FISHERIES ACT 1995 - SECT 106 Forfeiture or return of things seized or retained
FISHERIES ACT 1995 - SECT 106
Forfeiture or return of things seized or retainedS. 106(1) amended by Nos 69/2004 s. 9(1), 21/2011 s. 5(1).
(1) If any fishing equipment seized is equipment the possession, sale or use of which is prohibited by this Act, the regulations or a fisheries notice, the equipment is forfeited to the Crown.
S. 106(1A) inserted by No. 21/2011 s. 5(2).
(1A) If any fish, protected aquatic biota or noxious aquatic species seized has been taken or is possessed in contravention of this Act, the regulations or a fisheries notice, the fish, protected aquatic biota or noxious aquatic species is forfeited to the Crown.
S. 106(2) amended by No. 68/2016 s. 101(1).
(2) If any thing seized is not required as evidence in any proceedings, the chief executive officer may authorise the return of the thing on such conditions as the chief executive officer considers appropriate, including a condition that the person give security to the chief executive officer for payment of the value of the thing if it is forfeited.
S. 106(3) amended by No. 68/2016 s. 101(2).
(3) If the thing returned under subsection (2) is forfeited to the Crown, the security given in lieu of the thing is taken to be forfeited to the Crown and must be paid into the Consolidated Fund.
(4) A person must not contravene a condition imposed under subsection (2).
Penalty: 50 penalty units.
S. 106(5) amended by Nos 69/2004 s. 9(1), 35/2009 s. 66(2), 68/2009 s. 97(Sch. item 58.2), substituted by No. 21/2011 s. 5(3).
(5) A court finding any offence proven in respect of a thing seized or subject to a retention notice under this Act may order—
(a) in the case of a thing seized, if the thing is not subject to forfeiture to the Crown under subsection (1) or (1A)—
(i) the forfeiture of the thing; or
(ii) the return of the thing to the person found guilty of the offence or the owner of the thing;
(b) in the case of a thing subject to a retention notice, if the thing, had it been seized, would not have been subject to forfeiture to the Crown under subsection (1) or (1A)—
(i) the forfeiture of the thing; or
(ii) the cancellation of the retention notice and return of the thing to the person found guilty of the offence or the owner of the thing.
S. 106(5A) inserted by No. 17/2002 s. 20(1), substituted by No. 69/2004 s. 9(2).
(5A) A court must order the forfeiture of the thing under subsection (5) if the person in respect of whom the court found an offence proven has previously been convicted or found guilty on 2 or more occasions of—
S. 106(5A)(a) amended by No. 40/2019 s. 25(1).
(a) an offence involving priority species under section 36(1), 37(1), 40(1), 67(3), 68A(4B), 68A(5), 68B(1), 111A, 111B, 111C, 114(3), 116(1), 116(2A), 119A, 119B, 130(4), 130A(5) or 130B(6); or
(b) an associated offence in relation to an offence referred to in paragraph (a).
S. 106(6) amended by Nos 17/2002 s. 20(2)(a)(b), 68/2016 s. 101(3).
(6) Subject to subsection (6A), if anything is seized under this Act but proceedings are not commenced against any person for any offence arising out of the circumstances of the seizure within 90 days after the seizure or proceedings are commenced within 90 days after the seizure but are subsequently discontinued, the chief executive officer must order the return of the thing to the owner immediately and must notify the owner in writing accordingly.
S. 106(6A) inserted by No. 17/2002 s. 20(3), substituted by No. 21/2011 s. 5(4).
(6A) Subsection (6) does not apply to any thing—
(a) that is subject to forfeiture to the Crown under subsection (1) or (1A); or
S. 106(6A)(b) amended by No. 40/2019 s. 25(2).
(b) the sale, possession or use of which is prohibited by or under this or any other Act.
S. 106(6B) inserted by No. 40/2019 s. 25(3).
(6B) If any thing is seized under this Act but is not returned to the owner because the sale, possession or use of the thing is prohibited under another Act, the thing must be dealt with in accordance with that other Act.
S. 106(7) amended by No. 68/2016 s. 101(3).
(7) If anything is seized under this Act and is not forfeited to the Crown and the reason for its seizure no longer exists, the chief executive officer must take reasonable steps to return the thing to the owner.
S. 106(8) amended by No. 21/2011 s. 5(5).
(8) Any thing forfeited under this section, or seized under this Act and not claimed within 12 months after the seizure, may be destroyed or be sold and the proceeds of sale paid to the Consolidated Fund.
S. 106AA inserted by No. 21/2011 s. 6.