FISHERIES ACT 1995 - SECT 4 Definitions and interpretative provisions

FISHERIES ACT 1995 - SECT 4

Definitions and interpretative provisions

(1) In this Act—

S. 4(1) def. of abalone inserted by No. 5/1997

s. 4(1)(b).

"abalone" means blacklip and greenlip abalone and includes all other species, forms, races and hybrids of abalone;

S. 4(1) def. of access licence substituted by No. 5/1997

s. 4(1)(b).

"access licence" means a licence issued under section 38 ;

S. 4(1) def. of adjusting fishery repealed by No. 5/1997

s. 4(1)(a).

* * * * *

"angle" means use a line (whether or not attached to a rod) for the purpose of taking fish;

S. 4(1) def. of appointed day substituted by No. 5/1997

s. 4(1)(c).

appointed day means the appointed day or the relevant appointed day specified under section 155(3);

S. 4(1) def. of approved code of fishing practice repealed by No. 5/1997

s. 4(1)(a).

* * * * *

S. 4(1) def. of aquaculture licence substituted by No. 5/1997

s. 4(1)(c).

"aquaculture licence" means a licence issued under section 43 ;

"aquatic invertebrate" means an invertebrate that lives in water for the whole or part of its life cycle;

"arrangement" means an arrangement made by the State with the Commonwealth under this Act whether or not it is also made with another State or other States and an arrangement made by the State with another State or States;

S. 4(1) def. of associated offence inserted by No. 69/2004 s. 5(1).

associated offence has the meaning set out in section 98(1) ;

S. 4(1) def. of Australian lawyer inserted by No. 18/2005 s. 18(Sch. 1 item 44.1), repealed by No. 17/2014 s. 160(Sch. 2 item 44).

* * * * *

S. 4(1) def. of authorised officer amended by No. 68/2016 s. 50(b).

"authorised officer" means a person appointed as an authorised officer under the Conservation, Forests and Lands Act 1987 for the purposes of this Act, a person appointed under Part 3 of the Victorian Fisheries Authority Act 2016 or the chief executive officer;

S. 4(1) def. of blacklip abalone inserted by No. 58/2005 s. 3(1).

"blacklip abalone", in relation to abalone quota management, catch and size limits and closed seasons, means—

(a) all species of abalone other than greenlip abalone; and

(b) all other forms, races and hybrids of abalone;

boat means any means of transportation on water;

S. 4(1) def. of carcass inserted by No. 35/2009 s. 50(2).

"carcass" means

(a) in relation to shark or elephantfish, the body of a shark or elephantfish which is not cut or mutilated in any manner other than to remove the gut and head forward and clear of the posterior gill slit; and

(b) in relation to scale fish, the body of a fish which is not cut or mutilated in any manner other than to remove the gut or gills or scale the fish; and

(i) is not cut in any way other than to remove one or more legs or claws; or

(ii) is not mutilated in any way other than the absence of one or more legs or claws;

S. 4(1) def. of catch limit inserted by No. 5/1997

s. 4(1)(d).

"catch limit" means any limit imposed under this Act on the quantity or type of fish or fishing bait that may be taken, possessed or controlled in any specified circumstances, regardless of—

(a) whether the limit is expressed in terms of numbers, volume, weight, size or value;

(b) how the fish are specified;

(d) whether the limit applies to the whole, or only a part, of Victoria—

and includes trip, possession and bag limits, but does not include any limit relating to total allowable catches set under a quota order or to individual quotas or individual quota units;

S. 4(1) def. of chief executive officer inserted by No. 68/2016 s. 50(a).

"chief executive officer" means the chief executive officer of the Victorian Fisheries Authority;

S. 4(1) def. of closed season substituted by No. 5/1997

s. 4(1)(d).

closed season in relation to a species of fish means any time or period during which the taking of fish of that species is prohibited under this Act;

"coastal waters" in relation to the State has the same meaning as it has in the Commonwealth Act;

S. 4(1) def. of commercial abalone equipment substituted by No. 5/1997

s. 4(1)(e).

commercial abalone equipment means any device or mechanical thing that is designed for use, or that is capable of being used, for or in connection with the taking of abalone, and includes any underwater breathing apparatus, knife, probe, lever, iron or bar;

"commercial aquaculture equipment" means any equipment which is prescribed to be commercial aquaculture equipment;

"Commercial Fisheries Licensing Panel" means the Commercial Fisheries Licensing Panel referred to in section 132;

S. 4(1) def. of commercial fishing equipment substituted by No. 5/1997

s. 4(1)(f), amended by No. 51/2007 s. 3(1)(a) (2)(a)(b).

