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PARLIAMENT OF VICTORIA
Fisheries (Further Amendment) Act 2003
Victorian Legislation and Parliamentary Documents
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY MATTERS 1
1. Purpose 1
2. Commencement 2
PART 2--ENFORCEMENT PROVISIONS 3
Division 1--Offences 3
3. Definitions 3
4. Insertion of section 7B 4
7B. Expanded meaning of "possession" of fish or fishing
equipment 4
5. Insertion of Division 1A into Part 7 4
Division 1A--Indictable Offences 4
111A. Offence to traffick in a commercial quantity of a priority
species 4
111B. Offence to take a commercial quantity of a priority
species within 24 hours 5
111C. Offence to possess a commercial quantity of a priority
species 5
6. Consequential amendment to section 6 5
7. Insertion of sections 119A and 119B 6
119A. Offence to knowingly make false or misleading
statements in relation to priority species 6
119B. Offence to make false or misleading statements 6
Division 2--Amendment to the Confiscation Act 1997 7
8. Additional forfeiture and automatic forfeiture offences 7
Division 3--Powers of Authorised Officers 8
9. Insertion of sections 101A--101I 8
101A. Authorised officer may execute warrant to arrest 8
101B. Powers of arrest 8
101C. Power to arrest person in breach of an order 9
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101D. Arrest on reasonable grounds not to be taken to be
unlawful 9
101E. Power to arrest person released on bail 10
Victorian Legislation and Parliamentary Documents
101F. Power to arrest a person against whom a warrant has
been issued 10
101G. Power to search person for priority species 11
101H. Records of searches 13
101I. Information on searches to be included in annual report 13
10. Extension of who may execute a search warrant 14
11. Provision of name and address 14
12. Authorised officers do not commit offences in certain
circumstances 14
13. Offence to resist authorised officer performing duty 14
Division 4--Other Enforcement Matters 15
14. Additional requirement to establish defence concerning actions of
agents 15
15. Evidentiary and onus of proof provisions 15
16. Insertion of sections 126A and 126B 16
126A. Evidence of weight or measurement 16
126B. Label of can of abalone is evidence of contents 16
17. Time for bringing proceedings 16
18. Insertion of section 128A 16
128A. Additional penalty for agents of licence holders 16
19. Minor consequential amendment 17
20. Increased penalties for corporations 17
21. Insertion of section 130C 18
130C. Contempt of court proceedings if order breached 18
22. Minor consequential amendments to the Magistrates' Court
18
Act 1989
PART 3--OTHER AMENDMENTS 19
23. Change to objective 19
24. Insertion of section 11A 19
11A. This Act applies to fisheries reserves on land 19
25. Fisheries reserve management plans 19
26. Alternative method for creating aquaculture licences 19
27. Insertion of section 51A 20
51A. Minister may determine that licences be publicly sold 20
28. Consequential amendment in relation to section 27 21
29. Change to who may hold licence 21
30. Insertion of sections 57A and 57B 22
57A. Transitional provision concerning certain licences held
by more than one person 22
57B. Restriction on the re-issue of cancelled licences 23
31. Licence conditions to be displayed 24
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32. Removal notice on cessation of aquaculture activities 24
33. Insertion of section 61A 25
61A. Validation of direction published on 3 April 2003 25
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34. Compensation arising if access licence cancelled by direction
under section 61 25
35. Minister may restrict quota unit transfers involving sub-zones 27
36. Insertion of section 64C 28
64C. No compensation payable for losses resulting from
quota orders 28
37. Insertion of section 65B 28
65B. Minister may determine that quota units be publicly
sold 28
38. Extension of meaning of "permitted amount" 29
39. Fisheries reserves 29
40. Fisheries Co-Management Council membership 30
41. Insertion of section 141 30
141. Fisheries Plant and Equipment Fund 30
42. Insertion of section 145A 32
145A. Secretary may supply names to peak bodies 32
43. Clarification of intent of suspension 33
44. Levies 33
45. Fisheries notices 33
46. Repeal of abalone access licence fee cap 34
47. Insertion of Part 11 34
PART 11--DETERMINATION OF DISPUTES 34
Division 1--Preliminary Matters 34
199. Application of this Part 34
200. Definitions 34
Division 2--Application/Referral Process 35
201. Application or referral of disputed claim 35
202. Jurisdiction 35
203. Form of notice of referral 36
204. Service of notice of referral on other parties 36
205. Withdrawal application 36
Division 3--Compulsory Conference in the Court 37
206. Compulsory conference 37
207. Objects of compulsory conference 37
208. Parties may vary offer or claim 37
209. Settlement 38
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Division 4--Determinations 38
210. Determination of claim 38
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211. Principles to be applied in determining compensation 38
212. Costs 39
213. Payment of compensation 40
214. Supreme Court--limitation of jurisdiction 40
48. Membership and procedure of bodies 40
49. Additional miscellaneous regulation-making powers 41
50. Minor amendments 42
ENDNOTES 43
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PARLIAMENT OF VICTORIA
Initiated in Assembly 28 October 2003
As amended by Assembly 20 November 2003
Victorian Legislation and Parliamentary Documents
A BILL
to amend the Fisheries Act 1995, the Confiscation Act 1997 and the
Magistrates' Court Act 1989 and for other purposes.
Fisheries (Further Amendment) Act
2003
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY MATTERS
1. Purpose
The purpose of this Act is--
(a) to amend the Fisheries Act 1995--
5 (i) to create various indictable offences in
relation to trafficking in, taking and
possessing abalone and rock lobster;
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Fisheries (Further Amendment) Act 2003
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s. 2
(ii) to increase the powers of authorised
officers in relation to the enforcement
of that Act; and
Victorian Legislation and Parliamentary Documents
(iii) to facilitate aquaculture activities; and
5 (iv) to modify and clarify the operation of
the compensation provisions of that
Act; and
(v) to generally improve the operation of
that Act; and
10 (b) to make consequential amendments to the
Confiscation Act 1997 and the Magistrates'
Court Act 1989.
2. Commencement
(1) This Act (other than sections 5, 29(3), 30, 31, 44
15 and 46) comes into operation on the day after the
day on which it receives the Royal Assent.
