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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Fisheries (Abalone) Act 2005
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purpose 1
2. Commencement 2
PART 2--ABALONE QUOTA 3
3. Amendment of section 4--Definitions 3
4. Amendment of section 10--Crown property 4
5. New section 59A inserted 4
59A. Registration of financial interests 4
6. Consequential amendment of section 64C 5
7. New Division 3A inserted in Part 4 6
Division 3A--Abalone Quota 6
66B. Existing quota orders 6
66C. Initial abalone quota order 6
66D. Further abalone quota order 7
66E. Sub-zone abalone orders 8
66F. General abalone quota order provisions 9
66G. Abalone Fishery Access Licence specification 9
66H. Abalone quota unit holding statement 10
66I. Entitlement of holder of an individual abalone quota
unit 10
66J. Notification by holder of an individual abalone quota
unit 10
66K. Transfer of individual abalone quota units 11
66L. Minister may determine that quota units be publicly
sold 12
66M. Offences in relation to individual abalone quota by
holders of Abalone Fishery Access Licences 13
66N. Offences in relation to abalone sub-zones 15
66O. Requirement on holder of an Abalone Fishery Access
Licence to hold minimum number of individual
blacklip abalone quota units 16
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Clause Page
66P. Additional penalty on holder of an individual abalone
quota unit in relation to an abalone offence 17
66Q. Penalty for failure to pay royalty or levy 17
66R. Forfeiture of individual abalone quota unit 18
8. Amendment of section 137--Reviewable decisions 19
9. Amendment of section 150--Royalties 19
10. Amendment of section 151--Levy 20
PART 3--OTHER AMENDMENTS 21
11. Amendment of section 51 21
12. Amendment of section 57 21
13. New section 57C inserted 21
57C. Transitional provision concerning certain licences not
held by one person 21
ENDNOTES 23
ii
551255B.I1-3/5/2005 BILL LA INTRODUCTION 3/5/2005
PARLIAMENT OF VICTORIA
A BILL
to amend the Fisheries Act 1995 and for other purposes.
Fisheries (Abalone) Act 2005
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purpose
The purpose of this Act is to amend the Fisheries
Act 1995 to--
(a) implement a new system in respect of the
5
abalone fishery which provides for the
separation of individual abalone quota units
from Abalone Fishery Access Licences;
1
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Fisheries (Abalone) Act 2005
Act No.
Part 1--Preliminary
s. 2
(b) restrict the persons who can hold a Fish
Receiver's Licence to an individual, a single
corporation or a co-operative.
2. Commencement
(1) This section and sections 1 and 11 come into
5
operation on the day on which this Act receives
the Royal Assent.
(2) The remaining provisions of this Act come into
operation on a day or days to be proclaimed.
(3) If a provision referred to in sub-section (2) does
10
not come into operation before 1 April 2006, it
comes into operation on that day.
__________________
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Act No.
Part 2--Abalone Quota
s. 3
PART 2--ABALONE QUOTA
3. Amendment of section 4--Definitions
See:
(1) In section 4(1) of the Fisheries Act 1995 insert Act No.
the following definitions-- 92/1995.
Reprint No. 4
' "blacklip abalone", in relation to abalone quota
5 as at
31 December
management, catch and size limits and 2004
closed seasons, means-- and
amending
(a) all species of abalone other than Act Nos
16/2004 (as
greenlip abalone; and amended by
No. 69/2004),
(b) all other forms, races and hybrids of
10 69/2004 and
abalone; 108/2004.
LawToday:
www.dms.
"greenlip abalone", in relation to abalone quota dpc.vic.
management, catch and size limits and gov.au
closed seasons, means abalone of the species
Haliotis laevigata;'.
15
(2) In section 4(1) of the Fisheries Act 1995--
(a) in the definition of "individual quota unit"
for "section 64(1)(c)" substitute "section
64A(1)(b) or 66D(1)(b)";
(b) in the definition of "quota fishery" after
20
"section 64(1)(a)" insert "or 66C(1)(a)";
(c) in the definition of "quota order" for "or
section 64A" substitute ", 64A, 66C or
66D".
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Act No.