"commercial fishing equipment" means—

(a) any fish trap, hoop net or fishing net (other than recreational fishing equipment when used by a recreational fisher in accordance with this Act);

(b) any electrical or sonar device that is designed for use, or that is capable of being used, for or in connection with the taking of fish;

(c) any other device or mechanical thing that is designed for use, or that is capable of being used, for or in connection with the taking of fish (including any tipper used in connection with a scallop dredge);

(d) any yabby pot or crab pot;

(e) any drop line or fishing line left fixed or set in water (including fishing lines, hooks and snoods designed to be fixed or set but not yet fixed or set) whether or not the line, hook or snood is fixed or set from the shore or from a buoy or other object, but not including handlines, rods and reels that are being used by a recreational fisher in accordance with this Act;

(f) any recreational fishing equipment when being used by or under the supervision of a fishery licence or permit holder (or the agent of such a holder) as part of a commercial fishing activity;

(g) any other equipment that the regulations state is commercial fishing equipment;

(h) any fishing dredge, rock lobster pot or longline—

but does not include commercial abalone equipment unless, in a particular case, that equipment is also designed for use, or is capable of being used, for or in connection with the commercial taking of fish other than abalone;

S. 4(1) def. of commercial fishing licence repealed by No. 5/1997

s. 4(1)(a).

* * * * *

S. 4(1) def. of commercial quantity inserted by No. 108/2003 s. 3,

amended by No. 35/2009 s. 50(3), substituted by No. 40/2019 s. 11(1).

"commercial quantity", in relation to any priority species, means the quantity of fish prescribed in respect of that priority species;

"Commonwealth Act" means the Fisheries Management Act 1991 of the Commonwealth;

"Commonwealth Minister" means the Minister for the time being administering the Commonwealth Act and any other Minister exercising powers and performing functions pursuant to section 60 of the Commonwealth Act;

"Commonwealth proclaimed waters" means the Australian Fishing Zone (AFZ) as defined under the Commonwealth Act;

S. 4(1) def. of condition inserted by No. 5/1997

s. 4(1)(g).

"condition", in relation to a licence or permit, includes any restriction that applies to the licence or permit;

S. 4(1) def. of consultative body

repealed by No. 35/2009

s. 28.

* * * * *

S. 4(1) def. of co-operative inserted by No. 108/2003 s. 29(1), amended by No. 9/2013 s. 42(Sch. 2 item 9).

"co-operative" means a body registered as a co‑operative—

(a) under the Co‑operatives National Law (Victoria); or

(b) under an equivalent law of another Australian jurisdiction;

S. 4(1) def. of corporation inserted by No. 108/2003 s. 29(1).

"corporation" means a corporation that—

(a) has a registered office in Australia; and

(b) that holds an Australian Company Number;

S. 4(1) def. of Council inserted by No. 64/2013 s. 3(3).

"Council" means the Fisheries Advisory Council established under Part 6;

"court" means the Magistrates' Court or any other court of competent jurisdiction;

S. 4(1) def. of declared fishery repealed by No. 5/1997

s. 4(1)(a).

* * * * *

S. 4(1) def. of Department inserted by No. 108/2003 s. 3, amended by No. 70/2013 s. 4(Sch. 2 item 18.1), substituted by No. 68/2016 s. 50(c).

"Department" means the Department of Economic Development, Jobs, Transport and Resources;

S. 4(1) def. of designated licence condition inserted by No. 5/1997

s. 4(1)(h).

"designated licence condition" means a licence or permit condition that the regulations specify as a designated licence condition for the purposes of this Act;

S. 4(1) def. of developing fishery substituted by No. 5/1997

s. 4(1)(h).

"developing fishery" means a fishery that is not to be managed by the granting of renewable licences and that the regulations, or a Ministerial direction, define as a developing fishery;

S. 4(1) def. of fish receiver's licence inserted by No. 5/1997

s. 4(1)(h), amended as fish receiver licence by No. 35/2009 s. 50(4)(a).

