Part 3 Commercial share management fisheries
41 Staged implementation of share management fisheries
This Part provides for the implementation of share management fisheries in the following stages:(a) Stage 1 (Consultation)
the first stage when the Minister consults relevant industry bodies about which fisheries should become share management fisheries.(b) Stage 2 (Identification of fishery and shareholders)
the second stage when a fishery is identified as a share management fishery by the inclusion of a description of the fishery in Schedule 1. During the second stage, an interim Management Advisory Committee for the fishery is established, the criteria for the allocation of shares in the fishery are determined, eligible persons are invited to apply for shares and shares are issued provisionally.(c) Stage 3 (Access to fishery limited to shareholders)
the third stage when access to the fishery is limited to provisional shareholders (and also to any person claiming to be eligible to receive shares). During the third stage, appeals against the provisional issue of shares are determined and a draft management plan for the fishery is prepared.(d) Stage 4 (Full implementation)
the fourth and final stage when the management plan for the fishery commences and the fishing, share transfer and other rights of shareholders are fully identified and exercisable and subject to review.
41A Categories of share management fishery
There are 2 categories of share management fishery, as follows:(a) category 1 share management fisheries,(b) category 2 share management fisheries.Note. The principal differences between category 1 and category 2 share management fisheries are as follows:(a) Shares in a category 1 share management fishery are issued for a 10-year period and are automatically renewed. If the share management fishery is terminated, all the shares in the fishery are cancelled and compensation is payable to the shareholders. Shareholders in the fishery are liable to pay a community contribution for their right of access to the fishery.(b) Shares in a category 2 share management fishery are issued for a 15-year period and are renewable. If the share management fishery is terminated by the Minister, the shares expire at the end of the 15-year period for which they were issued or renewed. Compensation is payable for the termination of the fishery (by its omission from Schedule 1) before the expiry of the current term of the shares, but is not payable for a termination by the Minister after that expiry. Shareholders in the fishery are not liable for a community contribution, but must pay a rental charge for their right of access to the fishery.
Division 2 Declaration of share management fisheries
42 Declaration of share management fisheries
(1) Schedule 1 specifies share management fisheries for the purposes of this Act.(2) The Governor may, by proclamation published on the NSW legislation website on the recommendation of the Minister, amend Schedule 1 by inserting or omitting the description of any fishery.(3) The Minister is required to recommend to the Governor that the description of a fishery be omitted from Schedule 1 if the management plan for the fishery has not commenced within 5 years after the description was inserted in Schedule 1.Note. The first management plan for a fishery cannot be made until the completion of environmental assessment—see section 7G.
(1) The Minister is required to consult relevant commercial fishing industry bodies about which fisheries should become share management fisheries.(2) The Minister is also required to consult relevant commercial fishing industry bodies before a fishery ceases to be a share management fishery.
44 Omission of share management fishery
(1) This section has effect if the description of a share management fishery is omitted from Schedule 1, including an omission for the purpose of redefining an existing share management fishery.(2) When the description of the fishery is omitted, all shares in the fishery are cancelled.(3) If the description of the fishery is omitted after the commencement of the management plan for the fishery, the holders of the cancelled shares are entitled to compensation from the State for the market value before the cancellation of the shares they held.(4) The amount of compensation payable is to be determined by agreement between the Minister and the person entitled to compensation. If the amount of compensation is not agreed, it is to be determined by the Valuer-General.(5) A person entitled to compensation may agree to accept instead shares in another share management fishery which replaces the omitted fishery wholly or partly.(6) A person who is dissatisfied with the amount of compensation offered to the person under this section or with any delay in the payment of compensation may appeal to the Land and Environment Court.(7) The regulations may make provision for or with respect to the payment of compensation in accordance with this section.(8) This section does not apply:(a) if a description of a fishery is omitted from Part 2 of Schedule 1 after the fishery is terminated in accordance with Division 2A, or(b) if a description of a fishery is omitted from Part 2 of Schedule 1 and inserted in Part 1 of Schedule 1 (that is, the fishery is converted in accordance with Division 2A).
