Division 535 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.