Part 2--Abalone Quota
s. 4
4. Amendment of section 10--Crown property
After section 10(2)(a) of the Fisheries Act 1995
insert--
"(aa) to the holder of the abalone quota unit when
taken from Victorian waters in accordance
5
with an Abalone Fishery Access Licence by
the holder of the Abalone Fishery Access
Licence under an individual abalone quota
unit;".
5. New section 59A inserted
10
After section 59 of the Fisheries Act 1995
insert--
"59A. Registration of financial interests
(1) This section applies if a person who is not
the holder of a particular individual abalone
15
quota unit has a financial interest in that
individual abalone quota unit.
(2) If immediately before the commencement of
section 5 of the Fisheries (Abalone) Act
2005 a person is the holder of a registered
20
financial interest in an Abalone Fishery
Access Licence, the person is deemed to
have a registered financial interest under this
section in--
(a) the individual blacklip abalone quota
25
units; and
(b) any individual greenlip abalone quota
unit--
initially allocated to the holder of that
Abalone Fishery Access Licence by the
30
initial quota order.
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(3) The person to whom this section applies, and
the holder of the individual blacklip abalone
quota units or the holder of the individual
greenlip abalone quota units, may register
details of the financial interest with the
5
Secretary in the form approved by the
Secretary.
(4) The Secretary must notify each holder of a
registered financial interest of an application
to transfer the individual blacklip abalone
10
quota units or the individual greenlip abalone
quota units within 21 days after receiving the
application.
(5) Each holder of a registered financial interest
who receives the notice must, within 21 days
15
of receiving the notice, advise the Secretary
in writing of his or her approval or
disapproval of the proposed transfer.
(6) If all the holders of registered financial
interests in the individual blacklip abalone
20
quota units or the individual greenlip abalone
quota units notified under sub-section (4) do
not approve the proposed transfer, the
Secretary must not transfer the individual
blacklip abalone quota units or the individual
25
greenlip abalone quota units.
(7) If the holder of a registered financial interest
notified under sub-section (4) does not
comply with sub-section (5), the holder is
deemed to have approved of the proposed
30
transfer.".
6. Consequential amendment of section 64C
In section 64C of the Fisheries Act 1995 for "or
64AB" substitute ", 64AB, 66C, 66D or 66E".
5
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7. New Division 3A inserted in Part 4
After section 66A of the Fisheries Act 1995
insert--
'Division 3A--Abalone Quota
66B. Existing quota orders
5
Any quota order or quota notice in respect of
the abalone fishery in existence immediately
before the commencement of section 7 of the
Fisheries (Abalone) Act 2005 continues in
operation until the beginning of the quota
10
period established by the initial abalone
quota order made under section 66C.
66C. Initial abalone quota order
(1) The Minister may, by order published in the
Government Gazette--
15
(a) declare that the whole, or a specified
zone or zones, of the abalone fishery is
to be managed by the allocation of
quotas;
(b) determine the method for setting the
20
number of individual quota units for the
quota fishery;
(c) set the number of individual blacklip
abalone quota units and individual
greenlip abalone quota units to be
25
initially allocated for each Abalone
Fishery Access Licence held by the
holder of an Abalone Fishery Access
Licence in respect of the quota fishery;
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(d) set the minimum number of individual
blacklip abalone quota units that must
be held in respect of each Abalone
Fishery Access Licence held by the
holder of an Abalone Fishery Access
5
Licence;
(e) determine the circumstances, if any, in
which the individual quotas can be
exceeded or carried over.
(2) The Minister may revoke or amend an order
10
at any time by order published in the
Government Gazette.
(3) The Minister may only amend an order if the
amendment is required--
(a) to give effect to the management plan
15
for the abalone quota fishery declared
under section 28, or to any change to
that plan; or
(b) to correct--
(i) a clerical mistake; or
20
(ii) an error arising from an accidental
slip or omission; or
(iii) a miscalculation of figures.