(2) Subject to sub-sections (3) and (4), sections 5 and
44 come into operation on a day or days to be
proclaimed.
20 (3) If section 5 does not come into operation before
1 January 2005, it comes into operation on that
day.
(4) If section 44 does not come into operation before
1 April 2004, it comes into operation on that day.
25 (5) Sections 31 and 46 come into operation on 1 April
2004.
(6) Sections 29(3) and 30 come into operation on
31 December 2004.
__________________
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PART 2--ENFORCEMENT PROVISIONS
Victorian Legislation and Parliamentary Documents
Division 1--Offences
3. Definitions
See:
In section 4(1) of the Fisheries Act 1995 insert Act No.
5 the following definitions-- 92/1995.
Reprint No. 3
' "commercial quantity" means-- as at
16 November
(a) in the case of abalone, one or more of 2002 and
amending
the following-- Act Nos
24/2003
(i) 100 or more abalone; or and 56/2003.
LawToday:
10 (ii) 2 kilograms or more of dried www.dms.
dpc.vic.
abalone; or gov.au
(iii) 10 kilograms or more of canned
abalone (including the weight of
the cans and anything else in the
15 cans); or
(iv) 10 kilograms or more of abalone
in any other form (including
shells, ice or any other thing that
cannot readily be separated from
20 the abalone in the form that it is
found);
(b) in the case of rock lobster, 20 or more
rock lobsters;
"Department" means the Department of Primary
25 Industries;'.
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4. Insertion of section 7B
After section 7A of the Fisheries Act 1995
Victorian Legislation and Parliamentary Documents
insert--
'7B. Expanded meaning of "possession" of fish
5 or fishing equipment
Without limiting the meaning of "possess",
for the purposes of this Act a person
possesses a fish or an item of fishing
equipment if the fish or item is on any land
10 or premises occupied by him or her, or is
under the person's control, unless the person
can satisfy the relevant court to the
contrary.'.
5. Insertion of Division 1A into Part 7
15 After Division 1 of the Fisheries Act 1995
insert--
'Division 1A--Indictable Offences
111A. Offence to traffick in a commercial
quantity of a priority species
20 (1) A person must not traffick in a commercial
quantity of a priority species unless he or she
is authorised to do so under this Act.
(2) A person who contravenes sub-section (1) is
guilty of an indictable offence and is liable to
25 a penalty not exceeding level 5
imprisonment (10 years maximum).
(3) Without limiting sub-section (1), a reference
to "traffick" in this section includes--
(a) preparing a priority species for
30 trafficking;
(b) processing a priority species;
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(c) selling a priority species;
(d) taking a priority species for sale;
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(e) receiving a priority species.
111B. Offence to take a commercial quantity of a
5 priority species within 24 hours
(1) A person must not, within any 24 hour
period, take a commercial quantity of a
priority species unless he or she is authorised
to do so under this Act.
10 (2) A person who contravenes sub-section (1) is
guilty of an indictable offence and is liable to
a penalty not exceeding level 6
imprisonment (5 years maximum).
111C. Offence to possess a commercial quantity
15 of a priority species
(1) A person must not possess a commercial
quantity of a priority species unless he or she
is authorised to do so under this Act.
(2) A person who contravenes sub-section (1) is
20 guilty of an indictable offence and is liable to
a penalty not exceeding level 6
imprisonment (5 years maximum).'.
6. Consequential amendment to section 6
In the heading to Division 2 of Part 7 of the
25 Fisheries Act 1995, before "Offences" insert
"Other".
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7. Insertion of sections 119A and 119B
After section 119 of the Fisheries Act 1995
Victorian Legislation and Parliamentary Documents
insert--
"119A. Offence to knowingly make false or
5 misleading statements in relation to
priority species
A person must not, in making, keeping or
furnishing any record, return, account or any
other information under this Act in relation
10 to a priority species--
(a) make a statement that he or she knows
is false or misleading in a material
detail; or
(b) fail to include any material matter in
15 the record, return, account or
information with the knowledge that
the failure will cause the record, return,
account or information to be false or
misleading.
20 Penalty: Level 7 imprisonment (2 years
maximum), a fine of 240 penalty
units or both.
119B. Offence to make false or misleading
statements
25 A person must not, in making, keeping or
furnishing any record, return, account or any
other information under this Act--
(a) make a statement that is false or
misleading in a material detail; or
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(b) fail to include any material matter in
the record, return, account or
information where the failure causes
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the record, return, account or
5 information to be false or misleading.
Penalty: 60 penalty units.".
Division 2--Amendment to the Confiscation Act 1997
8. Additional forfeiture and automatic forfeiture
offences
10 (1) After item 7(t) in Schedule 1 to the Confiscation
Act 1997 insert--
"(ta) section 119A (knowingly make false or misleading
statements in relation to priority species).".
(2) After item 9 in Schedule 2 to the Confiscation
15 Act 1997 insert--
"10. An offence against section 111A, 111B or 111C of the
Fisheries Act 1995 where--
(a) only one offence is charged and the export
value at the time of the offence of the fish
20 involved in the offence is $50 000 or more; or
(b) more than one offence is charged and the
offences are founded on the same facts or form
or are part of a series of offences of the same or
similar character and the export value at the
25 time, or times, of the offences of the fish
involved in the offences is $75 000 or more.".
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Division 3--Powers of Authorised Officers
9. Insertion of sections 101A--101I
Victorian Legislation and Parliamentary Documents
After section 101 of the Fisheries Act 1995
insert--
5 '101A. Authorised officer may execute warrant to
arrest
(1) An authorised officer may execute a warrant
to arrest issued in respect of an offence under
this Act.
10 (2) A warrant to arrest directed to a named
authorised officer may be executed by any
authorised officer or member of the police
force.
101B. Powers of arrest
15 (1) This section applies if an authorised officer
or a member of the police force believes on
reasonable grounds that a person has
committed an offence under this Act.
