota units or
10
the number of individual quota units
equivalent to double the quantity of
excess fish taken.
(c) For a third offence, 150 penalty units
and the cancellation of any entitlement
15
in respect of the access licence to be
allocated an individual quota in the
next full quota period after the
conviction.
(d) For a subsequent offence, 200 penalty
20
units or 12 months imprisonment or
both, and the cancellation of the access
licence.
(2) For the purposes of sub-section (1),
"permitted amount" means the amount of
25
fish a person is permitted to take under an
access licence by virtue of the number of
individual quota units that he or she holds
under this Act in respect of the licence.
(3) For the purposes of sub-section (1)(c), a
30
quota period is a full quota period even if it
is shortened in any way by a quota order
made during the quota period.
(4) Individual quota units that are forfeited
under sub-section (1) may be allocated by
35
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the Secretary to one or more holders of
access licences in the same specified zone in
accordance with the regulations.
(5) For the purposes of sub-section (4), the
regulations may require the Secretary to sell
5
forfeited individual quota units and to sell
such units by tender, by auction or in any
other manner.
(6) If the number of individual quota units not
yet taken by the holder in the quota period in
10
which the conviction occurs is less than the
number forfeited under paragraph (a) or (b)
of the penalty under sub-section (1), the
balance of the forfeited number of quota
units is forfeited in the next quota period.
15
(7) For the purposes of sub-section (6), any
differences in the quantity of fish that
comprise an individual quota unit in different
periods are to be disregarded.
(8) For the purposes of paragraphs (a) and (b) of
20
the penalty under sub-section (1), if a
quantity of fish does not equate exactly to a
number of individual quota units, the excess
is deemed to be an individual quota unit.
(9) If a person who is acting on behalf of the
25
holder of an access licence exceeds the
permitted amount for the licence--
(a) he or she is liable to the relevant fines
or imprisonment specified in sub-
section (1); and
30
(b) the relevant forfeiture applies to the
licence.
(10) The Secretary must issue a new quota notice
for an access licence as soon as is practicable
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after any individual quota units in respect of
the licence are forfeited under this section.
(11) If an individual quota no longer applies to a
licence in a quota period, the quota notice
required by sub-section (10) must state that
5
fact.
Division 4--Fishing Closures and Restrictions
67. Fishing closures
(1) A regulation or fisheries notice may--
(a) fix open and closed seasons for fish;
10
and
(b) prohibit the taking, landing, processing,
selling or possessing of fish or fishing
bait or a specified species of fish or
fishing bait; or
15
(c) prohibit the use of specified fishing
methods.
(2) A prohibition under sub-section (1)--
(a) may be absolute or conditional;
(b) may apply in respect of any specified
20
species of fish or fishing bait;
(c) may apply to any waters or to specified
waters or areas;
(d) may apply for such period as is
specified including--
25
(i) specified times of the day;
(ii) specified periods of a week,
month or year;
(iii) specified periods of more than a
year;
30
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(e) may apply in respect of specified
classes of fishery licences;
(f) may apply either generally or in
specified circumstances or to specified
people or classes of people.
5
(3) A person must not contravene a prohibition
under sub-section (1).
Penalty: 100 penalty units or imprisonment
for 6 months or both.
(4) In addition to the penalty under sub-section
10
(3), the regulations or a fisheries notice may
provide that, in respect of a specified species
of fish, a person is liable to a further
penalty--
(a) for a first offence, not exceeding ½
15
penalty unit for each fish of that species
taken, landed, sold or possessed;
(b) for a subsequent offence, not exceeding
1 penalty unit for each fish of that
species taken, landed, sold or
20
possessed.
(5) Despite sub-section (3), a person may sell or
process a fish in a closed season for fish of
that species if he or she can prove that the
fish was not taken in contravention of a
25
prohibition under sub-section (1).
(6) Sub-section (5) does not apply to a person in
relation to a particular prohibition if the
regulation or fisheries notice creating the
prohibition expressly prohibits the sale or
30
processing of fish of that species during the
closed season.
68. Prohibition to prevail
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A prohibition under this Division prevails
over any provision to the contrary in this
Act.
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68A. Offences in relation to size and catch limits
(1) A person must not use commercial fishing
equipment--
(a) to take fish that are less than the
minimum size, or that are more than the
5
maximum size, specified by the
regulations for that species of fish; or
(b) to take more fish than the catch limit
for that species of fish.
Penalty: First offence--50 penalty units or
10
imprisonment for 3 months or
both.
Subsequent offence--100 penalty
units or imprisonment for 6
months or both.
15
(2) A person must not possess fish that are less
than the minimum size, or that are more than
the maximum size, specified by the
regulations for that species of fish if--
(a) the fish were taken by the use of
20
commercial fishing equipment; or
(b) the fish have been consigned for sale or
are possessed for sale.
Penalty: First offence--50 penalty units or
imprisonment for 3 months or
25
both.
Subsequent offence--100 penalty
units or imprisonment for 6
months or both.
30
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(3) A person must not take or have in his or her
possession--
(a) fish that are less than the minimum
size, or that are more than the
maximum size, specified by the
5
regulations for that species of fish; or
(b) more fish than the catch limit for that
species of fish.
Penalty: First offence--10 penalty units.
Subsequent offence--20 penalty
10
units.
(4) Sub-sections (1), (2)(a) and (3)(b) do not
apply to abalone.
(5) A person must not--
(a) use commercial abalone equipment to
15
take abalone that is less than the
minimum size, or that is more than the
maximum size, specified by the
regulations for abalone; or
(b) take or possess more abalone than the
20
catch limit for abalone.
Penalty: First offence--50 penalty units or
imprisonment for 3 months or
both.
Subsequent offence--100 penalty
25
units or imprisonment for 6
months or both.
(6) Sub-sections (3)(b) and (5)(b) do not apply
to a person in the business of processing or
selling fish if he or she can prove that any
30
fish in his or her possession that are in
excess of the catch limit were taken in
accordance with this Act.
