Part 2 General fisheries management
8 Closure of waters to fishing
(1) The Minister may from time to time, by notification, prohibit, absolutely or conditionally, the taking of fish, or of a specified class of fish, from any waters or from specified waters.(2) Any such prohibition is called a fishing closure.
9 Publication of notification of closures
(1) The notification of a fishing closure is to be published in the Gazette.(2) However, if the Minister considers that the fishing closure is required urgently, the Minister may publish the notification:(a) in a newspaper circulating, or by radio or television broadcast, in the area adjacent to the waters to which the fishing closure applies, or(b) by causing a copy of the notification to be exhibited in a prominent place adjacent to the waters to which the fishing closure applies.(3) In any such urgent case, the Minister is to publish the notification in the Gazette as soon as practicable.
(1) A fishing closure takes effect on the publication of the notification or on a later date specified in the notification.(2) A fishing closure remains in force, subject to this Act, for the period (not exceeding 5 years) specified in the notification.
11 Amendment or revocation of closures
The Minister may from time to time amend or revoke a fishing closure by a further notification published in accordance with this Division.
12 General provisions relating to closures
Sections 42–45 of the Interpretation Act 1987 apply to notifications of fishing closures in the same way as they apply to statutory rules within the meaning of that Act.Note. The above provisions of the Interpretation Act 1987 relate to standard provisions authorising the adoption of other publications by reference, the making of differential closures, the amendment or repeal of closures and judicial notice and presumptions as to validity for closures.
13 Regulations relating to closures
The regulations may make provision for or with respect to giving effect to fishing closures or to any other matter relating to fishing closures.
14 Offences relating to closures
(1) A person who takes fish in contravention of a fishing closure is guilty of an offence.Maximum penalty:
(a) in the case of an individual:(i) 200 penalty units or imprisonment for 6 months (or both) for a first offence, or(ii) 400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or(b) in the case of a corporation:(i) 1,000 penalty units for a first offence, or(ii) 2,000 penalty units for a second or subsequent offence.(2) A person who is in possession of fish taken in contravention of a fishing closure is guilty of an offence.Maximum penalty:
(a) in the case of an individual:(i) 200 penalty units or imprisonment for 6 months (or both) for a first offence, or(ii) 400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or(b) in the case of a corporation:(i) 1,000 penalty units for a first offence, or(ii) 2,000 penalty units for a second or subsequent offence.(3) It is a defence to a prosecution for an offence under subsection (2) if the person charged satisfies the court that the person did not know and could not reasonably have known that the fish had been taken in contravention of a provision of or made under this Act.
Division 2 Offences relating to size, quantity and particular species of fish
(1) In this Division:commercial quantity of a priority species of fish means:
(a) in relation to an offence against section 16—the quantity specified as a commercial quantity of fish for the species concerned in Column 3 of Part 1 of Schedule 1B, or(b) in relation to an offence against section 17 or 18—the quantity specified as a commercial quantity of fish for the species concerned in Column 3 of Part 2 of Schedule 1B.priority species of fish means:
(a) in relation to an offence against section 16—a species of fish specified in Column 1 of Part 1 of Schedule 1B, or(b) in relation to an offence against section 17 or 18—a species of fish specified in Column 1 of Part 2 of Schedule 1B.(2) If the commercial quantity of a priority species of fish is specified by reference to the total weight of the fish concerned, the total weight of the fish is to be determined in accordance with the regulations.(3) The common name of a species of fish specified in Column 2 of Schedule 1B is for information purposes only and does not limit the description of the species of fish in Column 1.(4) The Governor may, by regulation made on the recommendation of the Minister, amend Schedule 1B to insert, alter or omit any matter in that Schedule.
15 Declaration of prohibited size fish
(1) The regulations may declare that fish of a specified species that do not comply with a minimum size, maximum size or range of sizes specified for fish of that species are prohibited size fish.(1A) The regulations may declare different prohibited size fish for different classes of persons or for different circumstances.(2) The regulations may prescribe the method of determining the size of any class of fish.(3) The regulations may specify the size of fish by reference to measurement or weight (or both), or by reference to the number of individuals in any specified weight.
(1) A person who has prohibited size fish in the person’s possession is guilty of an offence.Maximum penalty:
(a) in the case of an individual:(i) 200 penalty units or imprisonment for 6 months (or both) for a first offence, or(ii) 400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or(b) in the case of a corporation:(i) 1,000 penalty units for a first offence, or(ii) 2,000 penalty units for a second or subsequent offence.(2) A person who has prohibited size fish in the person’s possession, in circumstances of aggravation, is guilty of an offence.Maximum penalty:
(a) in the case of an individual:(i) 400 penalty units or imprisonment for 12 months (or both) for a first offence, or(ii) 800 penalty units or imprisonment for 18 months (or both) for a second or subsequent offence, or(b) in the case of a corporation:(i) 2,000 penalty units for a first offence, or(ii) 4,000 penalty units for a second or subsequent offence.(3) A person who sells prohibited size fish is guilty of an offence.Maximum penalty:
(a) in the case of an individual:(i) 200 penalty units or imprisonment for 6 months (or both) for a first offence, or(ii) 400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or(b) in the case of a corporation:(i) 1,000 penalty units for a first offence, or(ii) 2,000 penalty units for a second or subsequent offence.(4) A person who sells prohibited size fish, in circumstances of aggravation, is guilty of an offence.Maximum penalty:
(a) in the case of an individual:(i) 400 penalty units or imprisonment for 12 months (or both) for a first offence, or(ii) 800 penalty units or imprisonment for 18 months (or both) for a second or subsequent offence, or(b) in the case of a corporation:(i) 2,000 penalty units for a first offence, or(ii) 4,000 penalty units for a second or subsequent offence.(5) For the purposes of subsections (2) and (4), a person has possession of prohibited size fish, or sells prohibited size fish, in circumstances of aggravation if:(a) the prohibited size fish in possession or sold by the person are a priority species of fish, and(b) the quantity of prohibited size fish in possession or sold by the person is a commercial quantity of that species of fish.