(2) The officer or member may without warrant
20 arrest the person if the officer or member
believes on reasonable grounds that the
arrest is necessary for any one or more of the
following reasons--
(a) to ensure the appearance of the person
25 before a court of competent
jurisdiction; or
(b) to prevent the continuation or repetition
of the offence or the commission of a
further offence; or
30 (c) to prevent the concealment, loss or
destruction of evidence relating to an
offence; or
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(d) to prevent the fabrication of evidence in
relation to an offence; or
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(e) to prevent the harassment of, or
interference with, a potential witness in
5 proceedings in respect of an offence.
(3) The officer or member may ask any other
person to assist him or her to arrest an
alleged offender, and that other person may
assist in the arrest.
10 (4) If an alleged offender is arrested under this
section in respect of a summary offence, he
or she may only be detained for so long as
the reason for the arrest under sub-section (2)
continues. The person detaining the alleged
15 offender must release the alleged offender as
soon as the reason ceases to exist, regardless
of whether or not the alleged offender has
been charged with the offence.
Note: Division 1(30A) of Part III of the Crimes Act 1958
20 sets out the procedure that is to be followed by an
authorised officer after an arrest under this Division.
101C. Power to arrest person in breach of an
order
An authorised officer or a member of the
25 police force may without warrant arrest a
person who the officer or member suspects is
breaching, or has just breached, an order
imposed on the person under section 130,
130A or 130B.
30 101D. Arrest on reasonable grounds not to be
taken to be unlawful
An arrest under section 101B or 101C does
not cease to be lawful merely because it
subsequently appears, or is found, that the
35 person arrested did not commit the offence
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the arresting officer believed he or she had
committed.
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101E. Power to arrest person released on bail
(1) An authorised officer may without warrant
5 arrest a person who has been released on bail
in respect of an offence under this Act--
(a) if the officer suspects on reasonable
grounds that the person is breaking, has
broken, or is likely to break, any of his
10 or her bail conditions; or
(b) if the officer is notified in writing by
any surety for the person that the surety
believes that the person is likely to
break the condition for his or her
15 appearance and for that reason the
surety wishes to be relieved of his or
her obligations as a surety; or
(c) if the officer has reasonable grounds for
suspecting that any surety is dead, or
20 that for any other reason the security is
no longer sufficient.
(2) Sections 24(2) to 24(5) of the Bail Act 1977
apply to an arrest under this section as if a
reference in section 24(2) to "sub-
25 section (1)" was a reference to sub-
section (1).
101F. Power to arrest a person against whom a
warrant has been issued
(1) If a warrant to arrest a person who is charged
30 with an offence under this Act has been
issued, an authorised officer or a member of
the police force may arrest the person even
though the officer or member does not have
the execution copy of the warrant in his or
35 her possession.
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(2) Sections 65(2) to 65(6) of the Magistrates'
Court Act 1989 apply to an arrest under this
section as if--
Victorian Legislation and Parliamentary Documents
(a) a reference in those sections to "sub-
5 section (1)" was a reference to sub-
section (1); and
(b) a reference to a member of the police
force included a reference to an
authorised officer.
10 101G. Power to search person for priority
species
(1) If an authorised officer, or a member of the
police force, suspects on reasonable grounds
that a person has on or about his or her body
15 any fish of a priority species that the person
is not lawfully authorised to have in his or
her possession, the member or officer may
search the person.
(2) Before searching a person, if the officer or
20 member--
(a) is not in uniform, he or she must
produce for inspection by the person to
be searched evidence of his or her
identity as an authorised officer or
25 member of the police force;
(b) is in uniform, he or she must produce
for inspection by the person to be
searched evidence of his or her identity
as an authorised officer or member of
30 the police force if asked to do so by the
person.
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(3) In searching a person under this section, the
officer or member--
Victorian Legislation and Parliamentary Documents
(a) may run his or her hands over the
person's outer clothing; and
5 (b) may require the person to remove any
coat, jacket, hat or shoes the person is
wearing, and may run his or her hands
over the person's remaining outer
clothing; and
10 (c) if the officer or member sees or detects
any thing that he or she has reasonable
grounds for suspecting is, or contains,
fish of a priority species, may require
the person to surrender that item for
15 inspection; and
(d) may use reasonable force to remove an
item from a person if the person does
not comply with a requirement to
remove or surrender the item under
20 paragraph (b) or (c); and
(e) may inspect any item that a person has
removed or surrendered, or that has
been removed from a person; and
(f) must conduct the search in a manner
25 that affords, to the extent that the
circumstances of the search permit,
reasonable privacy to the person being
searched; and
(g) must conduct the search as quickly as is
30 reasonably practicable in the
circumstances of the search.
(4) A search must be conducted by a person of
the same sex as the person being searched
unless it is not reasonable or practicable to
35 do so in the circumstances of the search.
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101H. Records of searches
(1) As soon as possible after completing a
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search, the person who conducted the search
must record in writing details of the search,
5 including the grounds on which the search
was conducted, the time and place of the
search, the name (if known) of the person
who was searched and the result of the
search.
10 (2) The Chief Commissioner of Police must
ensure that a copy of every record created by
a member of the police force under this
section is given to the Secretary as soon as is
practicable after the creation of the record.
15 (3) The Secretary must give a person who has
been searched under section 101G a copy of
the record of the search without charge if
asked to do so by the person within 1 year
after the date of the search.
20 101I. Information on searches to be included in
annual report
As soon as is practicable after the end of a
financial year, the Secretary must provide to
the Minister for inclusion in the
25 Department's annual report of operations
under Part 7 of the Financial Management
Act 1994 a report containing--
(a) the number of searches conducted
under section 101G in that financial
30 year; and
(b) the number and type of priority species
found during the course of those
searches; and
(c) any other information requested by the
35 Minister.'.
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10. Extension of who may execute a search warrant
In section 103(3) of the Fisheries Act 1995, for
Victorian Legislation and Parliamentary Documents
"authorises the" substitute "authorises any".
11. Provision of name and address
5 (1) Insert the following heading to section 109 of the
Fisheries Act 1995--
"Power to require name and address";
(2) For sections 109(1) and 109(2) of the Fisheries
Act 1995 substitute--
10 "(1) This section applies if an authorised officer
or a member of the police force believes on
reasonable grounds that a person has
committed an offence under this Act.
(2) The officer or member may demand that the
15 person give details of his or her name and
place of residence to the officer or member.".