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(7) In addition to any other penalty specified by
this section, a person who is guilty of an
offence under this section in relation to a
priority species is liable to a penalty of up to
1 penalty unit for each fish of the priority
5
species that is--
(a) less than the minimum size, or that is
more than the maximum size, specified
by the regulations for that species of
fish; or
10
(b) in excess of the catch limit allowed by
the regulations for that species of fish.
(8) An authorised officer or a member of the
police force may seize--
(a) any undersized fish; and
15
(b) all fish in any basket, bag, box or
receptacle (and the basket, bag, box or
receptacle), if more than 5% of those
fish are undersized.
(9) This section does not apply to a person who
20
is authorised under this Act to do anything
that would otherwise be a contravention of
this section.'.
10. Changes concerning protected aquatic biota permits
(1) For sections 72(3)(b) and (c) of the Fisheries Act
25
1995 substitute--
"(b) may refuse to issue a permit if the applicant
has been convicted of an offence under this
Act, the Fisheries Act 1968, the Wildlife
Act 1975, the Flora and Fauna Guarantee
30
Act 1988 or a law of the Commonwealth or
of another State or of a Territory that
corresponds to any of those Acts.".
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(2) In section 72(4) of the Fisheries Act 1995, for "12
months" substitute "3 years".
11. Substitution of sections 74 and 75
For sections 74 and 75 of the Fisheries Act 1995
substitute--
5
"75. Declaration of noxious aquatic species
(1) The Governor in Council may, by Order in
Council, declare any aquatic species to be
noxious.
(2) A declaration cannot be made under sub-
10
section (1) in respect of--
(a) protected aquatic biota; or
(b) protected wildlife, notable wildlife or
endangered wildlife under the Wildlife
Act 1975; or
15
(c) protected flora or part of a taxon or
community listed under the Flora and
Fauna Guarantee Act 1988.
(3) A declaration under sub-section (1)--
(a) may apply to any species of aquatic
20
flora or fauna (whether alive or dead)
specified in the declaration, other than
mammals, reptiles, amphibians or birds;
(b) may apply to all, or a specified part, of
Victoria;
25
(c) comes into operation on the date the
Order in Council is published in the
Government Gazette or any later date
specified in the declaration as the date
of commencement.
30
(4) A declaration is a subordinate instrument for
the purposes of the Interpretation of
Legislation Act 1984.
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(5) The Governor in Council may at any time,
by Order in Council, amend or revoke any
Order made under sub-section (1).".
12. Substitution of sections 7680
For sections 76, 77, 78, 79 and 80 of the Fisheries
5
Act 1995 substitute--
"76. Offences concerning prohibited noxious
aquatic species
Unless authorised under this Act, a person
must not bring into Victoria or take, hatch,
10
keep, possess, sell, transport, put into any
container or release into protected waters
any aquatic species that is declared to be
noxious under section 75.
Penalty: First offence: 100 penalty units.
15
Second offence: 200 penalty
units.".
13. Changes concerning noxious aquatic species
For section 81 of the Fisheries Act 1995
substitute--
20
"81. Noxious aquatic species permits
(1) The Secretary may issue a noxious aquatic
species permit to a person authorising the
person to do anything that is prohibited by
section 76.
25
(2) In considering whether to issue a permit, the
Secretary must have regard to the welfare of
any relevant fishery or aquatic ecosystem.
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(3) The Secretary--
(a) must not issue a permit if the Secretary
considers that--
(i) the applicant does not satisfy the
relevant eligibility criteria; or
5
(ii) the issue of the permit would be
inconsistent with the relevant
management plan or if there is no
relevant management plan, would
be harmful to the welfare of any
10
relevant fishery or aquatic
ecosystem;
(iii) the permit is sought for a purpose
other than a scientific, research,
fisheries management, aquaculture
15
or other purpose specified by the
regulations;
(b) may refuse to issue a permit if the
applicant has been convicted of an
offence under this Act, the Fisheries
20
Act 1968, the Catchment and Land
Protection Act 1994, the Vermin and
Noxious Weeds Act 1958, the Wildlife
Act 1975 or the Flora and Fauna
Guarantee Act 1988 or a law of the
25
Commonwealth or of another State or
of a Territory that corresponds to any of
those Acts.
(4) If a person kept a noxious aquatic species
immediately before the commencement of
30
this section, the person may continue to keep
it--
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(a) if the person does not apply for a permit
within 90 days after that
commencement, until the end of that
period of 90 days; or
(b) if the person applies for that permit
5
during that period, until the application
is determined.
(5) A permit--
(a) unless revoked, continues in force for a
period not exceeding 3 years as is
10
specified in the permit by the Secretary;
and
(b) applies to the category of noxious
aquatic species specified in the permit;
and
15
(c) is not transferable.
(6) A permit is not renewable, but the Secretary
may issue another permit to a person whose
permit is about to expire or who has
previously held a permit.".
20
14. Change concerning the revocation of a noxious
aquatic species permit
For section 82(1) of the Fisheries Act 1995
substitute--
"(1) The Secretary may revoke a noxious aquatic
25
species permit at any time by serving notice
of the revocation on the holder of the
permit.".
15. Substitution of section 87
For section 87 of the Fisheries Act 1995
30
substitute--
"87. No penalty if noxious aquatic species
specimen is killed immediately
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Act No.
Despite anything to the contrary in this
Division, if a person who takes any thing
that is declared to be a noxious aquatic
species immediately kills it, the person is not
liable to any penalty under this Division.".
5
16. Changes to the functions of the Fisheries Co-
Management Council
In section 91 of the Fisheries Act 1995--
(a) in paragraph (f), for "angling" substitute
"recreational fishery";
10
(b) after paragraph (f) insert--
"(fa) to prepare, publicise and distribute
codes of practice that provide guidance
to the holders of fishery licences or
permits under this Act on best practice
15
concerning any matter relevant to the
holders of fishery licences or permits;
(fb) to publicise and distribute such codes
of practice that have been prepared by a
recognised peak body or a fishery
20
committee;".
17. Repeal of fishery bodies corporate and code of
practice provisions
Sections 35(3), 96, 97, 98, 99 and 100 of the
Fisheries Act 1995 are repealed.