45 Redefinition of share management fishery
(1) This Part applies to the redefinition of an existing share management fishery by the replacement, wholly or partly, of the description of that fishery in Schedule 1, subject to any modifications of this Part prescribed by the regulations.(2) The regulations may, in particular, combine any of the stages of implementation of the new share management fishery.
Division 2A Termination and conversion of category 2 share management fisheries
45A Termination of category 2 share management fishery
(1) The Minister may, by order published in the Gazette, terminate a category 2 share management fishery.(2) The termination takes effect when the current term of the shares in the fishery expires.Note. Shares in a category 2 share management fishery are issued for 15-year periods. Under section 73A, if a new management plan is not made by the end of the first 10 years of that 15-year period, and an order has not been made terminating the fishery, the shares are automatically renewed for a further 15 years. The effect of that provision is that shareholders must be given at least 5 years’ notice of the termination of the fishery.(3) When the termination takes effect, the fishery is taken to cease to be a share management fishery.(4) The Minister is to recommend to the Governor that the description of the fishery be omitted from Schedule 1 after the termination takes effect.
45B Regulations relating to terminated fisheries
(1) The regulations may make provision for or with respect to the regulation and management of a category 2 share management fishery that is terminated under this Division.(2) Without limiting subsection (1), the regulations may declare the fishery to be a restricted fishery from the date the termination takes effect.
45C Conversion of category 2 share management fishery to category 1
(1) A category 2 share management fishery may be converted to a category 1 share management fishery.(2) A category 2 share management fishery is converted to a category 1 share management fishery if Schedule 1 is amended so as to omit the description of the fishery from Part 2 of Schedule 1 and insert that description of the fishery in Part 1 of Schedule 1.(3) A category 2 share management fishery cannot be redefined at the time of its conversion to a category 1 share management fishery, but the fishery may be redefined before or after its conversion.
(1) The Management Advisory Committee for a category 2 share management fishery may request the Minister to hold a poll of shareholders on the question of whether the fishery should be converted to a category 1 share management fishery.(2) Within 60 days after the request is made, the Minister is to:(a) direct that the poll be taken, or(b) refer the matter back to the Management Advisory Committee for reconsideration.If the Committee confirms its request, the Minister must, within 60 days, direct that the poll be taken.
(3) For the purposes of a poll under this section:(a) shareholders are entitled to one vote irrespective of the number of shares they hold, and(b) 2 or more persons who hold shares jointly are entitled to only one vote, and(c) a corporation that holds shares is required to nominate an individual to vote in the poll.(4) The conversion of the fishery is supported at a poll if the number of votes in support of the conversion constitutes a majority of the persons eligible to vote in the poll.(5) If the conversion of the fishery is supported at the poll, the Minister is, within 90 days, to recommend to the Governor that the appropriate amendment be made to Schedule 1 to effect the conversion.(6) A poll in respect of a fishery is not to be conducted under this section more than twice during the period in which the management plan for the fishery remains in force.(7) The regulations may make provision for or with respect to:(a) the conduct of polls under this section, and(b) the recovery of the costs of or in connection with a poll from shareholders in the fishery.
45E General provisions relating to conversion
(1) If a category 2 share management fishery is converted to a category 1 share management fishery:(a) the fishery is taken, subject to the regulations, to continue to be a category 2 share management fishery for the purposes of this Part until the commencement of the management plan for the category 1 share management fishery, and(b) the management plan for the category 2 share management fishery continues in force until that commencement (subject to any amendment of that plan in accordance with this Part), and(c) any entitlement to compensation under section 44 for the omission of the fishery from Schedule 1 before that commencement is to be determined on the basis that the fishery remains a category 2 share management fishery.(2) When the management plan for the category 1 share management fishery commences, all shares in the category 2 share management fishery are cancelled.(3) The regulations may make provision for or with respect to the conversion of a category 2 share management fishery to a category 1 share management fishery, including by modifying the application of this Part to the implementation of the category 1 share management fishery.