66D. Further abalone quota order
(1) The Minister may, by further order published
25
in the Government Gazette--
(a) set the total allowable catch for blacklip
abalone and greenlip abalone (by
number, volume, weight or value) for a
specified period for the abalone quota
30
fishery;
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(b) determine the quantity of fish (by
number, volume, weight or value)
comprising an individual blacklip
abalone quota unit and an individual
greenlip abalone quota unit in the
5
abalone quota fishery in a specified
period.
(2) The Minister may revoke or amend an order
at any time by an order published in the
Government Gazette.
10
(3) Without limiting the generality of sub-
section (2), the Minister may reduce the total
allowable catch, or reduce the quantity of
fish comprising an individual abalone quota
unit before the end of the period to which the
15
total allowable catch or individual abalone
quota unit applies.
66E. Sub-zone abalone orders
(1) The Minister may, by further order published
in the Government Gazette--
20
(a) declare that the abalone quota fishery
includes a sub-zone; and
(b) set the portion of the total allowable
catch that applies in respect of a
specified sub-zone; and
25
(c) determine the method for allocating
that portion of the total allowable catch.
(2) The Minister may revoke or amend an order
under sub-section (1) at any time by an order
published in the Government Gazette.
30
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(3) The Secretary must give the holder of an
Abalone Fishery Access Licence in the
abalone quota fishery a sub-zone notice
setting out details of the allocation of the
portion of the total allowable catch in respect
5
of the specified sub-zone that is applicable to
the holder of the Abalone Fishery Access
Licence as soon as is practicable after a sub-
zone order under this section is published.
66F. General abalone quota order provisions
10
(1) The Minister must not make, revoke or
amend an order under section 66C, 66D
or 66E unless he or she has consulted with
the commercial peak body and any other
relevant consultative bodies and has
15
considered any comments made by those
bodies concerning the proposed making,
revoking or amending of the order.
(2) An order has effect from the date it is
published in the Government Gazette, or
20
from any later date specified in the order as
the date from which it is to have effect.
66G. Abalone Fishery Access Licence
specification
The Secretary must specify on each Abalone
25
Fishery Access Licence details of the
individual abalone quota units in respect of
which the holder of the Abalone Fishery
Access Licence is entitled to take abalone--
(a) when the Abalone Fishery Access
30
Licence is renewed or transferred;
(b) after there is a change in the number of
the individual abalone quota units in
respect of which the holder of the
Abalone Fishery Access Licence is
35
entitled to take abalone.
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66H. Abalone quota unit holding statement
(1) The Secretary must issue an abalone quota
unit holding statement in respect of the
period specified in the further abalone quota
order containing the prescribed information
5
to a holder of an individual abalone quota
unit--
(a) after the payment of any royalty and
levy payable in respect of the individual
abalone quota unit; and
10
(b) after there is a change in the number of
the individual abalone quota units held
by that holder.
(2) A holder of an individual abalone quota unit
may obtain a copy of the relevant abalone
15
quota unit holding statement from the
Secretary upon application to the Secretary
and payment of the prescribed fee.
66I. Entitlement of holder of an individual
abalone quota unit
20
The holder of an individual abalone quota
unit is not entitled to take or be in possession
of a commercial quantity of abalone unless
that person is otherwise authorised under this
Act to take or be in possession of a
25
commercial quantity of abalone.
66J. Notification by holder of an individual
abalone quota unit
(1) The holder of an individual abalone quota
unit may in accordance with the prescribed
30
process notify the Secretary of the holder of
an Abalone Fishery Access Licence who is
nominated to take abalone under the
individual abalone quota unit.
10
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(2) A notification under this section may
nominate a different holder of an Abalone
Fishery Access Licence for each individual
abalone quota unit.
(3) A notification under this section must
5
contain the prescribed matters.
66K. Transfer of individual abalone quota units
(1) A transfer of individual abalone quota units
may only be made with the approval of the
Secretary.
10
(2) The holder of an individual abalone quota
unit may apply to the Secretary for approval
to transfer 1 or more individual abalone
quota units to any other person.
(3) A fraction of an individual abalone quota
15
unit cannot be transferred.