25
18. Extension of time for giving seizure receipt
In section 104(5) of the Fisheries Act 1995, for "7
days" substitute "14 days".
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19. Changes concerning use of explosives and substances
For section 112 of the Fisheries Act 1995
substitute--
'112. Use of explosives, poisons, substances or
equipment for fishing
5
(1) Unless authorised under this Act or under
any other Act, a person must not use, or
attempt to use, any explosive in Victorian
waters.
Penalty: 100 penalty units or imprisonment
10
for 6 months or both.
(2) Unless authorised under this Act or under
any other Act, a person must not use, or
attempt to use, any poison, substance or
equipment in Victorian waters if the use of
15
the poison, substance or equipment can
reasonably be expected to result in--
(a) the taking or killing of any fish, fishing
bait or protected aquatic biota; or
(b) damage to the habitat of any fish,
20
fishing bait or protected aquatic biota.
Penalty: 100 penalty units or imprisonment
for 6 months or both.
(3) If a court finds a person guilty of an offence
against this section, the court may, in
25
addition to any other penalty imposed by it,
order the person to pay compensation for any
damage or loss caused by the offence to any
person.
(4) In this section "poison" has the same
30
meaning as it has in the Drugs, Poisons and
Controlled Substances Act 1981.'.
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20. Substitution of section 114
For section 114 of the Fisheries Act 1995
substitute--
"114. Prohibition on possession, sale or use of
boats and equipment
5
(1) A regulation or fisheries notice may prohibit
the possession, sale or use of any specified
boats or equipment.
(2) A prohibition under sub-section (1)--
(a) may be absolute or conditional;
10
(b) may apply in respect of any specified
species of fish or fishing bait;
(c) may apply to any waters or to specified
waters or areas;
(d) may apply for such period as is
15
specified including--
(i) specified times of the day;
(ii) specified periods of a week,
month or year;
(iii) specified periods of more than a
20
year;
(e) may apply in respect of specified
classes of fishery licences;
(f) may apply either generally or in
specified circumstances or to specified
25
people or classes of people.
(3) A person must not contravene a prohibition
under sub-section (1).
Penalty: 100 penalty units or imprisonment
for 6 months or both.".
30
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21. Change concerning unlawful interference with
equipment
In section 115 of the Fisheries Act 1995, omit
"prescribed" (wherever occurring).
22. Widening of court's ability to order removal of
5
obstructions
In section 119(2) of the Fisheries Act 1995, for
"convicting a person" substitute "finding a person
guilty".
23. Consequential amendment and repeal of redundant
10
provision
In section 120 of the Fisheries Act 1995--
(a) in sub-section (1), for "relevant commercial
fishing licence" substitute "fishery licence
(other than a recreational fishery licence)";
15
(b) sub-section (4) is repealed.
24. Changes concerning simplification of proof
(1) In section 122 of the Fisheries Act 1995--
(a) in sub-sections (1) and (2), for "against this
Act, the regulations or a fisheries notice"
20
substitute "under this Act";
(b) in sub-section (1)(g), for "signed by"
substitute "under the seal of";
(c) in sub-section (3), for "prescribed priority
fish species" substitute "priority species".
25
(2) In section 123 of the Fisheries Act 1995--
(a) in sub-sections (3), (4) and (5), for "class,
kind or taxon" (wherever occurring)
substitute "species";
(b) in sub-section (4), for "aquatic taxon"
30
substitute "aquatic species"; .
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(c) in sub-section (8), for "a statement by"
substitute "a statement in writing purporting
to be under the seal of".
(3) After section 123(8) of the Fisheries Act 1995
insert--
5
"(9) A certificate signed or appearing to be
signed by an authorised officer certifying--
(a) that a particular conversion factor is the
relevant conversion factor in the
relevant circumstances; and
10
(b) as to the effect of applying that
conversion factor to those
circumstances--
is evidence, and in the absence of evidence
to the contrary, is proof of the facts stated in
15
the certificate.
(10) For the purposes of this section, if a
certificate purports to be signed by an
authorised officer and there is no evidence to
the contrary, it is not necessary to prove--
20
(a) that the person who signed the
certificate is an authorised officer; or
(b) that the signature is the signature of the
authorised officer.
(11) No evidence to the contrary for the purposes
25
of sub-section (10) is admissible unless, at
least 7 days before the hearing, the defendant
gave the informant written notice that he or
she intended to challenge the status or
identity of the person who purported to sign
30
the certificate.".
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(4) In section 124 of the Fisheries Act 1995--
(a) for "signed by" substitute "under the seal
of";
(b) in paragraph (d), omit ", restrictions,
limitations or endorsements";
5
(c) in paragraph (f), after "declaration" insert
", policy statement, order under section 62";
(d) omit ", without proof of the signature of the
Secretary,".
25. Insertion of section 123A
10
After section 123 of the Fisheries Act 1995
insert--
"123A. Procedure to be followed before certain
certificates are evidence
(1) This section applies to any certificate
15
referred to in section 123(4) or (9).
(2) Despite section 123, a certificate to which
this section applies is not evidence unless a
copy of the certificate was served on the
defendant with the summons, or at least 28
20
days before the hearing at which it is sought
to tender the certificate as evidence.
(3) The defendant is not entitled to question the
authorised officer in relation to the
certificate at a hearing unless the defendant,
25
at least 7 days before the hearing, gave the
informant and the authorised officer a
written notice requiring the authorised
officer to attend the hearing.
30
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(4) Service of a copy of the certificate for the
purposes of this section may be proved--
(a) in any manner in which service of a
summons may be proved; or
(b) if the certificate was served with the
5
summons and proof of service of the
summons is by affidavit, by stating in
the affidavit that a copy of the
certificate was served with the
summons.".
10
26. Changes concerning evidence of locality
(1) In section 125(1) of the Fisheries Act 1995, for
"against this Act, the regulations or a fisheries
notice" substitute "under this Act".