(1) Giving public notice
As soon as practicable after a fishery becomes a share management fishery, the Minister must give public notice of that fact and invite applications for shares by eligible persons.(2) How given
For the purposes of this section, public notice is notice:(a) published in the Gazette, in a newspaper circulating throughout New South Wales and in such other publications as the Minister considers appropriate, and(b) given to each holder of a commercial fishing licence or, in the case of a restricted fishery, to each person authorised to take fish in the fishery.(3) Content
The public notice must:(a) describe the share management fishery, and(b) state that after the issue of shares in the fishery access to the fishery will be restricted to shareholders, and(c) set out the criteria for the allocation of shares in the fishery (giving full particulars of the method of determining the persons eligible to apply for those shares and their entitlement to shares under this Division), and(d) provide information on the rights and obligations relating to dealings in the shares before the commencement of the management plan for the fishery, and(e) invite applications for shares by eligible persons (and specify the manner and time within which applications are to be made and any application fee), and(f) contain such other information as is prescribed by the regulations or as the Minister considers appropriate.(4) Amendment
A public notice may be varied by a further public notice under this section.
(1) An eligible person may apply to the Minister for the issue of shares in a share management fishery if an invitation for applications has been given by public notice under this Division.(2) The application is to be in writing in the form approved by the Minister and lodged with the Minister within the time specified in the public notice.(3) The application is to be accompanied by the application fee specified in the public notice. Any such fee is not to exceed any maximum fee prescribed by the regulations.(4) The Minister may require the applicant to supply additional information to support the application. The Minister may reject the application if the additional information is not supplied within the time required by the Minister.(5) The Minister may also obtain information from other sources in relation to the application.
48 Provisional issue of shares to applicants
(1) The Minister is to consider each application for shares that has been duly made and issue shares to eligible applicants in accordance with their entitlement to shares under this Division. If the applicant is not eligible to apply for shares, the Minister is to refuse the application.(2) The shares are to be issued on a provisional basis pending the commencement of the management plan for the fishery.(3) The Minister must, as soon as practicable:(a) notify each applicant of the result of the application, and(b) give to each applicant a statement in writing of the names of the applicants who were provisionally issued with shares and of the number of shares issued to each such applicant, together with a statement of any rights of appeal by the applicant to the Share Appeal Panel.(4) Any shares issued as a result of a decision of the Share Appeal Panel are also to be issued on a provisional basis under this section.(5) The Minister may set aside shares available for issue to an eligible person who does not apply for the issue of the shares. The Minister may issue any such shares as the Minister sees fit, including by their issue to other applicants or by their sale by auction, tender or ballot.
(1) The persons eligible to hold shares are not limited to the holders of commercial fishing licences or natural persons.(2) However, the regulations may prohibit a class of persons from holding shares. For example, the regulations may prohibit persons from holding shares if they have a record of offences against this Act or if they are individuals not resident in Australia or they are companies in which any such individuals have a controlling interest.(3) Two or more persons may jointly hold the same share.(4) This section does not affect any disqualification from holding shares under this Act.
50 Method of determining eligibility and entitlement to shares
(1) The determination of the persons eligible to apply for shares in a share management fishery and their entitlement to shares is to be made in accordance with this Division and the criteria specified in the public notice inviting applications for shares.(2) Shares in a fishery are (subject to this section) to be allocated to persons who are the holders of current commercial fishing licences or fishing boat licences and who lawfully took fish for sale in the fishery before it became a share management fishery. If the fish were taken as an employee of some other person, the allocation is to be made to that other person.(3) Shares are (subject to this section) to be allocated to eligible persons in proportion to their catch history in the fishery. If more than one class of fish was caught in the fishery, the allocation is to take into account the value of each class of fish that was part of the catch history.(4) If a restricted fishery becomes a share management fishery, the persons entitled to shares in the fishery are the persons who, immediately before it ceased to be a restricted fishery, were entitled to take fish for sale in the restricted fishery or, if a person is entitled to take fish for sale in the restricted fishery as the employee or nominee of some other person, that other person. The allocation of shares to any such persons may be made having regard to existing entitlements in the restricted fishery.(5) However, if a restricted fishery is described as an exploratory or developmental fishery, the entitlement to shares in the fishery is to be determined in accordance with the regulations.(6) If a share management fishery is redefined, the entitlement to shares is to be determined in such manner as the Minister considers equitable having regard to the proportion of shares held in an existing fishery being redefined, the proportion of the redefined fishery to which the old shares applied, the catch history of shareholders and any other factor the Minister considers relevant.(7) If a category 2 share management fishery is converted to a category 1 share management fishery after the commencement of limited access to the fishery, the persons entitled to shares in the fishery are the persons who are shareholders in the category 2 share management fishery. The allocation of shares to any such person is to be made having regard to the shares held by the person in the category 2 share management fishery.(8) For the purpose of allocating shares in a share management fishery, if the catch history of a person is a component of a fishing business, the catch history of the person is taken to be the catch history of the person (or persons) who own that fishing business when shares are allocated.