12. Authorised officers do not commit offences in
certain circumstances
In section 110A(1) of the Fisheries Act 1995--
20 (a) after "76, 111," insert "111A to 111C,";
(b) for "or 116" substitute ", 116, 119A or
119B".
13. Offence to resist authorised officer performing duty
In section 111(2) of the Fisheries Act 1995, after
25 "hinder," insert "resist,".
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Division 4--Other Enforcement Matters
14. Additional requirement to establish defence
Victorian Legislation and Parliamentary Documents
concerning actions of agents
For sections 53(3)(a) and 53(3)(b) of the Fisheries
5 Act 1995 substitute--
"(a) that, at the time the offence was committed,
there was in force a written agreement
between him or her and the person under
which the person agreed to comply with all
10 relevant conditions to which the licence was
subject and all other relevant requirements of
this Act and the regulations; and
(b) that he or she did everything else that was
reasonably practicable to ensure that the
15 person would comply with the condition; and
(c) that he or she did not in any way aid, abet,
counsel or procure the person to fail to
comply with the condition.".
15. Evidentiary and onus of proof provisions
20 After section 122(3) of the Fisheries Act 1995
insert--
'(4) For the purposes of this Act, a reference in
section 130(4) of the Magistrates' Court
Act 1989 to the "Court" is to be read as a
25 reference to the court hearing the relevant
case.
Note: This sub-section ensures that if an indictable offence
is prosecuted before the Supreme or County Courts,
that Court may allow the prosecutor to re-open the
30 prosecution case if the defendant, after the closing of
that case, presents or points to evidence that an
exception, exemption, proviso, excuse or
qualification applies to the defendant.'.
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16. Insertion of sections 126A and 126B
After section 126 of the Fisheries Act 1995
Victorian Legislation and Parliamentary Documents
insert--
"126A. Evidence of weight or measurement
5 In any proceedings for an offence against
this Act, the statement on oath of an
authorised officer as to any weight, quantity
or measurement recorded, observed or taken
by the officer is evidence that the weight,
10 quantity or measurement was as stated by the
officer at the time of the recording,
observation or measurement.
126B. Label of can of abalone is evidence of
contents
15 The statement on oath of an authorised
officer that a sealed can was labelled with a
statement to the effect that the contents of
the can contained abalone is evidence that
the can contained abalone.".
20 17. Time for bringing proceedings
At the end of section 127 of the Fisheries Act
1995 insert--
"(2) Sub-section (1) does not apply to indictable
offences.".
25 18. Insertion of section 128A
After section 128 of the Fisheries Act 1995
insert--
"128A. Additional penalty for agents of licence
holders
30 (1) This section applies if--
(a) a court finds a person guilty of an
offence against section 53(4); and
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(b) regulations have been made for the
purposes of this section specifying one
or more classes of licence.
Victorian Legislation and Parliamentary Documents
(2) In addition to any other penalty the court
5 may impose, the court may prohibit the
person from acting for a specified period on
behalf of the holder of any licence that is of a
class specified by the regulations for the
purposes of this section.
10 (3) In making an order, the court--
(a) may not specify a period under sub-
section (2) of more than 10 years; and
(b) may impose any other requirement on
the person that it considers necessary or
15 expedient to give effect to the order.".
19. Minor consequential amendment
At the foot of section 53(4) of the Fisheries Act
1995 insert--
"Note: If a person is convicted under sub-section (4), section
20 128A enables the court to prohibit the person
convicted from acting on behalf of certain classes of
licence holders in certain cases.".
20. Increased penalties for corporations
At the end of section 129 of the Fisheries Act
25 1995 insert--
"(2) Despite anything to the contrary in this Act
or the Sentencing Act 1991, if a court
convicts a corporation, or finds a corporation
guilty, of an indictable offence against this
30 Act, the court may impose a penalty of up to
5 times the monetary penalty that otherwise
applies in respect of the offence.".
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21. Insertion of section 130C
After section 130B of the Fisheries Act 1995
Victorian Legislation and Parliamentary Documents
insert--
"130C. Contempt of court proceedings if order
5 breached
Nothing in section 130(4), 130A(5) or
130B(6) is intended to prevent the bringing
of proceedings for contempt of court against
a person who has failed to comply with an
10 order made under section 130, 130A or 130B
and who has not had a charge under section
130(4), 130A(5) or 130B(6) in respect of the
failure dealt with.".
22. Minor consequential amendments to the
15 Magistrates' Court Act 1989
(1) In section 37(2)(b) of the Magistrates' Court
Act 1989--
(a) in sub-paragraph (ii), for "Police--"
substitute "Police; or";
20 (b) after sub-paragraph (ii) insert--
"(iii) an authorised officer within the
meaning of the Fisheries Act 1995--".
(2) In Schedule 5 to the Magistrates' Court Act
1989, after clause 8(1)(via) insert--
25 "(vib) an authorised officer within the meaning of
the Fisheries Act 1995; or".
__________________
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PART 3--OTHER AMENDMENTS
Victorian Legislation and Parliamentary Documents
23. Change to objective
For section 3(e) of the Fisheries Act 1995
substitute--
5 "(e) to promote the commercial fishing industry
and to facilitate the rationalisation and
restructuring of the industry;".
24. Insertion of section 11A
After section 11 of the Fisheries Act 1995
10 insert--
"11A. This Act applies to fisheries reserves on
land
This Act applies to--
(a) any fisheries reserve declared under
15 section 88(1)(b) or 88(1)(c); and
(b) any land on which an aquaculture
activity is being conducted.".
25. Fisheries reserve management plans
After section 28(6)(a) of the Fisheries Act 1995
20 insert--
"(aa) be consistent with any guidelines issued
under sub-section (2);".
26. Alternative method for creating aquaculture
licences
25 After section 43(1) of the Fisheries Act 1995
insert--
"(1A) The Minister may, by order published in the
Government Gazette, create classes of
aquaculture licences to give effect to a
30 management plan and may specify that the
holder of an aquaculture licence of a
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particular class may do one or more of the
things listed in sub-sections (1)(a) to (1)(c) in
the reserve to which the management plan
Victorian Legislation and Parliamentary Documents
applies.