(1) The regulations may specify the maximum quantity of fish of a specified species, or of a specified class, that a person may take on any one day (the daily limit).(2) A person who takes on any one day more fish than the daily limit of those fish is guilty of an offence.Maximum penalty:
(a) in the case of an individual:(i) 200 penalty units or imprisonment for 6 months (or both) for a first offence, or(ii) 400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or(b) in the case of a corporation:(i) 1,000 penalty units for a first offence, or(ii) 2,000 penalty units for a second or subsequent offence.(2A) A person who takes on any one day more fish than the daily limit of those fish, in circumstances of aggravation, is guilty of an offence.Maximum penalty:
(a) in the case of an individual:(i) 400 penalty units or imprisonment for 12 months (or both) for a first offence, or(ii) 800 penalty units or imprisonment for 18 months (or both) for a second or subsequent offence, or(b) in the case of a corporation:(i) 2,000 penalty units for a first offence, or(ii) 4,000 penalty units for a second or subsequent offence.(2B) For the purposes of subsection (2A), a person takes fish in circumstances of aggravation if:(a) the fish taken are a priority species of fish, and(b) the quantity of fish taken is a commercial quantity of that species of fish.(3) The regulations may specify different daily limits for commercial fishers or other classes of fishers or in any other circumstances specified in the regulations. The regulations may also include restrictions as to size or otherwise in respect of any daily limit of fish.(3A) The regulations may specify a daily limit of zero for fish of a specified species or of a specified class. In that case, a reference in this section to taking more fish than the daily limit of those fish is to be read as a reference to taking any of those fish.(4) This section does not authorise the taking of fish in contravention of a fishing closure or other provision of or made under this Act.(5) The regulations may provide that the maximum quantity of any fish that may be taken applies to a period other than one day. In that case, a reference in this section to any one day is to be read as a reference to that other period.(6) The Minister is required to consult the Advisory Council on Recreational Fishing about any proposal to specify or change daily limits under this section or possession limits under section 18.
18 Bag limits—possession of fish
(1) The regulations may specify the maximum quantity of fish of a specified species, or of a specified class, that a person may have in possession in any specified circumstances (the possession limit).(2) A person who has in the person’s possession more than the possession limit of those fish is guilty of an offence. This subsection applies irrespective of the period over which the fish were taken.Maximum penalty:
(a) in the case of an individual:(i) 200 penalty units or imprisonment for 6 months (or both) for a first offence, or(ii) 400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or(b) in the case of a corporation:(i) 1,000 penalty units for a first offence, or(ii) 2,000 penalty units for a second or subsequent offence.(2A) A person who has in the person’s possession, in circumstances of aggravation, more than the possession limit of any fish is guilty of an offence. This subsection applies irrespective of the period over which the fish were taken.Maximum penalty:
(a) in the case of an individual:(i) 400 penalty units or imprisonment for 12 months (or both) for a first offence, or(ii) 800 penalty units or imprisonment for 18 months (or both) for a second or subsequent offence, or(b) in the case of a corporation:(i) 2,000 penalty units for a first offence, or(ii) 4,000 penalty units for a second or subsequent offence.(2B) For the purposes of subsection (2A), a person has possession of fish in circumstances of aggravation if:(a) the fish in the person’s possession are a priority species of fish, and(b) the quantity of fish in the person’s possession is a commercial quantity of that species of fish.(3) The regulations may specify different possession limits for commercial fishers or other classes of fishers or in any other circumstances specified in the regulations. The regulations may also include restrictions as to size or otherwise in respect of any possession limit of fish.(3A) The regulations may specify a possession limit of zero for fish of a specified species or of a specified class. In that case, a reference in this section to being in possession of more than the possession limit of those fish is to be read as a reference to being in possession of any of those fish.(4) The possession limit of any fish need not be the same as the daily limit of those fish.(5) This section does not authorise the possession of fish in contravention of any other provision of or made under this Act.
18A Additional monetary penalty for bag limit offences involving priority species
(1) A court that finds a person guilty of an offence against section 17 or 18 in respect of any species of fish that is a priority species of fish in relation to the offence concerned may impose an additional penalty for the offence of up to 10 times the market value of the fish the subject of the offence.(2) The market value of the fish the subject of the offence is the amount determined by the court as the price at which the fish might reasonably have been expected to be sold by the person who committed the offence at the time the offence was committed.(3) In determining the market value of the fish the subject of the offence, the court may have regard to the following:(a) the price for which fish of that species were being sold at the time of the offence (whether or not to purchasers within this State and whether or not legally),(b) the price for which the fish were sold, or for which fish of that species have previously been sold, by the person who committed the offence,(c) any other matters it considers appropriate.(4) The court may determine the market value of the fish the subject of the offence by reference to the weight of the fish the subject of the offence, the number of fish the subject of the offence or by any other method it considers appropriate.(5) The penalty provided for by this section is in addition to the maximum penalty provided for by this Act in respect of the particular offence concerned.
