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PARLIAMENT OF VICTORIA
Fisheries (Amendment) Act 2000
Act No.
TABLE OF PROVISIONS
Clause Page
1. Purposes 1
2. Commencement 2
3. Amendment to definitions 2
4. Exemption if authorised under general permit 3
5. Special provision concerning general permits 3
6. Variation to class of licence conditions 4
7. Notice given to holders of financial interests 5
8. Insertion of section 60A 5
60A. Removal notice on cancellation or expiry of aquaculture
licence 5
9. Substitution of sections 64 and 65 7
64. Initial quota order 7
64A. Further quota order 8
64B. General quota order provisions 9
64C. Saving provision--existing quota orders 9
65. Quota notices 10
65A. Transfer of individual quota units 10
10. Offences in relation to abalone etc. 11
11. Insertion of sections 108A and 108B 12
108A. Retention notices 13
108B. Evidentiary provisions relating to retention notices 14
12. Insertion of section 110A 14
110A. Authorised officers do not commit offences in certain
circumstances 15
13. Prohibition to possess certain fish or equipment or engage in
certain activities 15
14. Insertion of sections 130A and 130B 16
130A. Further prohibition court order 16
130B. Prohibition to be in or on specified waters 17
15. Reviewable decision to refuse approval to transfer quota units 18
16. Conditions of licence to be made available for inspection 19
17. Amendment to secrecy provision 19
18. Levy 19
19. Insertion of sections 151B and 151C 19
151B. Recreational Fishing Licence Trust Account 19
151C. Fisheries Revenue Allocation Committee 21
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Clause Page
20. Amendment to Schedule 1 22
21. Regulation of vessel monitoring systems 22
22. Repeal of saving provision 22
ENDNOTES 23
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541057B.I1-6/10/2000 BILL LA CIRCULATION 6/10/2000
PARLIAMENT OF VICTORIA
Initiated in Assembly 4 October 2000
A BILL
to amend the Fisheries Act 1995 and for other purposes.
Fisheries (Amendment) Act 2000
The Parliament of Victoria enacts as follows:
1. Purposes
The main purposes of this Act are--
(a) to provide for the variation of classes of
fishery licences; and
5 (b) to provide for the permanent transfer of
quota units; and
(c) to enable the Secretary to issue removal and
retention notices; and
(d) to enable a court to prohibit offenders from
10 being in or on certain Victorian waters; and
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(e) to establish the Recreational Fishing Licence
Trust Account and the Fisheries Revenue
Allocation Committee; and
(f) to make other amendments to the Fisheries
5 Act 1995.
2. Commencement
(1) This Act (other than sections 9 and 22) comes into
operation on the day after the day on which it
receives the Royal Assent.
10 (2) Sections 9 and 22 come into operation on a day or
days to be proclaimed.
(3) If section 9 does not come into operation before
1 April 2002, it comes into operation on that day.
(4) If section 22 does not come into operation before
15 1 April 2003, it comes into operation on that day.
3. Amendment to definitions
See: In section 4(1) of the Fisheries Act 1995--
Act No.
92/1995.
(a) in the definition of "quota order", after
Reprint No. 1
"section 64" insert "or section 64A";
as at
1 April 1998
20 (b) insert--
and
amending
Act Nos ' "quota fishery" means a fishery, or a
46/1998 and
specified zone or zones of a fishery,
76/1998.
LawToday: that is the subject of a declaration under
www.dms.
section 64(1)(a);
dpc.vic.
gov.au
25 "vessel monitoring system" means a
navigational measuring system that is
suitable for installation on a boat and
that is capable of--
(a) determining the location and
30 activities of the boat; and
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(b) transmitting data in relation to that
location and those activities to the
Secretary or the Secretary's
delegate via a satellite
5 communication system;'.
4. Exemption if authorised under general permit
After section 42(2) of the Fisheries Act 1995
insert--
"(2A) A person may do any of the things referred
10 to in sub-section (1) for commercial
purposes (other than for sale) if he or she--
(a) is acting on behalf of the holder of a
general permit who is authorised to do
that thing; and
15 (b) is authorised by that permit to do that
thing; and
(c) is not prohibited by this Act from so
acting.".