5 (1B) The Minister may only create a class of
aquaculture licence under sub-section (1A) if
the draft management plan for the reserve
states that the creation of that class of licence
will be necessary to give effect to the plan.
10 (1C) A licence of a class of aquaculture licence
created under sub-section (1A) is subject to
the same fees and levies as apply to a licence
of a specified class of aquaculture licence
created by the regulations.
15 (1D) In creating a class of aquaculture licence
under sub-section (1A), the Minister must,
for the purposes of sub-section (1C), specify
a class of aquaculture licence created by the
regulations.".
20 27. Insertion of section 51A
After section 51 of the Fisheries Act 1995
insert--
"51A. Minister may determine that licences be
publicly sold
25 (1) This section applies if the Secretary
proposes--
(a) to issue a new licence (other than a
recreational fishery licence); or
(b) to re-issue a licence that has been
30 surrendered or cancelled, or that has
otherwise become available.
(2) The Minister may determine that the licence
is to be publicly sold.
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(3) In making a determination, the Minister must
specify the method by which the sale is to
take place.
Victorian Legislation and Parliamentary Documents
(4) Without limiting sub-section (3), a sale may
5 occur by auction, tender or ballot.".
28. Consequential amendment in relation to section 27
After section 51(4) of the Fisheries Act 1995
insert--
"(4A) In the case of a licence that the Minister has
10 determined under section 51A is to be
publicly sold--
(a) the Secretary may only issue the licence
to the person who was the successful
party under the sale process; and
15 (b) the Secretary may only issue the licence
to that person if there are no grounds
under sub-section (4) to refuse to issue
the licence.
(4B) For the purposes of sub-section (4A), "the
20 successful party under the sale process" is
the first person who pays for the licence
under the terms of the sale who is also
eligible to be issued the licence under sub-
section (4A)(b).".
25 29. Change to who may hold licence
(1) Insert the following definition in section 4(1) of
the Fisheries Act 1995--
' "corporation" means a corporation that--
(a) has a registered office in Australia; and
30 (b) that holds an Australian Company
Number;
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"co-operative" means a body registered as a
co-operative--
Victorian Legislation and Parliamentary Documents
(a) under the Co-operatives Act 1996; or
(b) under an equivalent law of another
5 Australian jurisdiction;'.
(2) After section 51(3) of the Fisheries Act 1995
insert--
"(3A) Despite anything to the contrary in any law,
the Secretary may only issue an access
10 licence or an aquaculture licence to an
individual, a single corporation or a
co-operative--the Secretary must refuse to
issue such a licence to a partnership or a
consortium.
15 (3B) Despite anything to the contrary in any law,
the Secretary may only issue an access
licence or an aquaculture licence to an
individual who is an Australian resident.".
(3) After section 57(11) of the Fisheries Act 1995
20 insert--
"(12) Despite anything to the contrary in this
section, the Secretary may not renew an
access licence or an aquaculture licence if
the licence is held by more than one
25 person.".
30. Insertion of sections 57A and 57B
After section 57 of the Fisheries Act 1995
insert--
"57A. Transitional provision concerning certain
30 licences held by more than one person
(1) If--
(a) on the date of commencement of
section 30 of the Fisheries (Further
Amendment) Act 2003 an access
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licence or an aquaculture licence is held
by more than one person; and
Victorian Legislation and Parliamentary Documents
(b) by the date the licence is due to expire
one, and one only, of those people has
5 not applied to the Secretary for the
renewal of the licence in accordance
with the regulations--
the licence is, by force of this section,
suspended on the date the licence is due to
10 expire.
(2) Despite anything in this Act to the contrary,
a suspension under sub-section (1) continues
until either--
(a) one, and one only, of those people
15 applies to the Secretary for the renewal
of the licence in accordance with the
regulations and the Secretary renews
the licence; or
(b) the expiry of 12 months from the date
20 the suspension began--
whichever occurs first.
(3) If the suspension of a licence ends under
sub-section (2)(b), the licence is cancelled.
57B. Restriction on the re-issue of cancelled
25 licences
(1) This section applies if a licence is cancelled
under this Act.
(2) The Secretary must not re-issue the licence
unless--
30 (a) within 12 months after the date the
licence was cancelled, the Minister,
acting on the advice of the Secretary,
determines under section 51A that it is
to be publicly sold; and
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(b) the successful party under the resulting
sale process applies for the re-issue of
the licence.".
Victorian Legislation and Parliamentary Documents
31. Licence conditions to be displayed
5 At the end of section 52 of the Fisheries Act 1995
insert--
"(2) In issuing documentary evidence of a licence
(other than a recreational fishery licence) or
a quota allocation entitlement, the Secretary
10 must ensure, to the maximum extent that is
practicable, that there is displayed on, or
attached to, the document the conditions that
apply to the licence or entitlement (including
those imposed directly by this Act and by the
15 regulations).
(3) A failure to comply with sub-section (2) does
not affect the validity of the licence or the
entitlement nor does it absolve any person
from the need to comply with any applicable
20 condition of the licence or entitlement (even
if that condition is not displayed on, or
attached to, the document evidencing the
licence or entitlement).".
32. Removal notice on cessation of aquaculture
25 activities
(1) Insert the following heading to section 60A of the
Fisheries Act 1995--
"Removal notice on cessation of aquaculture
activities";
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(2) For section 60A(1) of the Fisheries Act 1995
substitute--
Victorian Legislation and Parliamentary Documents
"(1) This section applies if--
(a) a person's authorisation to conduct
5 aquaculture activities under an
aquaculture licence or a general permit
ceases; and
(b) the licence or permit related to an area
that is Crown land.".
10 (3) In section 60A(2) of the Fisheries Act 1995, after
"the licence" insert "or permit".
33. Insertion of section 61A
After section 61 of the Fisheries Act 1995
insert--
15 "61A. Validation of direction published on
3 April 2003
(1) The direction given to the Secretary by the
Minister under section 61(1)(c) and
published in the Government Gazette on
20 3 April 2003 is deemed to have been validly
given by the Minister.
(2) Every licence cancelled under that direction
on or before 10 April 2003 is deemed to have
been validly cancelled.".