"fish receiver licence" means a licence issued under section 41 ;

S. 4(1) defs of endorsement , export fishery repealed by No. 5/1997

s. 4(1)(a).

* * * * *

S. 4(1) def. of Fisheries Co-Management Council

repealed by No. 35/2009

s. 28.

* * * * *

"fisheries notice" means a fisheries notice made under section 152 ;

"fisheries reserve" means a fisheries reserve declared under section 88;

S. 4(1) def. of f ishery committee repealed by No. 35/2009

s. 28.

* * * * *

S. 4(1) def. of fishery licence amended by Nos 5/1997

s. 4(1)(i)(i)(ii) , 35/2009 s. 50(4)(b).

"fishery licence" means—

(a) an access licence; or

* * * * *

(d) a recreational fishery licence; or

(e) a fish receiver licence; or

(f) any other category of licence created by the regulations under clause 3.1 of Schedule 3;

S. 4(1) def. of fishing bait inserted by No. 5/1997

s. 4(1)(j).

"fishing bait" means any species of fauna declared to be fishing bait under section 6;

"foreign boat" has the same meaning as in the Commonwealth Act;

S. 4(1) def. of Gippsland Lakes inserted by No. 35/2019 s. 3.

"Gippsland Lakes" means the total area of all waters bounded by a line commencing at the seaward end of the western pier at the entrance wall at the entrance to the Gippsland Lakes, continuing in a generally north-westerly direction to the shoreward end of that pier then following the shoreline along the mean high water mark of such waters in a generally clockwise direction to the shoreward end of the eastern pier at the entrance wall at the entrance to the Gippsland Lakes, then following that wall to its seaward end, then in a generally westerly direction to the commencement of that line, but does not include the waters east of Eastern Beach Road or any river, creek or stream flowing into the Gippsland Lakes (except Chinaman's Creek and Boxes Creek which flow into and form part of Bancroft Bay);

S. 4(1) def. of greenlip abalone inserted by No. 58/2005 s. 3(1).

"greenlip abalone", in relation to abalone quota management, catch and size limits and closed seasons, means abalone of the species Haliotis laevigata;

S. 4(1) def. of individual quota amended by No. 5/1997

s. 4(1)(k).

"individual quota" means the number of quota units (including a portion of a quota unit) allocated to an access licence by a quota order, whether as part of a total allowable catch or otherwise;

S. 4(1) def. of individual quota unit substituted by No. 5/1997

s. 4(1)(l) , amended by No. 58/2005 s. 3(2)(a).

"individual quota unit" means a quantity of a species of fish (by number, volume, weight or value) declared under section 64A(1)(b) or 66D(1)(b) to be the individual quota unit for that species;

S. 4(1) def. of inland waters amended by No. 5/1997

s. 4(1)(m)(i)(ii).

"inland waters" means—

(a) any swamp or lake other than the Gippsland Lakes, Lake Tyers, the Lower Lake of Mallacoota Inlet and Wingan Inlet;

(b) any waterway, channel or anabranch from its mouth to its source and any inlet, backwater or lagoon connected with it;

(d) any reservoir, dam, tank, channel or works for water storage or distribution vested in or under the control of the Crown or a public authority;

(e) any other waters declared by the regulations to be inland waters—

but does not include any water or waters which is private property;

S. 4(1) def. of input managed fishery repealed by No. 5/1997

s. 4(1)(a).

* * * * *

"Joint Authority" means any Joint Authority established under Part 5 of the Commonwealth Act of which the Minister is a member;

"Joint Authority fishery" means a fishery in respect of which there is in force an arrangement under Part 2 by which the fishery is under the management of a Joint Authority;

S. 4(1) def. of licence amended by No. 5/1997

s. 4(1)(n).

"licence" means—

(a) a fishery licence; or

(b) any category of licence created by the regulations under clause 3.2 of Schedule 3;

S. 4(1) def. of Licensing Appeals Tribunal repealed by No. 40/2019 s. 11(3).

* * * * *

"management plan" means a management plan declared under Part 3;

S. 4(1) def. of marine waters substituted by No. 5/1997

s. 4(1)(o).