(2) For section 125(2) of the Fisheries Act 1995
15
substitute--
"(2) In any proceedings for an offence under this
Act, the statement of an authorised officer
that any place, locality or area is a place,
locality or area referred to under this Act is
20
evidence that the place, locality or area
described is the place, locality or area
referred to under this Act.".
(3) In section 125(3) of the Fisheries Act 1995, omit
"(as each is defined in the regulations)".
25
27. Substitution of section 126
For section 126 of the Fisheries Act 1995
substitute--
"126. Evidence of consignment
The statement on oath of an authorised
30
officer that any packaging or label, slip, tag
or other document on or in any box,
container or package of fish consigned, or
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displayed, for sale is marked with a means of
identifying a person is evidence that that
person consigned or displayed those fish for
sale.".
28. Substitution of section 128
5
For section 128 of the Fisheries Act 1995
substitute--
"128. Additional penalties for licence holders
committing offences
(1) In addition to any other penalty a court may
10
impose, if the holder of a fishery licence or a
permit, or a person acting on his or her
behalf, is convicted of an offence--
(a) that is a breach of a section specified by
the regulations for the purposes of this
15
section; or
(b) that is a breach of a designated licence
condition--
the court may suspend the holder's licence or
permit for a period of up to 12 months.
20
(2) A reference to "a person acting on his or her
behalf" in sub-section (1) only refers to a
person who commits a relevant offence in
the course of carrying out an activity on
behalf of the holder.
25
(3) In addition to any other penalty a court may
impose, if the holder of a fishery licence or a
permit is convicted of an offence set out in
sub-section (1)(a) or (b) for a second time,
the court may suspend the holder's licence or
30
permit for a period of up to 12 months or
may cancel the licence or permit.
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(4) If the court cancels a licence or permit, it
must specify a period during which the
convicted person is not to be eligible to be
granted a new licence or permit.
(5) The Magistrates' Court may, on the
5
application of any person, stay a decision
under this section--
(a) pending an appeal against the decision
to the County Court; or
(b) to enable fishing equipment to be
10
recovered.
(6) If the Magistrates' Court refuses to stay a
decision under this section, the convicted
person may appeal against the refusal to the
County Court.".
15
29. Substitution of section 129
For section 129 of the Fisheries Act 1995
substitute--
"129. Additional penalty--offence by corporation
Despite anything to the contrary in this Act,
20
if a court convicts a corporation of an
offence--
(a) that is a breach of a section specified by
the regulations for the purposes of
section 128; or
25
(b) that is a breach of a designated licence
condition--
the court may impose a penalty of up to
twice the monetary penalty that otherwise
applies in respect of the offence.".
30
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30. Substitution of section 131
For section 131 of the Fisheries Act 1995
substitute--
"131. 10 year limit on previous offences by
licence holders
5
(1) This section applies if a court is determining
the penalty for an offence under this Act that
was committed by a person who held a
fishery licence (other than a recreational
fishery licence) at the time the offence was
10
committed.
(2) For the purposes of determining whether it
may cancel or suspend the licence under this
Act, the court must disregard any previous
conviction incurred by the person under--
15
(a) this Act; or
(b) the Fisheries Act 1968; or
(c) a law of the Commonwealth or another
State or Territory that corresponds to
this Act--
20
for any offence that occurred more than 10
years before the date of the offence for
which the court is determining the penalty.".
31. Changes to the functions of the Commercial Fisheries
Licensing Panel
25
For section 134(a) of the Fisheries Act 1995
substitute--
"(a) consider applications relating to the issue,
transfer or renewal of fishery licences (other
than recreational fishery licences) referred to
30
it by the Secretary;".
32. Clarification concerning the proceedings of the
Licensing Appeals Tribunal
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After section 136(10) of the Fisheries Act 1995
insert--
"(11) After hearing an appeal, the Licensing
Appeals Tribunal may--
(a) affirm the decision; or
5
(b) vary the decision; or
(c) set aside the decision and either--
(i) make a decision in substitution of
the decision; or
(ii) remit the matter that gave rise to
10
the decision for re-consideration
in accordance with any directions
or recommendations of the
Tribunal.
(12) The Licensing Appeals Tribunal may make
15
any order necessary to give effect to its
determination of an appeal under sub-section
(11).
(13) A person to whom such an order is directed
must comply with the order.".
20
33. Substitution of section 137
For section 137 of the Fisheries Act 1995
substitute--
'137. Reviewable decisions
For the purposes of section 136,
25
"reviewable decision" means a decision by
the Secretary--
(a) to refuse to issue a licence under
section 51 or renew a licence under
section 57;
30
(b) to refuse to approve the transfer of a
fishery licence under section 56;
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(c) to vary any licence or permit under
section 54(1)(a);
(d) to impose, vary or revoke any condition
under section 54(1)(b);
(e) to refuse to issue a general permit under
5
section 49(5);
(f) to refuse to place the name of a person
on an access licence for the purposes of
section 39(2);
(g) to defer the renewal of a licence under
10
section 57(8);
(h) to suspend or cancel a fishery licence
under section 58;
(i) to suspend or refuse to renew or
transfer a licence under section 101(3);
15
(j) which the regulations state is a
reviewable decision for the purposes of
this section.'.
34. Removal of the register
Section 138 of the Fisheries Act 1995 is
20
repealed.
35. Changes concerning research carried out by the
Secretary
In section 140 of the Fisheries Act 1995--
(a) for sub-section (1)(b) substitute--
25
"(b) use any commercial fishing equipment,
commercial abalone equipment or
commercial aquaculture equipment or
other device of any kind or any liquid,
solid or gaseous matter.";
30
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(b) for sub-section (2)(i) substitute--
"(i) stock any waters with any species of
fish;".
36. Repeal of section authorising special activities
Section 141 of the Fisheries Act 1995 is
5
repealed.
37. Substitution of section 145
For section 145 of the Fisheries Act 1995
substitute--
"145. Availability for inspection
10
The Secretary must make available for
inspection at the principal office of the
Department without charge during normal
office hours a copy of any fisheries notice,
Order in Council, notice, declaration,
15
management plan, policy statement, quota
order or order under section 62.