25 34. Compensation arising if access licence cancelled by
direction under section 61
(1) For section 63(2) of the Fisheries Act 1995
substitute--
"(2) The person who held the licence is entitled to
30 the following, as specified by, and
determined in accordance with, the
regulations--
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(a) compensation for--
(i) the assessed market value of the
Victorian Legislation and Parliamentary Documents
licence; and
(ii) the assessed market value of the
5 losses (if any) that would be
incurred if the fishing boat and
equipment used under the licence
were to be sold; and
(b) compensation for the loss of up to
10 3 years of net income (based on past net
income); and
(c) an amount by way of a solatium of up
to 10% of the compensation assessed
under paragraphs (a) and (b)--
15 less any amounts paid to the holders of
registered financial interests in the licence
under sub-section (2A).
(2A) A person who held a registered financial
interest in the licence at the time it was
20 cancelled is entitled to an amount of
compensation determined in accordance with
the regulations.
(2B) The regulations may require the deduction
from any amount payable under sub-
25 section (2) or (2A) of an amount to recognise
the present value of any of the compensation
that relates to the future.".
(2) For section 63(6) of the Fisheries Act 1995
substitute--
30 "(6) Any dispute in relation to the payment of
compensation under this section is to be
determined in accordance with Part 11.
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(7) For the purposes of sub-section (2)--
(a) the regulations may provide for the
Victorian Legislation and Parliamentary Documents
method by which a market value is to
be assessed; and
5 (b) compensation may be paid up to the
maximum amount permitted by sub-
section (2)(b) even if the licence was
held by the person for less than the
period in respect of which the
10 compensation is being paid.".
35. Minister may restrict quota unit transfers involving
sub-zones
(1) In the Fisheries Act 1995--
(a) in section 64AB(1)(c), for "fishery."
15 substitute "fishery; and";
(b) after section 64AB(1)(c) insert--
"(d) declare that individual quota units in
respect of a sub-zone may only be
transferred to a licence holder holding a
20 licence in respect of the same sub-
zone;";
(2) After section 65A(2) of the Fisheries Act 1995
insert--
'(2A) If the Minister has made an order under
25 section 64AB(1)(d), sub-section (2) is to be
read as if for "for that fishery" there were
substituted "for the relevant sub-zone of that
fishery.'.
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36. Insertion of section 64C
After section 64B of the Fisheries Act 1995
Victorian Legislation and Parliamentary Documents
insert--
"64C. No compensation payable for losses
5 resulting from quota orders
No compensation is payable by the Crown to
any person for any loss or damage that
results from an order made by the Minister
under section 64, 64A or 64AB.".
10 37. Insertion of section 65B
After section 65A of the Fisheries Act 1995
insert--
"65B. Minister may determine that quota units
be publicly sold
15 (1) This section applies if it is proposed--
(a) to create and allocate new quota units
in addition to the quota units that were
created and allocated under an initial
quota order; or
20 (b) to allocate quota units that arise in
excess of any threshold quota limit
specified in a management plan; or
(c) to allocate any quota units that have
been forfeited, or that have otherwise
25 become available.
(2) The Minister may determine that the quota
units are to be publicly sold.
(3) In making a determination, the Minister must
specify the method by which the sale is to
30 take place.
(4) Without limiting sub-section (3), a sale may
occur by auction, tender or ballot.
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(5) Nothing in this section is intended to enable
the sale of a quota unit to a person who is not
the holder of a licence in the relevant
Victorian Legislation and Parliamentary Documents
fishery.".
5 38. Extension of meaning of "permitted amount"
(1) In section 66(2) of the Fisheries Act 1995, after
"in respect of the licence" insert "together with
any other amount of excess or carry over that the
person is permitted to take under a relevant quota
10 order".
(2) Section 66(5) of the Fisheries Act 1995 is
repealed.
39. Fisheries reserves
(1) For section 88(1) of the Fisheries Act 1995
15 substitute--
"(1) The Governor in Council may, by Order in
Council, declare as a fisheries reserve--
(a) any waters that are not reserved under
the National Parks Act 1975; or
20 (b) any Crown land under the Land
Act 1958; or
(c) any land reserved under section 4 of the
Crown Land (Reserves) Act 1978 if
the use of the land as a fisheries reserve
25 will not be detrimental to the purposes
for which the land was reserved under
that section.".
(2) In section 88 of the Fisheries Act 1995--
(a) in sub-sections (2)(a) and (4)(a), for "waters
30 which are" substitute "area which is";
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(b) for sub-section (3)(b) substitute--
"(b) in the case of any Crown land under the
Victorian Legislation and Parliamentary Documents
Land Act 1958, the Minister has
consulted with the Minister responsible
5 for that land under that Act; and
(ba) in the case of any land reserved under
section 4 of the Crown Land
(Reserves) Act 1978, the Minister has
consulted with the Minister responsible
10 for that land under that Act; and".
40. Fisheries Co-Management Council membership
In section 90(3)(b) of the Fisheries Act 1995,
before "2 members" insert "up to".
41. Insertion of section 141
15 After section 140 of the Fisheries Act 1995
insert--
'141. Fisheries Plant and Equipment Fund
(1) There is to be established and kept in the
Treasury an account called the "Fisheries
20 Plant and Equipment Fund".
(2) There is to be paid into the Fund those
amounts that the Secretary determines are
proper in the circumstances--
(a) to enable the purchase of any plant or
25 equipment required for the purposes of
this Act where the use of the plant or
equipment for those purposes will
extend over more than one financial
year; and
30 (b) to enable the operation, maintenance
and repair of that plant or equipment;
and
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(c) to enable the payment of any other
expenses in relation to that plant and
equipment.
Victorian Legislation and Parliamentary Documents
(3) Any money in the Fund that is not
5 immediately required may be invested in any
manner approved by the Treasurer, and any
income derived from an investment must be
paid into the Fund.
(4) Subject to sub-section (3), money may only
10 be paid out of the Fund--
(a) for a purpose listed in sub-section (1);
and
(b) on the written authority of the
Secretary.
15 (5) If an item of plant or equipment purchased
with money from the Fund is sold, the
proceeds of the sale must be paid into the
Fund.