(4) The Secretary must not grant an application
for approval to transfer any individual
abalone quota unit to a person unless the
Secretary is satisfied that--
20
(a) the person is a fit and proper person to
hold individual abalone quota units;
and
(b) the person is an individual, a single
corporation or a co-operative and is not
25
a partnership or a consortium; and
(c) the person satisfies any relevant
eligibility criteria specified in the
regulations; and
(d) the holders of any financial interests in
30
the individual abalone quota unit
consent to the transfer of the individual
abalone quota unit.
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(5) An application for the approval of a transfer
must be made in the manner and form
required by the Secretary.
(6) The Secretary may grant an application if it
is consistent with every quota order and
5
management plan that applies to the abalone
quota fishery.
(7) The Secretary must refuse to grant an
application that is inconsistent with any
relevant provision of this Act.
10
(8) Without limiting sub-section (7), the
Secretary must refuse to grant an application
for the approval of a transfer of an individual
greenlip abalone quota unit if the total
allowable catch for greenlip abalone is set at
15
zero.
(9) Sub-section (8) does not apply if the
application for the approval of a transfer of
an individual greenlip abalone quota unit is
made with an application for the transfer of
20
an Abalone Fishery Access Licence for the
zone in respect of which the individual
abalone quota unit applies.
66L. Minister may determine that quota units
be publicly sold
25
(1) This section applies if it is proposed--
(a) to create new individual abalone quota
units in addition to the individual
abalone quota units that were allocated
under an initial quota order in excess of
30
any threshold quota limit specified in a
management plan; or
(b) to allocate individual abalone quota
units that arise in excess of any
threshold quota limit specified in a
35
management plan; or
12
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Part 2--Abalone Quota
s. 7
(c) to allocate any individual abalone quota
units that have been forfeited, or that
have otherwise become available.
(2) The Minister may determine that the
individual abalone quota units are to be
5
publicly sold.
(3) In making a determination, the Minister must
specify the method by which the sale is to
take place.
(4) Without limiting sub-section (3), a sale may
10
occur by auction, tender or ballot.
66M. Offences in relation to individual abalone
quota by holders of Abalone Fishery
Access Licences
(1) During any specified quota period, the holder
15
of an Abalone Fishery Access Licence or a
person who is acting on behalf of a holder of
an Abalone Fishery Access Licence in the
relevant zone must not take any fish in
excess of the specified amount.
20
Penalty:
(a) For a first offence, 50 penalty units and
the forfeiture of whichever is the
greater of 1 individual abalone quota
unit or the number of individual
25
abalone quota units 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 abalone quota
30
units or the number of individual
abalone quota units equivalent to
double the quantity of excess fish
taken.
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(c) For a third offence, 150 penalty units
and the cancellation of any entitlement
of the holder of the Abalone Fishery
Access Licence to hold an individual
abalone quota unit in the next full quota
5
period after the conviction.
(d) For a subsequent offence, 200 penalty
units or 12 months imprisonment or
both, and the cancellation of the
Abalone Fishery Access Licence.
10
(2) For the purposes of sub-section (1),
"specified amount" means the amount of
fish in kilograms permitted to be taken under
the individual abalone quota units specified
on the Abalone Fishery Access Licence.
15
(3) For the purposes of paragraph (c) of the
penalty at the foot of sub-section (1), a quota
period is a full quota period even if it is
shortened in any way by a quota order made
during the quota period.
20
(4) If the number of individual abalone quota
units not yet taken by the holder in the quota
period in which the conviction occurs is
less than the number forfeited under
paragraph (a) or (b) of the penalty at the foot
25
of sub-section (1), the balance of the
forfeited number of abalone quota units is
forfeited in the next quota period.
(5) For the purposes of sub-section (4), any
differences in the quantity of fish that
30
comprise an individual quota unit in different
periods are to be disregarded.
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(6) For the purposes of paragraphs (a) and (b) of
the penalty at the foot of sub-section (1), if a
quantity of fish does not equate exactly to a
number of individual abalone quota units, the
excess is deemed to be an individual abalone
5
quota unit.
(7) If a person who is acting on behalf of the
holder of an Abalone Fishery Access
Licence exceeds the specified amount for the
Abalone Fishery Access Licence--
10
(a) he or she is liable to the relevant fines
or imprisonment specified in sub-
section (1); and
(b) the relevant forfeiture applies to the
Abalone Fishery Access Licence.