(1) The regulations may declare that fish of a specified species are protected fish.(2) A person who takes protected fish is guilty of an offence.(3) A person who has protected fish in the person’s possession is guilty of an offence.(4) The regulations may declare the possession of any protected fish to be prohibited absolutely.(5) If the possession of protected fish is prohibited absolutely, subsection (3) applies whether or not the fish are taken from waters to which this Act applies.Maximum penalty:
(a) in the case of an individual:(i) 200 penalty units or imprisonment for 6 months (or both) for a first offence, or(ii) 400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or(b) in the case of a corporation:(i) 1,000 penalty units for a first offence, or(ii) 2,000 penalty units for a second or subsequent offence.
20 Fish and waters protected from commercial fishing
(1) The regulations may declare that fish of a specified species are protected, absolutely or conditionally, from all or a class of commercial fishing.(2) The regulations may declare specified waters to be waters in which all or a class of commercial fishing is prohibited absolutely or conditionally.(3) A person who:(a) takes fish of a species declared under subsection (1) in breach of the declaration, or(b) takes fish from waters declared under subsection (2) in breach of the declaration, or(c) sells fish taken in breach of a declaration under subsection (1) or (2),is guilty of an offence.Maximum penalty:
(a) in the case of an individual:(i) 1,000 penalty units or imprisonment for 6 months (or both) for a first offence, or(ii) 2,000 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or(b) in the case of a corporation:(i) 2,000 penalty units for a first offence, or(ii) 4,000 penalty units for a second or subsequent offence.(4) The regulations may declare the sale of any species of fish that is protected from commercial fishing under subsection (1) to be prohibited absolutely.(5) A person who sells fish of a species declared under subsection (4) is guilty of an offence.Maximum penalty:
(a) in the case of an individual:(i) 1,000 penalty units or imprisonment for 6 months (or both) for a first offence, or(ii) 2,000 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or(b) in the case of a corporation:(i) 2,000 penalty units for a first offence, or(ii) 4,000 penalty units for a second or subsequent offence.(6) Subsection (5) applies whether or not the fish were taken from waters to which this Act applies.(7) A person cannot be found guilty of both an offence against subsection (3) (c) and an offence against subsection (5) in respect of the same sale.(8) Nothing in this section limits the power of the Minister to make a fishing closure in relation to commercial fishing.
20A Fish and waters protected from recreational fishing
(1) The regulations may declare that fish of a specified species are protected, absolutely or conditionally, from all or a class of recreational fishing.(2) The regulations may declare specified waters to be waters in which all or a class of recreational fishing is prohibited absolutely or conditionally.(3) A person who:(a) takes fish of a species declared under subsection (1) in breach of the declaration, or(b) takes fish from waters declared under subsection (2) in breach of the declaration,is guilty of an offence.Maximum penalty:
(a) in the case of an individual:(i) 200 penalty units or imprisonment for 6 months (or both) for a first offence, or(ii) 400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or(b) in the case of a corporation:(i) 1,000 penalty units for a first offence, or(ii) 2,000 penalty units for a second or subsequent offence.(4) Nothing in this section limits the power of the Minister to make a fishing closure in relation to recreational fishing.
(1) It is a defence to a prosecution for an offence under this Division if the person charged satisfies the court that:(a) the fish were lawfully taken from or lawfully cultivated in waters to which this Act does not apply, or(b) the fish were cultivated under the authority conferred by an aquaculture permit, or(c) the fish were taken or in possession under the authority conferred by any other permit under this Act, or(d) the person has any other defence that is prescribed by the regulations.(2) Subsection (1) (a) does not apply to the following offences:(a) an offence under section 19 (3), if the possession of the protected fish is prohibited absolutely by the regulations,(b) an offence under section 20 (5).
Division 2A Trafficking in fish
(1) In this Division:indictable quantity of a species of fish means the quantity specified as an indictable quantity of fish for the species concerned in Column 3 of Schedule 1C.
indictable species of fish means a species of fish specified in Column 1 of Schedule 1C.
(2) If an indictable quantity of a species of fish is specified by reference to the total weight of the fish concerned, the total weight of the fish is to be determined in accordance with the regulations.(3) The common name of a species of fish specified in Column 2 of Schedule 1C is for information purposes only and does not limit the description of the species of fish in Column 1.(4) The Governor may, by regulation made on the recommendation of the Minister, amend Schedule 1C to insert, alter or omit any matter in that Schedule.
(1) A person must not traffic in an indictable species of fish.Maximum penalty: Imprisonment for 10 years.
(2) For the purposes of this Division, a person traffics in an indictable species of fish if:(a) the person dishonestly takes, sells, receives or possesses fish of an indictable species, and(b) the taking, selling, receiving or possession of the fish by the person contravenes another provision of this Act or of the regulations, and(c) the quantity of fish of an indictable species taken, sold, received or possessed is not less than an indictable quantity of the species concerned.(3) Any defence that is applicable to proceedings for an offence in respect of a contravention of another provision of this Act or of the regulations also applies to proceedings for an offence against this section in respect of the same contravention.(4) A person may be found guilty of an offence against this section in relation to a contravention of another provision of this Act whether or not the person has been found guilty of an offence against another provision of this Act in relation to that contravention.