38. Exception to the secrecy provision
After section 146(2)(d) of the Fisheries Act 1995
insert--
20
"(e) using skills that were developed as a result of
having access to any information referred to
in sub-section (1) where the use of the skills
does not involve the disclosure of the
information.".
25
39. Change concerning licence and permit applications
(1) For section 148(4) of the Fisheries Act 1995
substitute--
"(4) If the Secretary is of the opinion that the
interests of one or more third parties may be
30
adversely affected by the grant of a licence
(other than a recreational fishery licence) or
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a permit that is the subject of a particular
application, the Secretary may require the
applicant to--
(a) consult any relevant peak body;
(b) advertise the application in a newspaper
5
circulating in the affected area.".
(2) In section 148 of the Fisheries Act 1995--
(a) in sub-section (1), omit ", the regulations or
a fisheries notice";
(b) in sub-section (10)--
10
(i) after "for the issue" insert "or transfer";
(ii) omit "under section 42".
40. Changes concerning licences and permits
(1) For sections 149(1) and (2) of the Fisheries Act
1995 substitute--
15
"(1) While a licence is suspended under this Act,
the person who holds the licence is to be
treated as if he or she did not hold the
licence.".
(2) In section 149(3) of the Fisheries Act 1995, omit
20
"prescribed".
41. Changes concerning royalties and levies
(1) In section 150(2)(b) of the Fisheries Act 1995,
omit "declared".
(2) For section 150(3) of the Fisheries Act 1995
25
substitute--
"(3) The regulations may prescribe the manner in
which, the period in respect of which, and
the date by when, the royalty is to be paid.".
30
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(3) For sections 151(2) and (3) of the Fisheries Act
1995 substitute--
"(2) The prescribed rate of levy may be fixed--
(a) as a fixed amount; or
(b) as a percentage of the fees payable on
5
the licence or permit; or
(c) as a percentage of the royalty payable
in respect of the licence or permit.
(3) The regulations may prescribe the manner in
which, the period in respect of which, and
10
the date by when, the levy is to be paid.".
(4) For section 151(4)(b) of the Fisheries Act 1995
substitute--
"(b) compliance;
(ba) management;
15
(bc) administration;
(bd) funding peak bodies;".
(5) In section 151(5) of the Fisheries Act 1995, after
"class of licence" insert "or permit".
(6) After section 151(5) of the Fisheries Act 1995
20
insert--
"(5A) If, at the time a levy is imposed, the
Secretary states that the money raised by the
levy, or a part of that money, is to be paid to
(or to be applied for the benefit of) one or
25
more organisations, the Secretary must
ensure that that money is paid to (or applied
for the benefit of) that, or those,
organisations.".
42. Insertion of section 151A
30
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After section 151 of the Fisheries Act 1995
insert--
"151A. Additional provisions applying to royalties
and levies
(1) Regulations made under section 150 or 151
5
may provide for all or any of the following
matters--
(a) methods of calculating royalties and
levies;
(b) the reduction, waiver or refund, in
10
whole or in part, of any royalty or levy;
(c) how royalties and levies are to be paid
(including payments by instalments);
(d) the recovery, and payment, of interest
on arrears.
15
(2) Regulations under sub-section (1)(b) may be
expressed to apply either generally or
specifically--
(a) in respect of certain matters or
transactions or classes of matters or
20
transactions; or
(b) when an event happens; or
(c) in respect of certain people or classes of
people; or
(d) in respect of any combination of
25
matters, transactions, events or
people--
and may be expressed to apply subject to
specified conditions or in the discretion of
any specified person or body.".
30
43. Changes concerning fisheries notices
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(1) For sections 152(1)(a), (b) and (c) of the Fisheries
Act 1995 substitute--
"(a) fix and enforce catch limits for any species
of fish specified in the notice;
(b) fix periods during which any specified
5
fishing activity in relation to fish is
prohibited or allowed;
(c) provide for the management of a specified
area of inland waters;".
(2) For section 152(3) of the Fisheries Act 1995
10
substitute--
"(3) If a provision of a fisheries notice is
inconsistent with any regulations,
management plan, policy statement, order
under section 62, licence or permit, the
15
fisheries notice prevails to the extent of the
inconsistency.".
(3) For sections 152(5)(b) and (c) of the Fisheries
Act 1995 substitute--
"(b) must be sent to the relevant recognised peak
20
bodies;
(c) if there are no relevant recognised peak
bodies, must be published in a newspaper
circulating in the area affected by the
notice;".
25
(4) After section 152(5) of the Fisheries Act 1995
insert--
"(5A) Despite sub-section (5)(e), unless sooner
revoked, a fisheries notice made under sub-
section (1)(c) is revoked on the date
30
specified in the notice, which must be a date
that is not more than 3 years after the date
the notice comes into operation.".
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44. Changes concerning regulation making powers
In section 153 of the Fisheries Act 1995--
(a) in sub-section (2), for all words and
expressions after "for or with respect to"
substitute "the matters listed in Schedule
5
3.";
(b) in sub-section (4)(c), omit "an approved
code of fishing practice or";
(c) in sub-section (4)(d), after "Council" insert
", statutory body";
10
(d) for sub-section (6)(h) substitute--
"(h) how fees are to be paid (including
payments by instalments);
(i) the recovery, and payment, of interest
on arrears.".
15
45. Substitution of section 155
For section 155 of the Fisheries Act 1995
substitute--
"155. Saving of existing licences and permits
after repeal
20
(1) Despite the repeal of the Fisheries Act 1968,
any licence, registration or permit that is in
force immediately before the commencement
of section 154 continues in force until--
(a) it expires; or
25
(b) it is replaced by a fishery licence or a
registration or permit issued under this
Act--
whichever occurs first.
(2) Despite the repeal of the Fisheries Act 1968,
30
a licence, registration or permit which is in
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force immediately before the commencement
of section 154 may be renewed once as if
that Act had not been repealed.
(3) For the purposes of this section, the
Fisheries Act 1968 continues to apply in
5
respect of licences, registrations and permits
continued in force by sub-section (1) (or
renewed under sub-section (2)) as if it had
not been repealed and any regulations,
fisheries notice or other instrument under the
10
Fisheries Act 1968 having effect for the
purposes of such licences, registrations and
permits also continue to apply.