(1) The catch history of a person is (subject to the regulations) to be determined under and in accordance with the criteria specified by the Minister in the public notice inviting eligible persons to apply for shares.(2) The criteria are to specify the period before the fishery becomes a share management fishery during which the catch history of a person is to be determined. The criteria may allow persons to choose their best catch history for a specified part of the relevant period.(3) (Repealed)(4) The catch history of a person is, subject to any appeal under this Part, to be determined by the Minister having regard to the records, kept by the Director-General, of fish taken by the person or such other documents as are prescribed by the regulations.(5) The Minister may increase the catch history of a person for any period during which the person was unable to engage in the person’s usual fishing activities because of the person’s duties as a representative of the commercial fishing industry.
(1) After all appeals to the Share Management Fisheries Appeal Panel have been disposed of in connection with a share management fishery, the Minister is to make the final issue of shares to eligible persons with effect from the commencement of the management plan for the fishery.(2) For that purpose, the Minister may redetermine the provisional issue of shares and cancel shares so issued or issue new shares.(3) The Minister must, as soon as practicable:(a) notify each applicant for shares of the final result of the application, and(b) give to each applicant a statement in writing of the names of the persons who were finally issued with shares and of the number of shares issued to each such person.(4) The Minister must also, as soon as practicable, publish in the Gazette the names of all the persons who were finally issued with shares and the number of shares issued to each such person.(5) A person who was the holder of provisional shares in a fishery is not entitled to compensation because of a redetermination of the provisional issue of shares (whether under this section or as a result of any legal proceedings).(6) Shares are to be in such form as the Minister approves.
(1) Despite section 52, the Minister may cancel provisional shares or issue final shares in a share management fishery, and the management plan for that fishery may be made, even if any appeal relating to the issue of provisional shares is still outstanding.(2) If the Minister considers that a person’s entitlement to shares may be affected by any such appeal, the Minister may issue shares in the fishery as shares subject to appeal.(3) Shares subject to appeal are subject to the following special conditions:(a) the transfer of, or any other registrable dealing in, the shares is only permitted with the consent of the Minister,(b) no compensation is payable by or on behalf of the State for cancellation of the shares for any reason, including:(i) cancellation by the Minister resulting from a determination in relation to the appeal, or(ii) cancellation due to the termination of the fishery as a share management fishery,(c) any other conditions prescribed by the regulations.(4) On completion of the relevant appeal:(a) the Minister must cancel the shares subject to appeal, and(b) the Minister may, if appropriate, issue a person with shares in accordance with this Act.
Division 4 Limited access to fishery after issue of shares
53 Commencement of limited access to fishery
(1) Shares issued provisionally in a share management fishery do not take effect until a day appointed by the Minister by order published in the Gazette for the commencement of shareholding in the fishery and for limited access to the fishery.(2) The day so appointed is to be at least 6 months after the fishery became a share management fishery, except in the circumstances prescribed by the regulations.
54 Limiting access to shareholders etc before commencement of management plan
(1) After the day appointed for the commencement of limited access to a share management fishery and until the commencement of the management plan for the fishery, the fishery is a limited access fishery.(2) A commercial fishing licence does not authorise a person to take fish in a limited access fishery unless:(a) the licensee is the holder of shares in the fishery (irrespective of the number of shares held) or is an applicant for shares who has duly lodged an appeal to the Share Management Fisheries Appeal Panel and whose appeal is pending, or(b) the licensee is duly nominated in the Share Register by that holder or applicant to take fish on behalf of that holder or applicant,and the licence is duly endorsed under this Part for the taking of fish in the fishery.(3) A holder of shares is not entitled to have his or her licence endorsed to take fish in a limited access fishery (or to nominate another person to do so) if all the shares held by the person were acquired by dealings after the initial issue of shares in the fishery, unless the acquisition is declared by the regulations to be an authorised acquisition for the purposes of this section.Note. An example of an acquisition that may be authorised by the regulations is an acquisition in a fishery that was previously a restricted fishery to which access could previously have been obtained by other fishers.