15
66N. Offences in relation to abalone sub-zones
(1) During any specified quota period, the holder
of an Abalone Fishery Access Licence must
not take any fish in excess of the fish
specified in the abalone sub-zone notice
20
given to the holder of the Abalone Fishery
Access Licence.
Penalty:
(a) For a first offence, 50 penalty units.
(b) For a subsequent offence, 100 penalty
25
units or 6 months imprisonment or
both, and the forfeiture of the number
of individual abalone quota units
equivalent to the quantity of excess fish
taken.
30
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(2) If a person who is acting on behalf of the
holder of an Abalone Fishery Access
Licence takes any fish in excess of the fish
specified in the abalone sub-zone notice
given to the holder of the Abalone Fishery
5
Access Licence --
(a) the person is liable to the relevant fines
specified in sub-section (1); and
(b) the relevant forfeiture applies to the
Abalone Fishery Access Licence.
10
66O. Requirement on holder of an Abalone
Fishery Access Licence to hold minimum
number of individual blacklip abalone
quota units
(1) The holder of an Abalone Fishery Access
15
Licence must ensure that the minimum
number of individual blacklip abalone quota
units required to be held by the initial
abalone quota order is held by the holder for
each Abalone Fishery Access Licence held
20
by the holder.
(2) If any of the minimum number of individual
blacklip abalone quota units held by the
holder of an Abalone Fishery Access
Licence is forfeited, the Abalone Fishery
25
Access Licence is by force of this section
suspended until the holder of the Abalone
Fishery Access Licence acquires the number
of individual blacklip abalone quota units
necessary to comply with sub-section (1).
30
(3) If the holder of an Abalone Fishery Access
Licence does not comply with sub-section
(1) at the beginning of the next quota period,
the Secretary must defer the renewal of the
Abalone Fishery Access Licence in
35
accordance with section 57.
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66P. Additional penalty on holder of an
individual abalone quota unit in relation
to an abalone offence
If a person who is the holder of an individual
abalone quota unit is convicted or found
5
guilty by a court of an offence under this Act
relating to abalone, the court may, in
addition to any other penalty that the court
may impose for that offence, order the
forfeiture of 1 or more individual abalone
10
quota units held by that person.
66Q. Penalty for failure to pay royalty or levy
(1) This section applies if the royalty or levy
imposed in respect of an individual abalone
quota unit has not been paid within 14 days
15
of the date that the payment of the royalty or
levy was due.
(2) If this section applies, the Secretary may
serve a written notice on the holder of the
individual abalone quota unit specifying that
20
the entitlement under the individual abalone
quota unit is suspended until the relevant
royalty or levy is paid.
(3) A copy of a notice served under sub-
section (2) must be sent to each holder of a
25
registered financial interest in the individual
abalone quota unit within 7 days of the
notice being served under sub-section (2).
(4) If the relevant royalty or levy has not been
paid within 12 months of the notice being
30
served under sub-section (2), the individual
abalone quota unit is cancelled on the day
after the end of the period of 12 months.
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66R. Forfeiture of individual abalone quota
unit
(1) This section applies to an individual abalone
quota unit that is forfeited by a court under
this Division.
5
(2) The Secretary must notify each holder of a
registered financial interest in the individual
abalone quota unit of the forfeiture.
(3) For the purposes of this section, the
forfeiture of the individual abalone quota
10
unit is stayed and the individual abalone
quota unit is deemed to have been suspended
until whichever of the following first
occurs--
(a) an appeal against the forfeiture of the
15
individual abalone quota unit is
granted; or
(b) if there is no appeal against the
forfeiture of the individual abalone
quota unit or the appeal is dismissed--
20
(i) the holder of the individual
abalone quota unit or the
registered financial interest
transfers the individual abalone
quota unit to an eligible person in
25
accordance with this Division; or
(ii) the expiry of the period of 6
months after the date on which
an appeal should have been
lodged or was dismissed (as the
30
case may be).