(4) The Governor in Council may for the
purposes of this section by notice published
15
in the Government Gazette specify--
(a) an appointed day in respect of all
existing licences, registrations and
permits under the Fisheries Act 1968;
or
20
(b) an appointed day in respect of--
(i) each specified category of
licences, registrations and permits
under the Fisheries Act 1968; or
(ii) specified classes or groups within
25
those categories.
155A. Conversion of existing licences
Subject to section 155B, on the relevant
appointed day (or as soon as is practicable
after that day)--
30
(a) the holder of a master fisherman's
licence under section 13 of the
Fisheries Act 1968 is entitled to be
issued with an access licence that has
entitlements equivalent to those that
35
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applied to the licence immediately
before the relevant appointed day, but
is not entitled to an access licence in
respect of a fishery for which a boat is
licensed under section 14 of the
5
Fisheries Act 1968 (except in
accordance with paragraph (b));
(b) the person for the time being registered
as the owner of a registered fishing boat
that is licensed under section 14 of the
10
Fisheries Act 1968 is entitled to be
issued, in respect of each fishery for
which the boat is licensed, with an
access licence that has entitlements
equivalent to those that applied to the
15
licence immediately before the relevant
appointed day;
(c) the holder of a declared abalone licence
under section 13A or a new abalone
licence under section 13B of the
20
Fisheries Act 1968 is entitled to be
issued with an access licence--
(i) that authorises (in accordance
with this Act) either the holder or
a person approved by the
25
Secretary to take abalone; and
(ii) that otherwise has entitlements
equivalent to those that applied to
the licence immediately before the
relevant appointed day;
30
(d) the holder of a bait licence under
section 13 of the Fisheries Act 1968 is
entitled to be issued with an access
licence that has entitlements equivalent
to those that applied to the licence
35
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immediately before the relevant
appointed day;
(e) the holder of an abalone processor's
licence or an abalone storer's licence
under section 13 of the Fisheries Act
5
1968 is entitled to be issued with a fish
receiver's licence that has entitlements
equivalent to those that applied to the
licence immediately before the relevant
appointed day;
10
(f) the holder of a consolidated master
fisherman's licence or a master
fisherman's licence under section 13AA
of the Fisheries Act 1968 is entitled to
be issued with an access licence that
15
has entitlements equivalent to those that
applied to the licence immediately
before the relevant appointed day;
(g) the holder of a fish-culture permit under
section 25 of the Fisheries Act 1968 is
20
entitled to be issued with an
aquaculture licence--
(i) that has a duration of not more
than 1 year; and
(ii) that otherwise has entitlements
25
equivalent to those that applied to
the permit immediately before the
relevant appointed day.
155B. Beneficial owners of abalone licences may
seek new licence
30
(1) The beneficial owner of a declared abalone
licence under section 13A or a new abalone
licence under section 13B of the Fisheries
Act 1968 may apply to the Secretary at least
90 days before the relevant appointed day to
35
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be issued on the appointed day with an
access licence--
(a) that authorises (in accordance with this
Act) either the owner or a person
approved by the Secretary to take
5
abalone; and
(b) that otherwise has entitlements
equivalent to those that applied to the
licence immediately before the relevant
appointed day.
10
(2) An application must be accompanied by--
(a) evidence in support of the claim of
beneficial ownership; and
(b) any other information required by the
Secretary.
15
(3) Upon receipt of an application, the Secretary
must notify--
(a) the relevant licence holder; and
(b) any holder of a prescribed financial
interest registered under section 14A of
20
the Fisheries Act 1968 of the
application.
(4) The licence holder and each holder of a
prescribed financial interest must within 30
days of receiving the notice advise the
25
Secretary in writing of their approval or
disapproval of the proposed issue of an
access licence to the beneficial owner.
(5) If--
(a) a person does not give the Secretary the
30
advice required by sub-section (4)
within the 30 days; and
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(b) only one beneficial owner applies for
the issue of that licence--
the person is deemed to have approved of the
proposed issue of that licence to that
beneficial owner.
5
(6) If the licence holder and all the holders of a
prescribed financial interest in the licence
have not approved of the proposed issue of
an access licence, the Secretary must not
grant the application by the beneficial owner.
10
(7) The Secretary may refuse to grant an
application if--
(a) the claimed beneficial ownership is not
bona fide; or
(b) the applicant is not a fit and proper
15
person; or
(c) if the applicant is a corporation, the
applicant's nominee or any person in
effective control of the corporation is
not a fit and proper person.
20
(8) In considering an application, the
Secretary--
(a) may refer the matter to the Commercial
Fisheries Licensing Panel for advice;
and
25
(b) must have regard to any
recommendations made by the Panel.
(9) The Secretary must not issue a licence or
permit under this section unless the Secretary
is satisfied that--
30
(a) the holder or beneficial owner of the
licence or permit satisfies the
requirements of this section; and
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(b) the issue of the licence or permit is
consistent with the requirements of this
section.
(10) Despite anything to the contrary in section
155A(c) and sub-section (1), the Secretary
5
may only issue one access licence in respect
of each declared abalone licence under
section 13A and each new abalone licence
under section 13B of the Fisheries Act 1968.
(11) If--
10
(a) more than one person who is entitled to,
or who is entitled to apply for the issue
of, a licence under this section applies
for the licence; and
(b) they do not agree as to who the licence
15
should be issued--
the Secretary must issue the licence to the
licence holder pending the resolution of the
dispute.
155C. Transitional regulations
20
Regulations under this Act may include
savings, transitional or consequential
provisions to facilitate the operation of this
Part and the transition from the Fisheries
Act 1968 to the Fisheries Act 1995.
25
155D. Right to licence lapses if licence not
renewed
A failure to renew any replacement licence
issued under this Part within 30 days of the
licence expiring extinguishes any rights a
30
person may have under this Part in respect of
the licence.".