"marine waters" means Victorian waters other than—

(a) inland waters;

(b) any waters that are private property;

S. 4(1) def. of maximum size inserted by No. 40/2019 s. 11(2).

"maximum size", in relation to a species of fish, means the maximum size for that species of fish specified by the regulations or in a fisheries notice;

S. 4(1) def. of minimum size inserted by No. 40/2019 s. 11(2).

"minimum size", in relation to a species of fish, means the minimum size for that species of fish specified by the regulations or in a fisheries notice;

S. 4(1) def. of Ministerial direction inserted by No. 5/1997

s. 4(1)(o).

"Ministerial direction" means a direction given under section 61 ;

"noxious aquatic species" means a noxious aquatic species declared under section 75;

S. 4(1) def. of open season substituted by No. 5/1997

s. 4(1)(p).

"open season" in relation to a species of fish means any time or period during which the taking of fish of that species is not prohibited under this Act or during which the taking of fish of that species is allowed under this Act;

"Order in Council" means an Order made by the Governor in Council and published in the Government Gazette;

S. 4(1) def. of permit amended by No. 5/1997

s. 4(1)(q).

"permit" means—

(a) a general permit under section 49;

(b) a protected aquatic biota permit under section 72; or

(d) any other category of permit issued in accordance with the regulations;

S. 4(1) def. of police officer inserted by No. 37/2014 s. 10(Sch. item 65.1).

"police officer" has the same meaning as in the Victoria Police Act 2013 ;

S. 4(1) def. of priority species inserted by No. 5/1997

s. 4(1)(r), amended by No. 35/2009 s. 50(5).

"priority species" means—

(a) abalone, rock lobster or Murray cod; and

(b) any other species of fish that the regulations state are a priority species;

"process" means shell, skin, shuck, fillet, dismember, mince, open, cut, break, cook, pack, chill, freeze, can, preserve or otherwise treat;

"protected aquatic biota" means any taxon or community of aquatic flora or fauna declared to be protected aquatic biota under section 69 ;

"protected waters" means—

(a) Victorian waters; and

(b) any aquarium or hatchery or any other waters in Victoria whether or not private property;

"public authority" means any Government Department or any body corporate or unincorporate established under any Act for a public purpose;

S. 4(1) def. of quota fishery inserted by No. 80/2000 s. 3(b), amended by No. 58/2005 s. 3(2)(b).

"quota fishery" means a fishery, or a specified zone or zones of a fishery, that is the subject of a declaration under section 64(1)(a) or 66C(1)(a);

S. 4(1) def. of quota managed fishery repealed by No. 5/1997

s. 4(1)(a).

* * * * *

S. 4(1) def. of quota notice substituted by No. 5/1997

s. 4(1)(s).

"quota notice" means a notice issued under section 65;

S. 4(1) def. of quota order inserted by No. 5/1997

s. 4(1)(s), amended by Nos 80/2000 s. 3(a), 58/2005 s. 3(2)(c).

"quota order" means an order issued under section 64, 64A, 66C or 66D;

S. 4(1) def. of quota period inserted by No. 5/1997

s. 4(1)(s).

"quota period" means any period specified in a quota order as the period over which a total allowable catch or an individual quota is to apply;

S. 4(1) def. of recognised peak body repealed by No. 35/2009

s. 28.

* * * * *

S. 4(1) def. of recreational fishery licence inserted by No. 5/1997

s. 4(1)(t).

"recreational fishery licence" means a licence issued under section 45 or a group recreational fishery licence issued under section 46 ;

S. 4(1) def. of recreational fishing equipment inserted by No. 51/2007 s. 3(2)(c).

"recreational fishing equipment" means any fishing equipment prescribed in the regulations to be recreational fishing equipment;

S. 4(1) def. of recreational fishing licence repealed by No. 5/1997

s. 4(1)(t).

* * * * *

S. 4(1) def. of register repealed by No. 5/1997

s. 4(1)(a).

* * * * *

S. 4(1) def. of representative body inserted by No. 64/2013

s. 3(1).

"representative body" means an organisation that represents—

(a) commercial fishing interests; or

(b) seafood industry interests; or

(d) recreational fishing interests;

S. 4(1) def. of rock lobster inserted by No. 5/1997

s. 4(1)(u), amended by No. 64/2013

s. 3(2).

"rock lobster" means an animal of the family palinuridae;

S. 4(1) def. of Secretary substituted by Nos 76/1998 s. 8, 56/2003 s. 3, amended by No. 70/2013 s. 4(Sch. 2 item 18.2), substituted by No. 68/2016 s. 50(d).