5. Special provision concerning general permits
20 After section 49(2)(f) of the Fisheries Act 1995
insert--
"; or
(g) for commercial purposes (other than for
sale)--
25 (i) to use, form or create a habitat (whether
natural, artificial or partly natural or
artificial) for hatching, rearing,
breeding, displaying or growing fish or
fishing bait;
30 (ii) to hatch, rear, breed, display or grow
fish or fishing bait.".
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6. Variation to class of licence conditions
(1) After section 54(1)(b) of the Fisheries Act 1995
insert--
"; or
5 (c) vary a class of fishery licence; or
(d) vary or revoke a condition imposed by the
Secretary or impose a new condition on a
class of fishery licence.".
(2) After section 54(1) of the Fisheries Act 1995
10 insert--
"(1A) The Secretary may only exercise a power
conferred by sub-section (1)(c) or (d) to give
effect to a management plan declared under
section 28, or to any change to such a plan.".
15 (3) In section 54(3) of Fisheries Act 1995, for
"taking action under sub-section (2)(a)"
substitute "acting on the Secretary's own
initiative in respect of sub-section (1)(a) or (b)".
(4) After section 54(3) of the Fisheries Act 1995
20 insert--
"(3A) Before taking action under sub-section (1)(c)
or (d), the Secretary must--
(a) give the consultative body and the
relevant recognised peak body written
25 notice of the action that the Secretary
proposes to take and must consider any
written submissions made by the
consultative body or the relevant
recognised peak body about the
30 intended action within 28 days after the
giving of the notice; and
(b) publish notice of the action that the
Secretary proposes to take in a
newspaper circulating generally in
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Victoria within 5 days after giving the
consultative body and the relevant
recognised peak body written notice
under paragraph (a).".
5 (5) In section 54(4) of the Fisheries Act 1995, for
"Sub-section (3) does" substitute "Sub-sections
(3) and (3A) do".
7. Notice given to holders of financial interests
(1) For section 59(3) of the Fisheries Act 1995
10 substitute--
"(3) The Secretary must notify each holder of a
registered financial interest of an
application--
(a) to transfer the licence; or
15 (b) to transfer individual quota units from
the licence permanently--
within 21 days after receiving the
application.".
(2) In section 59(5) of the Fisheries Act 1995, after
20 "transfer the licence" insert "or permanently
transfer individual quota units, as the case may
be".
8. Insertion of section 60A
After section 60 of the Fisheries Act 1995
25 insert--
"60A. Removal notice on cancellation or expiry of
aquaculture licence
(1) This section applies if--
(a) a person's aquaculture licence has
30 expired or is cancelled; and
(b) the aquaculture licence related to an
area that is Crown land.
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(2) The Secretary may, by notice in writing
served on the person, require the person
within any reasonable time specified in the
notice to remove any commercial
5 aquaculture equipment, fish, fishing bait or
aquatic flora specified in the notice from the
area to which the licence applied.
(3) A person who is served with a notice under
sub-section (2) must comply with the
10 requirements of the notice.
Penalty: 100 penalty units or 6 months
imprisonment or both.
(4) If a person has failed to comply with the
requirements of the notice, the Secretary
15 may at any reasonable time having regard to
all the circumstances--
(a) enter upon any land or protected waters
or any other premises other than a
dwelling house for the purpose of
20 searching for, or seizing and removing,
any commercial aquaculture equipment,
fish, fishing bait or aquatic flora
specified in the notice; and
(b) seize and remove any commercial
25 aquaculture equipment, fish, fishing
bait or aquatic flora specified in the
notice.
(5) Any commercial aquaculture equipment,
fish, fishing bait or aquatic flora seized under
30 sub-section (3) may be disposed of as the
Secretary directs.