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46. Substitution of section 157
For section 157 of the Fisheries Act 1995
substitute--
"157. Transitional provision--sections 13A,
13AA and 13C of the Fisheries Act 1968
5
Despite the repeal of the Fisheries Act 1968,
and without limiting section 155(2)--
(a) sections 13AA(2), (5), (6), (8), (9),
(10), (14), (15) and (16) of the
Fisheries Act 1968 continue to apply
10
to a fishery affected by those sections
until an order applicable to that fishery
is made under section 62; and
(b) sections 13A(1) and 13C(1), (3), (4),
(5), (6), (7), (8) and (9) of the Fisheries
15
Act 1968 continue to apply to the
abalone fishery until an order
applicable to that fishery is made under
section 62.".
47. Other changes to transitional provisions
20
(1) In section 158(1) of the Fisheries Act 1995--
(a) omit "a commercial fishing licence or";
(b) paragraph (a) is repealed.
(2) In section 159 of the Fisheries Act 1995, after
"fees" insert ", levies".
25
48. Insertion of section 158A
After section 158 of the Fisheries Act 1995
insert--
"158A. Transitional provision--issue of licences
(1) This section applies to any licence issued to
30
a person under this Act to replace a licence
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held by the person under the Fisheries Act
1968.
(2) Despite anything to the contrary in this Act
or the Fisheries Act 1968, the licence
continues in force for the period specified on
5
the licence by the Secretary, which must not
be a period of more than 1 year.".
49. Minor amendment
For section 162(3) of the Fisheries Act 1995
substitute--
10
"(3) In Schedule 1 of the Conservation, Forests
and Lands Act 1987, after "Fisheries Act
1968" insert "Fisheries Act 1995".
50. Minor and consequential amendments
(1) In the Fisheries Act 1995--
15
(a) in section 5--
(i) in sub-section (1)(a), for "taxa"
substitute "species";
(ii) in sub-sections (1)(f) and (2), for
"taxon" substitute "species";
20
(b) in section 6, for "taxon" substitute
"species";
(c) in section 10(2)(a), for "fishing" substitute
"fishery";
(d) in section 20(1), omit "and the regulations
25
and any fisheries notices";
(e) in section 22(3), omit ", limitations,
restrictions and endorsements";
(f) in section 22(4), for "endorse" substitute
"vary";
30
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(g) in section 22(5)--
(i) for "an endorsement" substitute "a
variation";
(ii) for "the endorsement" (wherever
occurring) substitute "the variation";
5
(h) in section 23(b)(i), omit "or an endorsement
of a licence or permit";
(i) in section 72(1), omit "and the regulations";
(j) in section 72(3)(a)(i), for "any prescribed"
substitute "the relevant";
10
(k) in section 83(1), for "an established"
substitute "a";
(l) in section 85(2), for "regulated noxious
aquatic species or established" substitute
"any";
15
(m) in section 101(1)--
(i) omit "declared" (wherever occurring);
(ii) in paragraph (c), omit "or any kind or";
(n) in section 102(2)--
(i) in paragraphs (a) and (h), omit
20
"declared";
(ii) in paragraphs (e) and (g), omit
"prohibited";
(o) in section 102(6)(a), for "by the regulations"
substitute "by this Act";
25
(p) in sections 103(3)(b) and 105(1)(b), omit
"declared";
(q) in sections 142(1)(a) and (b), omit "or the
regulations";
(r) in section 143(2)(f), for "63 or 64"
30
substitute "67".
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(2) For section 5(4) of the Fisheries Act 1995
substitute--
"(4) A reference in this Act to fish may be made
by reference to the species, geographical
location, number, weight or other description
5
or classification of the fish.".
(3) For sections 22(6) and (7) of the Fisheries Act
1995 substitute--
"(6) Subject to sections 25(1)(b) and (c), on a
fishery becoming a Joint Authority fishery,
10
any regulation, fisheries notice, Order in
Council, notice, declaration, order, policy
statement or order under section 62 that
applies to the fishery under this Act ceases to
apply to the fishery.
15
(7) This section does not empower a Joint
Authority to grant or to take any other action
in respect of a licence in respect of a foreign
boat.".
51. Insertion of Schedule 3
20
After Schedule 2 of the Fisheries Act 1995
insert--
"SCHEDULE 3
Regulation-Making Powers
25 1. Fishing activities
1.1 Prohibiting or regulating the taking, receiving, handling,
keeping, possession, landing, processing, storage,
transporting, distribution, preparation, marketing,
presentation and sale of fish, fishing bait, protected aquatic
30 biota or noxious aquatic species.
1.2 The orderly fishing and preservation of good order and
safety among fishers in Victorian waters.
1.3 Prohibiting or regulating methods for taking fish.
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1.4 Prescribing catch limits.
1.5 Prescribing restrictions as to size or other characteristics of
fish.
1.6 Regulating fishing competitions.
5 1.7 Requiring the provision of reports in relation to any activity
prohibited or regulated by this Act.
1.8 Prohibiting or regulating the marking, branding or tagging
of fish.
1.9 Prohibiting or regulating the mutilation of, interference
10 with, shucking of, removal of eggs from, removal of shells
from or fin clipping of fish.
1.10 Prohibiting or regulating berleying and the use of substances
as berley.
2. Measurements
15 2.1 Prescribing methods for measuring the size, weight, length,
number or value of any fish (either before, during or after
processing).
2.2 Prescribing methods for equating the quantity, size, weight,
length, number or value of fish (or parts of fish) in one form
20 (for example, unprocessed fish) to the quantity, size, weight,
length, number or value of fish (or parts of fish) in a
different form (for example, processed fish).
2.3 Prescribing methods for measuring boats and equipment and
parts of boats and equipment.
25 2.4 Regulating the weighing of fish.
3. Licences and permits
3.1 Creating new categories of fishery licences authorising the
holders of the licences to carry out specified activities
relating to specified fish or fisheries.
30 3.2 Creating new categories of licences and permits authorising
the holders of the licences or permits to do anything else
regulated by this Act.
3.3 Creating, modifying or revoking classes of licences and
permits within categories of licences and permits.