21C Additional monetary penalty may be imposed
(1) A court that finds a person guilty of an offence against section 21B may impose an additional penalty for the offence of up to 10 times the market value of the fish the subject of the offence.(2) The market value of the fish the subject of the offence is the amount determined by the court as the price at which the fish might reasonably have been expected to be sold by the person who committed the offence at the time the offence was committed.(3) In determining the market value of the fish the subject of the offence, the court may have regard to the following:(a) the price for which fish of that species were being sold at the time of the offence (whether or not to purchasers within this State and whether or not legally),(b) the price for which the fish were sold, or for which fish of that species have previously been sold, by the person who committed the offence,(c) any other matters it considers appropriate.(4) The court may determine the market value of the fish the subject of the offence by reference to the weight of the fish the subject of the offence, the number of fish the subject of the offence or by any other method it considers appropriate.(5) The penalty provided for by this section is in addition to the maximum penalty provided for by this Act in respect of the offence concerned.
22 Registration of fishing gear
(1) The regulations may make provision for or with respect to the registration of specified classes of fishing gear.(2) If a class of fishing gear is registrable, a person who uses unregistered gear of that class to take fish is guilty of an offence.Maximum penalty: In the case of a corporation, 50 penalty units or, in any other case, 25 penalty units.
23 Regulations relating to fishing gear
The regulations may make provision for or with respect to fishing gear (including the classes of nets or traps that may lawfully be used for taking fish).
24 Lawful use of nets or traps
(1) A person must not use a net or trap for taking any fish unless its use by the person for taking those fish is declared by the regulations to be a lawful use of the net or trap.Maximum penalty:
(a) in the case of an individual:(i) 200 penalty units or imprisonment for 6 months (or both) for a first offence, or(ii) 400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or(b) in the case of a corporation:(i) 1,000 penalty units for a first offence, or(ii) 2,000 penalty units for a second or subsequent offence.(2) This section does not affect any other prohibition of the use of a net or trap under a fishing closure or other provision of or made under this or any other Act.
25 Possession of illegal fishing gear
(1) A person who is in possession of any fishing gear in, on or adjacent to any waters is guilty of an offence if:(a) the use by that person of that fishing gear for taking fish from those waters is, at that time, prohibited by or under this Act, or(b) the taking of fish from those waters is, at that time, prohibited by or under this Act.Maximum penalty:
(a) in the case of an individual:(i) 200 penalty units or imprisonment for 6 months (or both) for a first offence, or(ii) 400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or(b) in the case of a corporation:(i) 1,000 penalty units for a first offence, or(ii) 2,000 penalty units for a second or subsequent offence.(2) A person who is on board a boat is taken to be in possession of any fishing gear found in the boat.(3) It is a defence to a prosecution for an offence under this section if the person charged satisfies the court that the fishing gear was being transported, in accordance with the written authority of a fisheries officer, to waters where the person could lawfully take fish with that gear.(4) It is a defence to a prosecution for an offence under this section if the person charged satisfies the court that the fishing gear was in his or her possession for a lawful purpose (including any purpose prescribed as lawful by the regulations).
Division 4 Total allowable catches
26 Establishment of TAC Committee
A Total Allowable Catch Setting and Review Committee (the TAC Committee) is established.
27 Composition and procedure of TAC Committee
(1) The TAC Committee is to consist of at least 4 members, as follows:(a) a person appointed by the Minister as the Chairperson of the TAC Committee, being a person who is neither engaged in the administration of this Act nor engaged in commercial fishing,(b) a person appointed by the Minister who is a natural resource economist not employed by the Government,(c) a person appointed by the Minister who is a fishery scientist not employed by the Government,(d) persons appointed by the Minister who have appropriate fisheries management qualifications.(2) Schedule 2 has effect with respect to the members and procedure of the TAC Committee.
(1) The TAC Committee may determine, in accordance with this Division, the total allowable catch of fish in any fishery for the commercial fishing sector.(2) The TAC Committee is required to determine a specified total allowable catch for a share management fishery if the management plan for the fishery so requires.(3) The TAC Committee is required to determine any other total allowable catch if (and only if) required to do so by the Minister.(4) The TAC Committee may also determine, in accordance with this Division, any other matter relating to fishing effort in a share management fishery if (and only if) required to do so by the Minister. This Division applies to the determination of any such matter in the same way as it applies to the determination of a total allowable catch.
29 TAC Committee not subject to Ministerial control
(1) The TAC Committee is not subject to the control or direction of the Minister as to any determination to be made by it.(2) However, the Minister may direct the TAC Committee on the procedure to be followed and, subject to this Division, the matters to be taken into account in making a determination.(3) The Minister may require the TAC Committee to reconsider a determination.
30 General considerations for TAC Committee
(1) In determining total allowable catches under this Division, the TAC Committee is to give effect to the objects of this Act and is to have regard to all relevant scientific, industry, community, social and economic factors.(2) The TAC Committee is also to have regard to:(a) the need to ensure that the exploitation of fisheries resources is conducted in a manner that will conserve fish stocks in the long term, and(b) the impact of fishing activities on all species of fish and the aquatic environment, and(c) the precautionary principle, namely, that if there are threats of serious or irreversible damage to fish stocks, lack of full scientific certainty should not be used as a reason for postponing measures to prevent that damage.
31 Public consultation by TAC Committee
(1) Before the TAC Committee determines a total allowable catch under this Division (or reviews any such determination), the TAC Committee is required to call for public submissions on the appropriate total allowable catch.(2) When the TAC Committee determines a total allowable catch under this Division it is to have regard to any public submissions it receives within the time fixed by it for the making of those submissions.