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(4) If sub-section (3)(b) applies and the holder of
the individual abalone quota unit fails to
transfer the individual abalone quota unit in
accordance with that sub-section, the
individual abalone quota unit is cancelled as
5
from the expiry of the period of 6 months
specified in that sub-section.
(5) If sub-section (3)(b) applies but sub-
section (4) does not apply, the forfeiture of
the individual abalone quota unit by the court
10
is revoked on the transfer of the individual
abalone quota unit to the eligible person.'.
8. Amendment of section 137--Reviewable decisions
After section 137(ha) of the Fisheries Act 1995
insert--
15
"(hb) to refuse approval of a transfer of individual
abalone quota units under section 66K;".
9. Amendment of section 150--Royalties
(1) After section 150(1) of the Fisheries Act 1995
insert--
20
"(1A) A royalty may be imposed under this Act in
respect of an individual abalone quota unit
issued under this Act.".
(2) After section 150(2)(a) of the Fisheries Act 1995
insert--
25
"(aa) at a different rate in respect of specified
classes of individual abalone quota units or
in respect of specified classes of individual
abalone quota units in relation to specified
zones;".
30
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10. Amendment of section 151--Levy
(1) After section 151(1) of the Fisheries Act 1995
insert--
"(1A) Subject to and in accordance with this
section, there may be charged, levied and
5
collected by the Secretary in respect of
individual blacklip abalone quota units and
individual greenlip abalone quota units
prescribed levies at prescribed rates.".
(2) After section 151(2)(d) of the Fisheries Act 1995
10
insert--
"(da) in the case of an individual abalone quota
unit--
(i) as a fixed amount; or
(ii) as a percentage of the royalty payable
15
in respect of the individual abalone
quota unit; or
(iii) in relation to the number of individual
abalone quota units held; or
(iv) in relation to specified zones; or".
20
__________________
20
551255B.I1-3/5/2005 BILL LA INTRODUCTION 3/5/2005
Fisheries (Abalone) Act 2005
Act No.
Part 3--Other Amendments
s. 11
PART 3--OTHER AMENDMENTS
11. Amendment of section 51
After section 51(3B) of the Fisheries Act 1995
insert--
"(3C) Despite anything to the contrary in any law,
5
the Secretary may only issue a Fish
Receiver's Licence to an individual, a single
corporation or a co-operative.
(3D) The Secretary must refuse to issue a Fish
Receiver's Licence to a partnership or a
10
consortium.".
12. Amendment of section 57
At the end of section 57 of the Fisheries Act 1995
insert--
"(13) Despite anything to the contrary in this
15
section, the Secretary may not renew a Fish
Receiver's Licence unless the person who is
to hold the renewed licence is an individual,
a single corporation or a co-operative.".
13. New section 57C inserted
20
Before section 58 of the Fisheries Act 1995
insert--
"57C. Transitional provision concerning certain
licences not held by one person
(1) If--
25
(a) on the date of commencement of
section 13 of the Fisheries (Abalone)
Act 2005 a Fish Receiver's Licence is
not held by an individual, a single
corporation or a co-operative; and
30
21
551255B.I1-3/5/2005 BILL LA INTRODUCTION 3/5/2005
Fisheries (Abalone) Act 2005
Act No.
Part 3--Other Amendments
s. 13
(b) by the date the licence is due to expire,
an individual, a single corporation or a
co-operative that holds the licence or
that is a successor of a person who
holds the licence, has not applied to the
5
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
expire.
10
(2) Despite anything in this Act to the contrary,
a suspension under sub-section (1) continues
until either--
(a) an individual, a single corporation or a
co-operative that held the licence or
15
that is a successor of a person who held
the licence, immediately before it was
suspended, applies to the Secretary for
the renewal of the licence in accordance
with the regulations and the Secretary
20
renews the licence; or
(b) the expiry of 12 months from the date
the suspension began--
whichever occurs first.
(3) If the suspension of a licence ends under
25
sub-section (2)(b), the licence is cancelled.".
22
551255B.I1-3/5/2005 BILL LA INTRODUCTION 3/5/2005
Fisheries (Abalone) Act 2005
Act No.
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
23
551255B.I1-3/5/2005 BILL LA INTRODUCTION 3/5/2005
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