35 3.4 Prescribing procedures and conditions for the issue of new
licences whether upon application or by public tender.
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3.5 Prescribing the maximum number of licences of a particular
type that may be issued in respect of a particular fishery or
activity.
3.6 Prescribing the maximum number of licences of a particular
5 class or in respect of a particular fishery or activity that may
be held by the same person.
3.7 Prescribing which classes of licences are transferable or
renewable and which are not (where this is not dealt with by
this Act).
10 3.8 Prescribing procedures and conditions for the transfer or
renewal of licences and permits that are transferable or
renewable.
3.9 Prescribing grounds for the refusal of the issue or variation
of licences and permits and for the refusal of the transfer or
15 renewal of licences and permits that are transferable or
renewable.
3.10 Prohibiting or regulating the granting of fishery licences to
corporations.
3.11 Prescribing eligibility criteria in respect of licences and
20 permits, including requirements where the applicant or
holder is a corporation relating to the corporation, people in
effective control of the corporation or nominees of the
corporation.
3.12 Prescribing the maximum duration of different categories or
25 classes of licences and permits where that duration is not
specified by this Act.
3.13 Prescribing conditions to which licences or permits are
subject.
3.14 Prohibiting or regulating the possession and use of
30 equipment by, and other activities of, the holders of
specified classes of licences or permits.
3.15 Prohibiting or regulating the use by the holders of licences
of assistance by other people in undertaking any activity
permitted by the licence, and who may provide that
35 assistance.
3.16 Regulating the activities of agents of licence and permit
holders while acting as agents.
3.17 Reducing the number of licences or permits that are held in
respect of a fishery.
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3.18 Requiring bonds (or similar financial assurances) as a pre-
condition to the issuing of an aquaculture licence to ensure
that the area to be used under the licence is restored to a
specified state after the expiry of the licence.
5 4. Boats and Equipment
4.1 Providing for the registration of boats and the transfer and
renewal of the registration of boats.
4.2 Prescribing equipment to be installed in or carried on fishing
boats for the handling or storage of fish.
10 4.3 Prohibiting or regulating boats having on board commercial
fishing equipment while in Victorian waters closed to the
use of such equipment.
4.4 Prohibiting or regulating the use of boats or equipment for
the taking or landing of fish, fishing bait, protected aquatic
15 biota or noxious aquatic species for sale and prescribing the
type of identification or marking required on such boats or
equipment.
4.5 Prohibiting or regulating the use, possession or sale of
specified fishing or aquaculture equipment and prescribing
20 specifications for such equipment.
4.6 Defining fishing or aquaculture equipment for the purposes
of this Act and prescribing its use.
4.7 Regulating the use of charter boats for recreational fishing
or the non-consumptive use of fish (including the licensing
25 of such boats or their operators).
4.8 Prohibiting or regulating the transfer of boats and equipment
between licence or permit holders (including transfer
provisions intended to reduce the quantity of equipment in
use).
30 4.9 Prohibiting or regulating the marking of aquaculture
equipment within specified areas.
4.10 Prohibiting or regulating the leaving or setting of
commercial fishing equipment and commercial aquaculture
equipment.
35 5. Fees
5.1 Prescribing fees for applications, the issue or holding of
licences and permits and the variation, transfer or renewal of
(where permitted) licences and permits (including fees that
are to be determined by reference to the value or price of a
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licence or permit (for example a transfer fee that is to be a
specified percentage of the price of a licence)).
5.2 Prescribing fees for the registration, transfer and renewal of
registration of boats and equipment used to take fish or
5 fishing bait.
5.3 Prescribing fees for the taking of fish from charter or hire
boats.
5.4 Prescribing fees to be charged for the inspection of live fish
being introduced into Victoria and for other services
10 rendered by authorised officers.
5.5 Prescribing fees for the use of agents by the holders of
licences in undertaking any activity permitted by the
licence.
5.6 Prescribing fees for the transfer of individual quota units
15 (including for forfeited individual quota units).
5.7 Prescribing fees in respect of tenders.
5.8 Prescribing fees for the maintenance of aquaculture zones
and facilities.
5.9 Regulating the fees that the owners or occupiers of
20 privately-owned land may charge people to angle or fish on
that land.
6. Miscellaneous matters
6.1 Declaring a fishery to be a developing fishery and
prohibiting or regulating fishing activities in that fishery.
25 6.2 Prescribing criteria for the declaration of any protected
aquatic biota.
6.3 Prohibiting or regulating the bringing of specified classes of
fish, fishing bait, protected aquatic biota or noxious aquatic
species into Victoria, the disposal of water used for such
30 purposes and the disposal of refuse from fish or noxious
aquatic species.
6.4 Providing for the marking of the boundaries of areas held
under licences or permits, the regular inspection of such
areas and prohibiting or regulating the erection,
35 construction, maintenance, protection and regulation of
boundary beacons, buoys, posts, stakes or other marks.
6.5 Prohibiting or regulating aquaculture activities.
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6.6 Prohibiting or regulating the release of live fish or live
fishing bait into any waters.
6.7 Prescribing any thing required to support the operation of a
quota order.
5 7. Administrative matters
7.1 Prescribing notices, signs and documents, including forms,
dockets and tags, for the purposes of this Act and
prohibiting or regulating the use, possession, interference
with, defacement, alteration, or mutilation of such notices,
10 signs or documents.
7.2 Requiring the keeping of records and the furnishing of
returns and information by the holders of licences, permits
or other authorities under this Act or by other people who
handle fish or fishing bait.
15 7.3 Requiring people who possess more than a specified
quantity of fish to have specified documents in their
possession.
7.4 Prescribing the form of and procedures for the issue of
licences and permits.
20 7.5 Prescribing persons or classes of persons who may be
authorised by the Secretary to issue specified classes of
recreational fishery licences.
7.6 Prescribing forms.
8. General
25 8.1 Prescribing offences the penalties for which do not include
cancellation of the relevant licence or permit.
8.2 Exempting a person from the need to hold a licence, permit
or authority under this Act.
30
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NOTES
By Authority. Government Printer for the State of Victoria.
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