(6) All reasonable costs and expenses incurred
by the Secretary as a result of the failure of
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the person to comply with the notice may be
recovered from that person by the Secretary.
(7) If the whole or part of an amount payable
under sub-section (6) has not been paid to
5 the Secretary as required or the proceeds
from the sale of the seized things do not
meet the Secretary's costs and expenses, the
Secretary may recover the amount unpaid as
a debt in a court of competent jurisdiction.
10 (8) After the payment of the Secretary's costs
and expenses, any proceeds remaining from
the sale of the seized things must be paid to
the person whose property they were at the
time they were seized.".
15 9. Substitution of sections 64 and 65
For sections 64 and 65 of the Fisheries Act 1995
substitute--
"64. Initial quota order
(1) The Minister may, by order published in the
20 Government Gazette--
(a) declare that the whole, or a specified
zone or zones, of a fishery is to be
managed by the allocation of quotas;
(b) determine the method for setting the
25 number of individual quota units for the
quota fishery;
(c) determine the method for allocating
individual quotas to each access licence
issued in respect of the quota fishery;
30 (d) declare that individual quota units in
the quota fishery may be transferred--
(i) permanently; or
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(ii) for a quota period only;
(e) set the minimum and maximum number
of individual quota units that may be
acquired or held by each licence holder;
5 (f) determine the circumstances, if any, in
which the individual quotas can be
exceeded or carried over (other than by
transfer).
(2) The Minister may revoke or amend an order
10 at any time by order published in the
Government Gazette.
(3) However, if the Minister makes a declaration
under sub-section (1)(d)(i), the Minister may
only amend that declaration or anything
15 under sub-section (1)(a), (b) or (c) if the
amendment is required--
(a) to give effect to the management plan
for the quota fishery declared under
section 28, or to any change to that
20 plan; or
(b) to correct--
(i) a clerical mistake; or
(ii) an error arising from an accidental
slip or omission; or
25 (iii) a miscalculation of figures.
(4) If the Minister makes a declaration under
sub-section (1)(d)(i), the holders of access
licences may also transfer individual quota
units for a quota period only.
30 64A. Further quota order
(1) The Minister may, by further order published
in the Government Gazette--
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(a) set the total allowable catch (by
number, volume, weight or value) for a
specified period for a quota fishery;
(b) determine the quantity of fish (by
5 number, volume, weight or value)
comprising an individual quota unit in a
quota fishery in a specified period.
(2) The Minister may revoke or amend an order
at any time by an order published in the
10 Government Gazette.
(3) Without intending to limit the generality of
sub-section (2), the Minister may reduce the
total allowable catch, or reduce the quantity
of fish comprising an individual quota unit
15 before the end of the period to which the
total allowable catch or unit applies.
64B. General quota order provisions
(1) The Minister must not make, revoke or
amend an order under section 64 or 64A
20 unless he or she has consulted with the
commercial peak body and any other
relevant consultative bodies and has
considered any comments made by those
bodies concerning the proposed
25 recommendation.
(2) In referring to a quantity of individual quota
units, an order under section 64 or 64A may
refer to fractions of an individual quota unit.
(3) An order has effect from the date it is
30 published in the Government Gazette, or
from any later date specified in the order as
the date it is to have effect from.
64C. Saving provision--existing quota orders
Any quota order or quota notice in existence
35 immediately before section 9 of the
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Fisheries (Amendment) Act 2000 came
into operation is to continue in operation
until the end of the quota period established
by the order as if section 9 had not come into
5 operation.
65. Quota notices
(1) The Secretary must give the holder of an
access licence in a quota fishery a quota
notice setting out details of the individual
10 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
individual quota in respect of a quota fishery
15 for which individual quota units may only be
temporarily transferred, 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
20 after the quota order is published.
(3) If the Secretary grants an application for a
transfer under section 65A, the Secretary
must issue new quota notices for each access
licence involved in the transfer or
25 acquisition.
(4) 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.
30 (5) If an individual quota no longer applies to a
licence in a quota period, the quota notice
required by sub-section (3) or (4) must state
that fact.