32 Review of determinations by TAC Committee
(1) The TAC Committee is to keep its determinations of total allowable catches under review.(2) Following a review, the TAC Committee may decide not to alter its existing determination, to determine a different total allowable catch or to revoke its determination of a total allowable catch.(3) However, the TAC Committee may not revoke a determination that it is required to make by a management plan for a share management fishery or by the Minister, unless it is replaced by a new determination.(4) Despite section 31, a review of a determination of total allowable catch made by the TAC Committee (an initial determination) may be carried out without calling for public submissions on the appropriate total allowable catch if:(a) the review is conducted, and any new or different determination of total allowable catch made as a result of the review is made, within 6 months after the initial determination was made, and(b) before making the initial determination, the TAC Committee called for public submissions in relation to the appropriate total allowable catch.(5) Subsection (4) does not apply if the Minister directs the TAC Committee to call for public submissions in relation to a review.(6) If the TAC Committee conducts a review of an initial determination without calling for public submissions, the TAC Committee must, in making any decision in relation to the review, have regard to any public submissions that it was required to have regard to when it made the initial determination.
33 Publication and duration of determinations
(1) A determination of the TAC Committee of a total allowable catch is to be published in the Gazette by the Minister.(2) The determination takes effect on the date (on or after that publication) that is specified in the determination.(3) The determination has effect for the period specified in the determination or, if no such period is specified, until it is revoked by another determination.(4) However, if the determination relates to a total allowable catch required under a management plan for a share management fishery, the determination does not cease to have effect until revoked by a new determination of that total allowable catch.
34 Implementation of determinations
(1) The Minister is required to review, in the light of any determination of the TAC Committee, the regulations and other instruments under this Act regulating the taking of fish by commercial fishers and other fishers.(2) If the determination relates to a total allowable catch required under the management plan for a share management fishery, the determination is to be implemented in accordance with this Act and the management plan.
Division 4A Recreational fishing fee
In this Division:fishing fee means a recreational fishing fee payable under this Division.
fishing fee exemption certificate means a certificate issued under section 34I and in force.
official receipt means a receipt issued under this Division for payment of a recreational fishing fee, being:
(a) if the fishing fee was paid in person—the hard copy receipt issued as evidence of payment (or a copy of that receipt), or(b) if the fishing fee was paid over the telephone or by electronic means—the receipt number issued as evidence of payment, or(c) any other evidence of payment of a fishing fee prescribed by the regulations.
The purpose of fishing fees is to provide revenue to assist activities supported through the recreational fishing trust funds established under Division 3 of Part 8, including the following:(a) enhancing, maintaining or protecting recreational fishing,(b) carrying out research into fish and their ecosystems,(c) managing recreational fishing,(d) ensuring compliance with recreational fishing regulatory controls.
A recreational fishing fee is payable by recreational fishers as required by this Division.
34C Recreational fishers required to pay fishing fee
(1) A fishing fee is payable by all recreational fishers, unless exempted by or under this section.(2) A fisher is exempt from paying a fishing fee:(a) if the fisher is under 18 years of age, or(b) if the fisher is of or over 18 years of age and is only assisting a fisher under 18 years of age to take fish by means of a single rod or line, or(c) if the fisher holds a licence, permit or other authority under this Act or the regulations and is taking fish in accordance with that licence, permit or other authority, or(d) if the fisher is engaging in recreational fishing activities that are exempt from payment of a fishing fee by virtue of a fishing fee exemption certificate that is in force, or(e) if the fisher is taking fish from water subject to an aquaculture permit and is taking fish to which the permit relates, or(f) if the fisher is an Aboriginal person, or(g) if the fisher is taking fish from an aquarium, or from a body of water of a class exempted by the regulations, or(h) if the fisher is a fisher of a class exempted by the regulations.(3) The regulations may require recreational fishers to produce evidence that they are exempt from paying a fishing fee.
34D Periods for which fishing fee payable
(1) A fishing fee is payable for any period during which a recreational fisher takes fish from any waters otherwise than for sale.(2) A fishing fee may be paid for any of the following periods:(a) a period of 3 days,(b) a period of 1 month,(c) a period of 12 months,(d) a period of 3 years.(3) The regulations may prescribe other periods for which a fishing fee may be paid (whether in addition to, or substitution for, the periods referred to in subsection (2)).
(1) The amount of the fishing fee is (subject to this section):(a) for a period of 3 days—$5, or(a1) for a period of 1 month—$10, or(b) for a period of 12 months—$25, or(c) for a period of 3 years—$70.(2) The regulations may prescribe a different amount for any such period and may prescribe the amount for any other period for which a fishing fee may be paid.
34F Reductions in fishing fee payable
The regulations may provide for reductions in the amount of the fishing fee otherwise payable by persons of a specified class.
34G Issue of receipt on payment of fishing fee
(1) A person who pays a fishing fee is entitled to be issued with an official receipt for the payment.(2) A receipt is evidence of the payment of the fishing fee and not an authority to take fish, and accordingly cannot be refused or made subject to any conditions.(3) A receipt is to be in a form approved by the Minister.(3A) The Director-General is to make appropriate arrangements to ensure that a person who pays a fishing fee is issued with an official receipt for the payment.(4) The regulations may make provision for the issue of replacement receipts for receipts that are lost, destroyed or damaged.(5) A receipt is not transferable.