(6) A reference in sub-section (5) to an item of
20 plant or equipment purchased with money
from the Fund includes a reference to any
item--
(a) that was purchased with money from
the Conservation, Forests and Lands
25 Plant and Machinery Fund established
under section 23 of the Conservation,
Forests and Lands Act 1987; and
(b) that was listed in the fixed asset register
of the Department at the time of its
30 sale.
(7) In this section "plant" includes boats and
motor vehicles.'.
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42. Insertion of section 145A
After section 145 of the Fisheries Act 1995
Victorian Legislation and Parliamentary Documents
insert--
"145A. Secretary may supply names to peak
5 bodies
(1) If a levy is collected with respect to a class
of licence for the purposes of funding a peak
body, the Secretary may give the peak
body--
10 (a) details of the name of each person who
holds that class of licence and the name
of any other person whose name
appears on any licence of that class;
and
15 (b) the business address, the business
telephone number, and the business
facsimile number or email address of
each such person.
(2) Despite sub-section (1), the Secretary must
20 not supply any of those details if, in the
opinion of the Secretary, it would not be in
the public interest to do so.
(3) The Secretary may impose conditions in
relation to the supply of any details under
25 this section.
(4) A person must not breach, or aid, abet,
counsel or procure the breaching of, a
condition.
Penalty applying to this sub-section: 200 penalty
30 units or imprisonment for 12 months.".
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43. Clarification of intent of suspension
After section 149(1) of the Fisheries Act 1995
Victorian Legislation and Parliamentary Documents
insert--
"(2) Nothing in sub-section (1) is intended to
5 interfere with the right of the person to hold
the licence--sub-section (1) is merely
intended to ensure that the person cannot
exercise the rights of a licence holder while
the licence is suspended.".
10 44. Levies
(1) For section 151(8A)(c) of the Fisheries Act 1995
substitute--
"(c) the particular recognised peak body has
advised the Minister in writing that at a
15 general meeting of its members held in
accordance with its rules, a resolution
agreeing to the proposed increase in the rate
of levy was passed; and".
(2) For section 151(9) of the Fisheries Act 1995
20 substitute--
"(9) The Minister must ensure that the operation
of this section is reviewed as soon as is
possible after 1 May 2009.".
45. Fisheries notices
25 (1) In section 152 of the Fisheries Act 1995--
(a) in sub-section (1)(f), after "fishery," insert
"species,";
(b) in sub-section (7)(c), for "20 penalty units"
substitute "50 penalty units".
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(2) For section 152(2) of the Fisheries Act 1995
substitute--
Victorian Legislation and Parliamentary Documents
"(2) Despite sub-section (1), the Minister need
not consult with the relevant consultative
5 bodies before making a fisheries notice if, in
the opinion of the Minister, to consult those
bodies would result in a delay that would
significantly reduce the effectiveness of the
notice.
10 (2A) If the Minister makes a fisheries notice
without consulting the relevant consultative
bodies, the Minister must as soon as is
practicable after the making of the notice
provide those bodies with a copy of the
15 notice and a statement of his or her reasons
for not consulting with the bodies before
making the notice.".
46. Repeal of abalone access licence fee cap
Section 159 of the Fisheries Act 1995 is
20 repealed.
47. Insertion of Part 11
After Part 10 of the Fisheries Act 1995 insert--
'PART 11--DETERMINATION OF DISPUTES
Division 1--Preliminary Matters
25 199. Application of this Part
This Part applies to any disputed claim under
section 63.
200. Definitions
In this Part--
30 "claimant" means a person who makes, or
is entitled to make, a claim for
compensation under section 63;
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"Court" means the Supreme Court;
"Tribunal" means the Victorian Civil and
Victorian Legislation and Parliamentary Documents
Administrative Tribunal established by
the Victorian Civil and
5 Administrative Tribunal Act 1998.
Division 2--Application/Referral Process
201. Application or referral of disputed claim
The Secretary or the claimant may--
(a) apply to the Tribunal for the
10 determination of a disputed claim for
compensation in accordance with this
Part; or
(b) refer a disputed claim for compensation
to the Court for determination in
15 accordance with this Part.
202. Jurisdiction
(1) A disputed claim must be determined--
(a) by the Tribunal if the amount in dispute
does not exceed $50 000; or
20 (b) if the amount in dispute exceeds
$50 000, by the Tribunal or the Court at
the option of the claimant or, if the
claimant does not exercise that option
within 30 days after being requested to
25 do so by the Secretary, at the option of
the Secretary; or
(c) by the Court irrespective of the amount
in dispute if the Court is satisfied on the
application of any party that the claim
30 raises questions of unusual difficulty or
of general importance.
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(2) In this section "amount in dispute" means
the amount of the difference between the
amount claimed by the claimant and the
Victorian Legislation and Parliamentary Documents
amount of the final offer made by the
5 Secretary before the application is made to
the Tribunal in respect of the claim or the
matter is referred to the Court under this
Part.
203. Form of notice of referral
10 A notice of referral under section 201 to the
Court must be in the form specified by the
regulations and must be accompanied by
copies of--
(a) the notice of cancellation and the
15 direction under which the licence was
cancelled;
(b) the initial offer of compensation made
by the Secretary (if any);
(c) the claim made by the claimant; and
20 (d) the reply (if any) of the Secretary to the
claim.
204. Service of notice of referral on other
parties
A party who refers a disputed claim to the
25 Court must cause a copy of the notice of
referral under section 201 to be served on the
other parties to the dispute.
205. Withdrawal application
The principal registrar of the Tribunal may
30 grant any application by consent of the
parties for adjournment or withdrawal of any
claim for compensation referred to the
Tribunal.
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Division 3--Compulsory Conference in the Court
206. Compulsory conference
Victorian Legislation and Parliamentary Documents
(1) The Court may order the parties to any
disputed claim referred to it to attend a
5 compulsory conference to be conducted by
the Court or a Master of the Court.
(2) If the Court orders a compulsory conference
to be held in respect of a dispute, it must be
held as soon as is practicable after the date
10 on which the notice of referral was lodged in
respect of the dispute, unless the Court
orders otherwise.