65A. Transfer of individual quota units
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(1) A transfer of individual quota units may only
be made with the approval of the Secretary.
(2) The holder of an access licence in a quota
fishery may apply to the Secretary for
5 approval to transfer a fraction of, or 1 or
more, individual quota units to the holder of
any other access licence for that fishery.
(3) An application for the approval of a transfer
must--
10 (a) be made in the manner and form
required by the Secretary; and
(b) if applicable, be accompanied by the
relevant quota notice or notices.
(4) The Secretary may grant an application if it
15 is consistent with every quota order and
management plan that applies to the quota
fishery.
(5) The Secretary must refuse to grant an
application that is inconsistent with any
20 relevant provision of this Act.".
10. Offences in relation to abalone etc.
(1) For the penalty at the foot of section 68A(3) of the
Fisheries Act 1995 substitute--
"Penalty: 20 penalty units.".
25 (2) For section 68A(5) of the Fisheries Act 1995,
substitute--
"(4A) A person who takes or possesses--
(a) more than the catch limit for abalone;
but
30 (b) not more than twice that catch limit--
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is guilty of an offence.
Penalty: 20 penalty units.
(4B) A person who takes or possesses more than
twice the catch limit for abalone is guilty of
5 an offence.
Penalty: First offence--50 penalty units or
imprisonment for 3 months or
both.
Subsequent offence--100 penalty
10 units or imprisonment for
6 months or both.
(4C) It is a defence to a charge under sub-section
(2)(b), (3), (4A) or (4B) if the person
charged can prove that the fish were taken in
15 accordance with this Act.
(5) A person must not use commercial abalone
equipment to take abalone that is less than
the minimum size, or that is more than the
maximum size, specified by the regulations
20 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.".
(3) In section 68A(7) of the Fisheries Act 1995, after
"section" (where secondly occurring) insert
"(other than an offence in respect of which an
30 infringement notice has been issued)".
11. Insertion of sections 108A and 108B
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Act No.
After section 108 of the Fisheries Act 1995
insert--
"108A. Retention notices
(1) If an authorised officer or a member of the
5 police force believes on reasonable grounds
that any thing has been taken or used in
contravention of this Act or a corresponding
law of another State or a Territory of the
Commonwealth, the officer or member may
10 issue the person holding or using the thing
with a notice requiring the person to keep the
thing in his or her possession and not to sell
or dispose of the thing.
(2) A notice under sub-section (1)--
15 (a) must be in writing; and
(b) must specify the thing to which the
notice relates (including in the case of
fish, the species and quantity); and
(c) has effect for the period specified in the
20 notice (which must not be more than
90 days from the issue of the notice);
and
(d) may be cancelled by the person who
issued the notice; and
25 (e) is subject to any terms and conditions
specified in the notice.
(3) If proceedings are commenced within the
period specified in the notice against any
person in relation to the thing to which the
30 notice relates, the Secretary may extend the
period for which a notice has effect under
sub-section (2).
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(4) If the Secretary extends the period for which
a notice has effect, the Secretary must,
before the expiry of the original extension--
(a) notify the person to whom the notice is
5 issued of the extension; and
(b) specify in the notice the period for
which the extension is to have effect.
(5) A person to whom a notice has been issued
must comply with the notice.
10 Penalty: 100 penalty units or 6 months
imprisonment or both.
108B. Evidentiary provisions relating to retention
notices
(1) In any proceedings under section 108A,
15 evidence that a thing, specified in a notice
under that section as being in the possession
of a particular person or as being used by a
particular person, is no longer in the
possession of that person is evidence, and, in
20 the absence of evidence to the contrary, is
proof, that the person has not complied with
the notice.
(2) In any proceedings under this Act, the fact
that a thing is specified in a notice under
25 section 108A as being in the possession of a
particular person or as being used by a
particular person is evidence, and, in the
absence of evidence to the contrary, is proof,
that the thing was in the possession of that
30 person.".