34H Arrangements for collection of fishing fees and issue of receipts
(1) The Director-General may enter into arrangements with any person for the collection of fishing fees and the issue of official receipts. A person who enters into such an arrangement is an authorised agent for the purposes of this Act.(2) The Director-General is to ensure that sufficient arrangements are made to enable the payment of fishing fees in convenient locations throughout the State.(3) An arrangement may make provision for the payment of a commission to the authorised agent, whether by way of the retention of a percentage of the amount of fishing fees paid or by way of a separate payment.(4) An arrangement may make provision for the authorised agent to make specified records, and follow specified procedures, with respect to the collection and remittance of fishing fees and the issue of official receipts.
34I Fishing fee exemption certificates
(1) The Minister may issue a fishing fee exemption certificate in respect of any recreational fishing activities.(2) A certificate exempts persons carrying out those recreational fishing activities from the obligation to pay a fishing fee under this Division.(3) A certificate may be issued:(a) to a person in respect of recreational fishing activities that are carried out under the supervision or guidance of the person (or an employee or agent of the person), or(b) to the owner of a boat (or another person authorised by the owner) in respect of recreational fishing activities that are carried out on the boat, or(c) to such other persons or class of persons, and in respect of such other activities, as the regulations may prescribe.(4) The fee (if any) payable for the certificate and other matters concerning the certificate are to be prescribed by the regulations. The fee for the certificate is taken to be a fishing fee paid under this Division for the purposes of Division 3 of Part 8.
(1) A recreational fisher who is required by this Division to pay a fishing fee is guilty of an offence if the fisher fails to pay the fishing fee.Maximum penalty: 20 penalty units.
(2) A recreational fisher who is required by this Division to pay a fishing fee is guilty of an offence if the fisher does not have an official receipt for the payment of the fishing fee in his or her immediate possession when taking fish from any waters.Maximum penalty: 20 penalty units.
(3) For the purposes of proceedings under this section, a person who is in possession of fishing gear on, in or adjacent to any waters is presumed conclusively to be taking fish from those waters (even though the person takes or proposes to take fish only from other waters outside the State). The regulations may provide exemptions from this subsection.(4) For the purposes of this section, a person has an official receipt in his or her immediate possession only if the person is able to immediately produce the official receipt if required.
Division 4B Acquisition of commercial fishing entitlements
The purpose of this Division is to provide an equitable mechanism for the reallocation of fisheries resources and for the payment of compensation to commercial fishers for the acquisition of their fishing entitlements.
34L Declaration by Minister of acquisition of entitlements
(1) The Minister may, by order published in the Gazette:(a) declare that any fishery (or part of a fishery) specified in the order is a fishery to which this Division applies, and(b) specify the relevant commercial fishing entitlements that are to be acquired under this Division.(2) For the purposes of this Division:(a) any such declaration is an acquisition declaration, and(b) the fishery (or the part of a fishery) to which the declaration relates is the declared fishery, and(c) the specified commercial fishing entitlements are the acquired entitlements.
34M Consultation on proposed acquisition declaration
The Minister is required to give the following persons and bodies an opportunity to make submissions on any proposed acquisition declaration and to take any submission that is duly made into account:(a) the persons whose commercial fishing entitlements are proposed to be acquired,(b) any advisory council on recreational fishing and any relevant advisory council on commercial fishing established under section 229,(c) the local community in the area affected by the proposed declaration.Note. Section 284 sets out the public consultation procedure.
34N Termination of commercial fishing entitlements following declaration of acquisition
(1) As soon as practicable after an acquisition declaration, the Minister is to cancel the acquired entitlements.(2) For that purpose, the Minister may do any one or more of the following:(a) cancel any shares in a share management fishery,(b) cancel a commercial fishing licence,(c) take any other action available to the Minister.
34O Entitlement to compensation for acquired entitlements
(1) The persons who held acquired entitlements that are cancelled under this Division are entitled (subject to this Division) to compensation from the State for the market value of the entitlements they held:(a) as at 19 January 2000, subject to paragraph (b), or(b) as at a later date notified in the acquisition declaration.(2) If the amount of the compensation is not agreed between the Minister and the person entitled to compensation, the Minister is to determine the amount after a review of the matter by a panel constituted by the Minister in accordance with the regulations.(3) If the person entitled to compensation is not satisfied with the review of the matter by the panel, the Minister may (at the person’s request) refer the matter to the Valuer-General for advice as to the amount of compensation required to be paid under this section.(4) A person who is dissatisfied with the amount of compensation offered to the person under this Division or with any delay in the payment of compensation may appeal to the Land and Environment Court.(5) The regulations may make provision for or with respect to the payment of compensation in accordance with this Division.
Division 4C Fishing businesses
In this Division:fishing authority means a licence, permit, share, endorsement or any other authority relating to fishing activities issued or given under this Act or any other law (whether or not of this State).
NSW fishing authority means a fishing authority issued or given under this Act.
transfer of a fishing business or a component of a fishing business means the transfer, transmission, conveyance or assignment of a fishing business or component of a fishing business, and includes any other dealing in a fishing business or component of a fishing business of a kind prescribed by the regulations.