207. Objects of compulsory conference
The objects of the compulsory conference
15 are--
(a) to determine what matters are in dispute
between the parties; and
(b) to identify the questions of law and of
fact that are required to be determined
20 by the Court; and
(c) to provide a forum in which the parties
may discuss their respective reasons for
making or rejecting the disputed claim
and, if possible, settle or resolve the
25 matters in dispute before the dispute is
heard by the Court.
208. Parties may vary offer or claim
Nothing in this Part prevents--
(a) the Secretary in a compulsory
30 conference from increasing the amount
of any offer made to a claimant; or
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(b) the claimant in a compulsory
conference from reducing the amount
of the claim--
Victorian Legislation and Parliamentary Documents
at any time before the settlement or
5 determination of the dispute.
209. Settlement
If the parties to the dispute arrive at an
agreement to settle the disputed claim at any
time before the determination of the claim by
10 the Court, the Court must ratify the
agreement, which then takes effect as if it
were a determination of the Court under this
Part.
Division 4--Determinations
15 210. Determination of claim
(1) On an application or referral of a disputed
claim under this Part, the Tribunal or Court
is to determine the amount of compensation
in accordance with this Act to be paid in
20 respect of the claim and may make any
orders necessary to give effect to that
determination.
(2) An appeal to the Court of Appeal from a
determination or an order made by the Court
25 under this section lies only on a question of
law.
211. Principles to be applied in determining
compensation
In determining the compensation payable,
30 the Tribunal or the Court is not bound by the
exercise of any discretion of the Secretary or
by any opinion or determination of the
Secretary, but must determine the
compensation payable in the particular
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circumstances of the case having regard to
the provisions of this Act.
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212. Costs
(1) In any proceedings under this Part, the
5 Tribunal or the Court (as the case requires)
may award such costs as it thinks proper but
in making an order for costs must, if the
Tribunal or Court considers it appropriate to
do so, take into consideration--
10 (a) the amount of compensation awarded
by the Tribunal or Court as compared
with the amount (if any) offered by the
Secretary; and
(b) the extent to which, in the opinion of
15 the Tribunal or Court, the proceedings
have arisen from, or have been affected
by--
(i) unreasonable conduct on the part
of the claimant or the Secretary; or
20 (ii) the failure of the claimant to give
adequate details of the claim or
supply supporting material when
required to do so; or
(iii) an excessive claim by the
25 claimant; or
(iv) an unduly depressed offer by the
Secretary; and
(c) any other matters which under this Part
are to be taken into account in
30 determining the allocation of costs.
(2) The Court may make an order with respect to
the assessment of costs in the same manner
as it may in respect of any other matter
before the Court.
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(3) All costs payable to the Secretary may be set
off by the Secretary against any
compensation awarded or costs payable to
Victorian Legislation and Parliamentary Documents
the claimant.
5 (4) All costs payable to the claimant may be
recovered by the claimant from the Secretary
in the same manner as the compensation
awarded.
213. Payment of compensation
10 The sum awarded as compensation by the
Tribunal or the Court must be paid within
one month after the sum awarded has been
determined.
214. Supreme Court--limitation of jurisdiction
15 It is the intention of sections 202(1), 209 and
210(2) to alter or vary section 85 of the
Constitution Act 1975.'.
48. Membership and procedure of bodies
In Schedule 1 to the Fisheries Act 1995--
20 (a) for clause 3 substitute--
"3. Remuneration
(1) A member of a body appointed by the Governor
in Council who is not a full-time officer or
employee of the public service is entitled to
25 receive the fees and travelling and other
allowances from time to time fixed by the
Governor in Council.
(2) A member of a body appointed by the Minister
who is not a full-time officer or employee of
30 the public service is entitled to receive the fees
and travelling and other allowances from time
to time fixed by the Minister.";
(b) insert the following heading to clause 4--
"Vacancies, resignation and removal";
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(c) for clause 4(1) substitute--
"(1) A person ceases to be a member of a body--
Victorian Legislation and Parliamentary Documents
(a) at the expiry of his or her term of
appointment (unless that term is renewed
5 in accordance with this Act); or
(b) if he or she resigns by writing delivered
to the Minister; or
(c) if he or she is removed from office under
sub-clause (3) or (4); or
10 (d) if he or she becomes bankrupt; or
(e) if he or she is convicted of an indictable
offence or of an offence which, if
committed in Victoria, would be an
indictable offence; or
15 (f) if he or she fails to attend 3 consecutive
meetings of the body without the
approval of the chairperson of the body,
or in the case of a chairperson, without
the approval of the body.";
20 (d) after clause 4(2) insert--
"(3) The Governor in Council may remove from
office any member of the Fisheries Co-
Management Council.
(4) The Minister may remove from office any
25 member of any other body.".
49. Additional miscellaneous regulation-making powers
In Schedule 3 to the Fisheries Act 1995--
(a) for clause 4.1 substitute--
"4.1 Providing for the registration of boats
30 including--
(a) the transfer and renewal of registration;
(b) the refusal of registration, or the transfer
or renewal of registration;
(c) the cancellation of registration;
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(d) the obtaining of information on the
seaworthiness of boats from other people
or bodies;
Victorian Legislation and Parliamentary Documents
(e) giving recognition to surveys of
5 seaworthiness conducted by appropriate
authorities and to certificates from
appropriate authorities as to the state of a
boat or its current survey status.";
(b) after clause 6.7 insert--
10 "6.8 In relation to searches by authorised officers--
(a) further regulating the conduct of those
searches; and
(b) requiring the supply of additional details
in the records required of those searches.
15 6.9 Requiring the Secretary to report specified
incidents involving authorised officers to the
Ombudsman appointed under the Ombudsman
Act 1973.".
50. Minor amendments
20 In the Fisheries Act 1995--
(a) in section 38(5), after "section 58" insert
", 61(1)(c)";
(b) in section 68A(6), for "and (5)(b)" substitute
", (4A) and (4B)";
25 (c) in section 69(3), for "before of" substitute
"before or";
(d) section 122(1)(d) is repealed.
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Endnotes
ENDNOTES
Victorian Legislation and Parliamentary Documents
By Authority. Government Printer for the State of Victoria.
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