12. Insertion of section 110A
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Act No.
After section 110 of the Fisheries Act 1995
insert--
"110A. Authorised officers do not commit offences
in certain circumstances
5 (1) An act done by--
(a) an authorised officer; or
(b) a member of the police force--
which, but for this sub-section, would
constitute an offence against section 36, 37,
10 40, 42, 44, 67, 68A, 76, 111, 114 or 116 or
against the regulations, does not have that
consequence if the act is done under written
instructions given in relation to a particular
case by the Secretary.
15 (2) The Secretary must not give instructions to
an authorised officer under sub-section (1)
unless the Secretary is satisfied that the
authorised officer has the appropriate
training and experience to carry out the act
20 in respect of which the instructions are
given.
(3) Despite anything to the contrary in any Act,
the Secretary may not delegate any power
conferred or duty imposed by this section.".
25 13. Prohibition to possess certain fish or equipment or
engage in certain activities
For section 130(1)(d) of the Fisheries Act 1995
substitute--
"(d) being in possession of specified fishing
30 equipment or fish; or
(e) engaging in any activity authorised by a
fishery licence unless the person has
installed a vessel monitoring system and
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complies with the prescribed conditions on
the use of the system.".
14. Insertion of sections 130A and 130B
After section 130 of the Fisheries Act 1995
5 insert--
"130A. Further prohibition court order
(1) This section applies if a person has been
prohibited under a law of another State or
Territory or the Commonwealth from
10 engaging in specified fishing activity or
being in the possession of specified fish or
fishing equipment.
(2) A court may, on the application of the
Secretary, by order prohibit the person from
15 engaging in the specified fishing activity or
being in the possession of the specified fish
or fishing equipment.
(3) A court must not make an order under sub-
section (2) unless--
20 (a) the application is accompanied by
information that justifies the making of
the order; and
(b) the court is satisfied that the person is
likely to engage in the specified fishing
25 activity or be in the possession of the
specified fish or fishing equipment in
Victoria.
(4) An order--
(a) may apply generally or at specified
30 times or in specified circumstances;
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(b) has effect for such a period as is
specified in the order or, if no period is
specified, until the order is rescinded;
(c) may be rescinded or varied at any time.
5 (5) A person must comply with an order under
this section.
Penalty: 200 penalty units or imprisonment
for 12 months or both.
130B. Prohibition to be in or on specified waters
10 (1) This section applies if--
(a) a court convicts a person of an offence
against this Act that is punishable by
imprisonment; and
(b) the person has been previously
15 convicted, on 2 or more separate
occasions, of an offence against this
Act that was punishable by
imprisonment.
(2) In addition to any other penalty the court
20 may impose, the court may, on the
application of the Secretary, by order
prohibit the person from being in or on
specified Victorian waters without a lawful
purpose.
25 (3) A court must not make an order under sub-
section (2) unless--
(a) the application is accompanied by
information that justifies the making of
the order; and
30 (b) the court is satisfied that the person is
likely to commit further offences in or
on the specified waters.
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(4) An order--
(a) may apply generally or at specified
times or in specified circumstances;
(b) has effect for a specified period of no
5 more than 10 years or, if no period is
specified, for no more than 10 years;
(c) may be rescinded or varied at any time.
(5) In specifying the waters to which an order
applies, the court must, to the maximum
10 extent that is practicable having regard to the
purpose of the order, limit the specification
of the waters as much as possible.
(6) A person must comply with an order.
Penalty: 200 penalty units or imprisonment
15 for 12 months or both.
(7) In a prosecution for an offence against sub-
section (6), it is not necessary for the
prosecutor to prove that the person charged
was on or in the specified waters without a
20 lawful purpose--it is sufficient to prove that
the person was in or on those waters on the
relevant date.
(8) It is a defence to a charge under sub-section
(6) if the person charged gives, in the
25 opinion of the court, a satisfactory account as
to why he or she was on or in the specified
waters.".