34Q Fishing business determinations
(1) The Director-General may, from time to time:(a) determine that a business that the Director-General considers to be a separate and identifiable fishing business is a fishing business, and(b) determine the components of that fishing business.(2) Such of the following as the Director-General considers to be owned, used, held or acquired in connection with a fishing business may be determined to be a component of the fishing business:(a) one or more fishing boats,(b) fishing gear,(c) any fishing authority held by a person,(d) the catch history of any person (determined in accordance with this Act and the regulations).(3) For the purposes of this Act:(a) a fishing business is a business determined by the Director-General to be a fishing business under this section, and(b) the fishing business is comprised of those components that are determined by the Director-General to be components of the fishing business.(4) The Director-General may, from time to time, amend or revoke a determination under this section by making a further determination.(5) A determination by the Director-General under this section is called a fishing business determination.(6) A fishing business determination is to be made:(a) in accordance with such provisions (if any) relating to the making of fishing business determinations as may be contained in the regulations or a management plan for a fishery (or both), and(b) in a manner consistent with any guidelines relating to transfers of fishing businesses, approved by the Director-General before the commencement of this section, that had effect in relation to any transfer made before the fishing business transfer rules took effect.(7) The Director-General may make a fishing business determination at any time:(a) on his or her own initiative, or(b) on an application made, in a form and manner approved by the Director-General, by the person (or persons) who own the business in respect of which the determination is sought.(8) The Director-General is required to give the person (or persons) who own a business that is the subject of a fishing business determination notice in writing of the determination.(9) A reference in this Act to the owner of a fishing business is a reference to the person (or persons) who, from time to time, owns or own a business that is, or has been, determined to be a fishing business by the Director-General under this section.
34R Allocation of fishing business number
(1) The Director-General is to allocate a unique identification number to each fishing business.(2) The Director-General may endorse a NSW fishing authority that is a component of a fishing business with the number allocated to the fishing business.
34S Register of fishing business determinations
(1) The Director-General is required to keep a register of fishing business determinations.(2) For each fishing business determination there is to be recorded in the register:(a) the name of the person (or persons) who own the business the subject of the determination,(b) the number allocated by the Director-General to the fishing business,(c) particulars of the components of the fishing business,(d) such other particulars as are required by the regulations to be recorded in the register in relation to a fishing business.(3) The register may be kept wholly or partly by means of a computer.(4) The register is to be made available for public inspection at the head office of the Department during ordinary business hours.(5) If the register is kept wholly or partly by means of a computer, subsection (4) may be complied with by making the contents of the register available on the website of the Department.(6) The Director-General may correct any error in or omission from the register.(7) A certificate signed or purporting to be signed by the Director-General, or an officer of the Department authorised in writing by the Director-General to exercise the functions conferred by this subsection, that certifies that, on a specified date or during a specified period, the particulars contained in the register as to specified matters were as so specified, is admissible in any proceedings and is evidence of the matters so certified.
34T Fishing business transfer rules
(1) The regulations or the management plan for a fishery (or both) may make provision for or with respect to the transfer of a fishing business (or components of a fishing business) and provide for the recognition, or restriction, of fishing rights following any such transfer. Such provisions are referred to as fishing business transfer rules.(2) In particular, the fishing business transfer rules may provide that a person to whom a component of a fishing business is transferred does not, as a consequence of that transfer, acquire any right to be issued with or given a NSW fishing authority unless all components of the fishing business are either transferred to the person or surrendered to the Minister for cancellation.Note. Some components of a fishing business, for example, endorsements in a restricted fishery, may not be transferable (see section 114). The fishing business transfer rules may require such endorsements to be surrendered to the Minister for cancellation if other components of the fishing business are transferred to another person.(3) The fishing business transfer rules may authorise the Minister to cancel a NSW fishing authority that is a component of a fishing business if any other component of the fishing business is transferred in contravention of the fishing business transfer rules.(4) No compensation is payable by or on behalf of the State for the cancellation of a NSW fishing authority in accordance with the fishing business transfer rules.
35 Possessing fish illegally taken
(1) A person who is in possession of fish which were illegally taken is guilty of an offence.Maximum penalty:
(a) in the case of an individual:(i) 200 penalty units or imprisonment for 6 months (or both) for a first offence, or(ii) 400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or(b) in the case of a corporation:(i) 1,000 penalty units for a first offence, or(ii) 2,000 penalty units for a second or subsequent offence.(2) It is a defence to a prosecution for an offence under this section if the person charged satisfies the court that the person could not reasonably have known that the fish had been illegally taken.(3) In this section:illegally taken means taken in contravention of a provision of or made under:
(a) this Act, or(b) a law of another State or Territory, or of the Commonwealth, relating to fisheries.
36 Defence for accidental etc taking of fish
(1) It is a defence to a prosecution for an offence against this Act or the regulations relating to the taking of fish if the person charged satisfies the court that, on becoming aware of the taking of the fish, the person took immediate steps to return the fish to its natural environment with the least possible injury.(2) The defence provided under subsection (1) extends to fish taken and immediately released in the course of a sport fishing activity (being an activity conducted in accordance with any requirements of the regulations).(3) The defence provided under subsection (1) is not available in proceedings for an offence under Part 7A.Note. See Division 4 of Part 7A for defences to offences under that Part.