"Secretary "means the Secretary to the Department of Economic Development, Jobs, Transport and Resources;

"sell" includes—

(a) barter; and

(b) exchange; and

(d) receive, have in possession or expose for sale; and

(e) send, forward, deliver or consign for sale; and

(f) sell for resale; and

(g) cause, permit or attempt any of the acts or things referred to in paragraphs (a) to (f);

S. 4(1) def. of specially managed fishery repealed by No. 5/1997

s. 4(1)(a).

* * * * *

S. 4(1) def. of stock inserted by No. 51/2007 s. 3(1)(b).

"stock" in relation to fish, includes the releasing, putting or introducing of fish into waters;

"take" means gain possession or control by any means;

S. 4(1) defs of taxon , transferable fishery licence repealed by No. 5/1997

s. 4(1)(a).

* * * * *

S. 4(1) def. of vessel monitoring system inserted by No. 80/2000 s. 3(b), amended by No. 68/2016 s. 50(e).

"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 activities of the boat; and

(b) transmitting data in relation to that location and those activities to the Secretary or the Secretary's delegate via a satellite communication system;

S. 4(1) def. of Victorian Fisheries Authority inserted by No. 68/2016 s. 50(a).

"Victorian Fisheries Authority" means the Victorian Fisheries Authority established under the Victorian Fisheries Authority Act 2016 .

S. 4(2) substituted by No. 5/1997

s. 4(2).

(2) A reference to "this Act", "under this Act" or "by this Act" includes a reference to any regulations, fisheries notice, Order in Council, notice, declaration, licence, permit order, Ministerial direction or other document or instrument made or issued under this Act, unless inconsistent with the context or subject matter.

S. 4(3) substituted by No. 5/1997

s. 4(2).

(3) For the purposes of this Act, any measurements fixed with respect to the taking, possession or sale of any species of fish throughout Victoria or in some part or parts of Victoria are the minimum permissible measurements applicable with respect to the taking, possession or sale of fish of that species, unless the contrary intention appears.

S. 4(4) substituted by No. 5/1997

s. 4(2).

(4) Any fish that is less than the minimum measurement fixed for fish of that species is referred to in this Act as undersized.

(5) In this Act, any reference to "measurement" or "size" or any derivatives thereof is to be read and construed as including reference to "weight".

(6) Subject to any express provision to the contrary, a reference in this Act to the weight of fish is to be read and construed as a reference to the whole weight of the fish, being the weight of the fish before any processing (other than freezing) commences and before any part of the fish is removed.

S. 4(7) substituted by No. 5/1997

s. 4(3).

(7) A reference to "he or she" or to "him or her" is to be read as including a reference to "it", if the context permits.

S. 4(7A) inserted by No. 69/2004 s. 11(3).

(7A) A reference to "his or her" is to be read as including a reference to "its", if the context permits.

S. 4(8) inserted by No. 5/1997

s. 4(3).

(8) A reference to an individual quota unit includes a reference to a fraction of an individual quota unit, unless a contrary intention appears.

S. 4(9) inserted by No. 5/1997

s. 4(3).

(9) A person who is exempted under this Act from any provision or requirement under this Act is to be treated as if he or she was authorised under this Act to do, or not do, the thing that he or she is exempted from doing, or not doing.

S. 4(10) inserted by No. 34/2006 s. 3.

(10) If an arrangement under Part 2 is varied, a reference in this Act to the arrangement is a reference to the arrangement as varied.

S. 4(11) inserted by No. 34/2006 s. 3.

(11) A reference to a fishery that is to be managed in accordance with the law of the State pursuant to an arrangement under Part 2 includes a reference to a part of such a fishery.

S. 4(12) inserted by No. 35/2009 s. 50(6).

(12) A reference in any subordinate instrument made under this Act or in any other document of any kind to a "fish receiver's licence" or a "fish receivers' licence" is to be read and construed as a reference to a " fish receiver licence" or any derivative thereof so far as it applies to any period on or after the commencement of section 50(4) of the Primary Industries Legislation Amendment Act 2009 , unless the contrary intention appears.

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FISHERIES ACT 1995 - SECT 4 Definitions and interpretative provisions