15. Reviewable decision to refuse approval to transfer
quota units
30 In section 137 of the Fisheries Act 1995, after
paragraph (h) insert--
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"(ha) to refuse approval of a transfer of individual
quota units under section 65A;".
16. Conditions of licence to be made available for
inspection
5 In section 145 of the Fisheries Act 1995, after
"quota order" insert ", conditions imposed by the
Secretary under section 52 on a class of fishery
licence".
17. Amendment to secrecy provision
10 In section 146(1) of the Fisheries Act 1995, after
paragraph (e) insert--
"(ea) a member of the Fisheries Revenue
Allocation Committee;".
18. Levy
15 In section 151 of the Fisheries Act 1995--
(a) in sub-section (1), for "the prescribed rate of
levy in respect of that prescribed class"
substitute "prescribed levies at prescribed
rates";
20 (b) in sub-section (2), for "The prescribed rate"
substitute "A prescribed rate";
(c) in sub-sections (3) and (6), for "the levy"
substitute "a levy";
(d) in sub-section (4), for "The levy" substitute
25 "A levy".
19. Insertion of sections 151B and 151C
After section 151A of the Fisheries Act 1995
insert--
"151B. Recreational Fishing Licence Trust
30 Account
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(1) The Minister is to establish a trust account to
be called the Recreational Fishing Licence
Trust Account.
(2) Into the Account must be paid--
5 (a) the levies and application fees received
in respect of recreational fishing
licences under this Act;
(b) income from the investment of the
Trust Account;
10 (c) all other money authorised to be paid to
the Trust Account by the Minister.
(3) The following may be paid out of the
Account--
(a) amounts determined by the Minister for
15 the purpose of improving recreational
fishing;
(b) the costs and expenses incurred in the
administration of recreational fishing
licences and the Fisheries Revenue
20 Allocation Committee established
under section 151C.
(4) The Minister must cause a report on how
amounts paid into the Account were
disbursed--
25 (a) to be prepared by 1 October each year;
and
(b) to be laid before each House of
Parliament on or before the 7th sitting
day of that House after the report has
30 been prepared.
(5) The Minister may invest money standing to
the credit of the Account in any manner in
which trust funds may be invested under the
Trustee Act 1958.
20
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Fisheries (Amendment) Act 2000
s. 19
Act No.
151C. Fisheries Revenue Allocation Committee
(1) There is established a Committee called the
Fisheries Revenue Allocation Committee.
(2) The function of the Committee is to provide
5 any advice requested by the Minister on the
priorities for the disbursement of funds from
the Recreational Fishing Licence Trust
Account.
(3) The Committee consists of the following
10 6 members appointed by the Minister--
(a) 2 members of the Fisheries Co-
Management Council or of a fishery
committee with knowledge of, and
experience in, recreational fishing
15 nominated by the Fisheries Co-
Management Council;
(b) 2 people nominated by the Secretary;
(c) 2 people nominated by the recognised
peak body for recreational fishing.
20 (4) The Minister must appoint one of the
members to be the chairperson of the
Committee.
(5) Schedule 1, other than clause 9, applies to
the membership and procedure of the
25 Committee.
(6) The 2 members of the Committee nominated
by the Fisheries Co-Management Council
may report the proceedings of the Committee
to the Fisheries Co-Management Council.".
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Fisheries (Amendment) Act 2000
s. 20
Act No.
20. Amendment to Schedule 1
In clause 1 in Schedule 1 to the Fisheries Act
1995, in the definition of "body", after
paragraph (b) insert--
5 "; or
(c) the Fisheries Revenue Allocation
Committee.".
21. Regulation of vessel monitoring systems
In Schedule 3 to the Fisheries Act 1995, after
10 clause 4.10 insert--
"4.11 Requiring the installation and maintenance
of vessel monitoring systems on boats and
regulating the use of vessel monitoring
systems.".
15 22. Repeal of saving provision
Section 64C of the Fisheries Act 1995 is
repealed.
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Fisheries (Amendment) Act 2000
Endnotes
Act No.
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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