37 Defence—special permits for research or other authorised purposes
(1) The Minister may issue to any person a permit which authorises the person to take and possess fish or marine vegetation of any kind or of a specified kind for any or all of the following purposes:(a) research purposes,(b) aquaculture purposes,(c) aquarium collection purposes,(c1) Aboriginal cultural fishing purposes,(d) any purpose prescribed by the regulations,(e) any other purpose approved by the Minister that is consistent with the objects of this Act.(2) A permit may authorise the holder to take fish or marine vegetation by any method or by any specified method, from any waters or any specified waters or in any other specified way, despite any provision of or made under this Act to the contrary.(2A) A permit may authorise a specified person or a specified class of persons, in addition to the permit holder, to take and possess fish or marine vegetation as authorised by the permit.(3) It is a defence to a prosecution for an offence against this Act or the regulations if the person charged satisfies the court that the act or omission of the person constituting the offence was authorised by a permit under this section.(3A) An application for a permit under this section is to be in a form approved by the Minister.(4) A permit under this section:(a) is subject to such conditions as are prescribed by the regulations or specified in the permit, and(b) remains in force for the period of 1 year or such other period as is specified in the permit, and(c) may be cancelled or suspended by the Minister at any time by notice given to the permit holder.(5) The Minister may from time to time, by notice given to the permit holder, vary the conditions of a permit under this section.(6) The regulations may make provision for or with respect to permits under this section.(7) The power to issue permits under this section is limited by section 220ZW (Licence to harm threatened species etc).(8) The Minister is not to issue a permit to a person for Aboriginal cultural fishing purposes if to authorise the fishing activities and practices concerned would be inconsistent with native title rights and interests under an approved determination of native title (within the meaning of the Native Title Act 1993 of the Commonwealth) or with the terms of an indigenous land use agreement (within the meaning of that Act).
37A Defence—permits authorising sale of fish for charitable purposes
(1) The Minister may issue to a person or body a permit that authorises the sale of fish, by auction, for a charitable purpose.(2) Any such permit may also authorise a person, or any class of persons specified in the permit, to take and possess fish, in connection with the sale of the fish by auction, by any method or by any specified method, from any waters or any specified waters or in any other specified way, despite any provision of or made under this Act to the contrary.(3) A person who takes fish, or is in possession of fish, in connection with a sale authorised by a permit issued under this Part, and in accordance with the authority granted by the permit, is not considered to be taking that fish, or in possession of that fish, for sale.(4) It is a defence to a prosecution for an offence against this Act or the regulations if the person charged satisfies the court that the act or omission constituting the offence was authorised by a permit issued under this section.(5) A permit under this section:(a) is subject to such conditions as are prescribed by the regulations or specified in the permit, and(b) remains in force for the period specified in the permit, and(c) may be cancelled or suspended by the Minister at any time by notice given to the permit holder.(6) The Minister may from time to time, by notice given to the permit holder, vary the conditions of a permit under this section.(7) The regulations may make provision for or with respect to permits under this section. In particular, the regulations may prescribe the fee payable for the issue of a permit.(8) The power to issue permits under this section is limited by section 220ZW (Licence to harm threatened species, population or ecological community or damage habitat).(9) In this section:charitable purpose includes any benevolent, philanthropic or patriotic purpose.
38 Right to fish in certain inland waters
(1) A person may take fish from waters in a river or creek that are not subject to tidal influence despite the fact that the bed of those waters is not Crown land if, for the purpose of taking those fish, the person is in a boat on those waters or is on the bed of the river or creek.(2) The right conferred by this section is subject to the other provisions of this Act.(3) In this section, bed of a river or creek includes any part of the bed of the river or creek which is alternatively covered and left bare with an increase or decrease in the supply of water (other than during floods).
39 Obstruction of recognised fishing grounds
(1) A commercial fisher may request a person to remove anything which has been placed or left by the person, without lawful excuse, on a recognised fishing ground and which is obstructing the lawful net fishing activities of the commercial fisher.(2) A person who fails to remove any such obstruction after being directed by a fisheries officer to do so is guilty of an offence.Maximum penalty: In the case of a corporation, 100 penalty units or, in any other case, 50 penalty units.
(3) A court that convicts a person of an offence against this section may order the person to remove the obstruction. If the obstruction is not removed in accordance with the order, the Minister may cause it to be removed and recover the cost of the removal from the person as a debt in a court of competent jurisdiction.(4) In this section, recognised fishing ground means any area of the sea or of other public water land used regularly or intermittently for net fishing by commercial fishers, being an area identified by or in accordance with the regulations as a recognised fishing ground.
40 Regulations relating to general management of fisheries
(1) The regulations may make provision for or with respect to any matter relating to the management of fishery resources.(2) In particular, the regulations may make provision for or with respect to the following:(a) the development of plans for the management of fishery resources and the establishment of planning committees for that purpose,(b) preventing interference with the fishing activities of fishers,(c) preventing interference with set fishing gear,(d) determining the priority between fishers engaged in fishing activities in the same area,(d1) regulating recreational fishing competitions (including requiring a permit for any such competition and prescribing a fee for the issue of a permit),(d2) prohibiting the possession or receipt of fish illegally taken, processed or dealt with in any place outside the State,(e) prohibiting the use of explosives, electrical devices or other dangerous substances for the purpose of taking fish and regulating the use of explosives, electrical devices and other dangerous substances in any waters,(f) the identification of fishing boats,(g) the tagging or other identification of fish taken from any waters,(h) the identification of containers of fish consigned for sale,(i) the shucking, cutting or other processing of fish before they are landed or sold,(j) the taking and use of bait for fishing,(k) the measurement of fishing gear,(l) the period and manner of any consultation required to be undertaken under this Act so that the persons concerned are fully consulted,(m) the fees payable in respect of an application for, or the issue of, a permit under this Act.