55 Fishery that is existing restricted fishery
(1) A share management fishery that is also a restricted fishery ceases to be a restricted fishery when it becomes a limited access fishery.(2) The endorsement of a commercial fishing licence to take fish in such a restricted fishery becomes, on the fishery so ceasing to be a restricted fishery, an endorsement under this Part to take fish in the share management fishery. This subsection applies only if the person concerned is entitled under this Part to have the licence so endorsed.(3) Any provisions of the regulations that apply to such a restricted fishery apply (with any necessary modifications) as provisions of the regulations that apply to the limited access fishery, until those provisions are repealed.
56 Preparation of draft management plan
(1) The Minister is to arrange for the preparation of a draft management plan for a share management fishery as soon as practicable after the fishery becomes a limited access fishery.(2) The Minister may arrange for the preparation of a new draft management plan for the fishery following a fishery review in accordance with this Part.
(1) The management plan for a share management fishery may make provision for or with respect to the following:(a) the objectives of the plan,(b) the classes of shares in the fishery and the provisions of the plan applicable to each such class,(c) the rights of shareholders to take fish or nominate others to take fish in the fishery,(d) the fish that may be taken in the fishery,(e) the area for taking fish in the fishery,(f) the times or periods for taking fish in the fishery,(g) the use of boats and fishing gear in the fishery,(h) the conduct of fishery reviews for the purposes of the preparation of a new plan,(i) the species or group of species of fish taken in the fishery that are to be subject to a total allowable catch for the commercial fishing sector,(j) the protection of the habitats of the species of fish that may be taken in the fishery (including habitats at all stages of the life history of any such species),(k) the taking of bait for use in the fishery,(l) the matters expressly authorised by this Act to be included in the plan,(m) any other matters relating to the management of the fishery that are consistent with this Act and its objects.(2) A management plan must:(a) include performance indicators to monitor whether the objectives of the plan and ecologically sustainable development are being attained, and(b) specify at what point a review of the management plan is required when a performance indicator is not being satisfied.
(1) The Minister may arrange for the preparation of a draft plan relating to management of all or any specified class of share management fisheries (a supporting plan).(2) A supporting plan may make provision for or with respect to any matter for which a fishery management plan may make provision, but cannot contain any provision that could not be contained in a management plan.(3) A management plan for a fishery may adopt by reference any of the provisions of a supporting plan as in force at a particular time or as in force from time to time and with or without modification.(4) Any provisions so adopted are taken to form part of the management plan for the fishery.(5) A provision of a supporting plan has no effect in relation to a share management fishery except to the extent that the provision is adopted by the management plan for the fishery under this section.(6) The Minister may arrange for the preparation of a new supporting plan following a fishery review under this Part or at such other times as the Minister considers appropriate.
58 Public and industry consultation
(1) The Minister is required to give the public an opportunity to make submissions on any proposed management plan or supporting plan (or proposed new plan) and to take any submission that is duly made into account.(2) The Minister is required to consult relevant commercial or recreational fishing bodies, and bodies representing indigenous and conservation interests, about any such proposed plan, including, in the case of a proposed management plan (or proposed new management plan), the Management Advisory Committee for the fishery to which it relates.
60 Making of plan by regulation
(1) A management plan for a fishery, or a supporting plan, including any amendment or new plan, is to be made by a regulation.(2) Any such regulation is not repealed by the operation of Part 3 of the Subordinate Legislation Act 1989.
61 Commencement of management plan or supporting plan
(1) A management plan for a fishery commences when the regulation making the plan commences.(2) A supporting plan commences when the regulation making the plan commences.
62 Plan prevails over other regulations and closures
(1) If a provision of the management plan for a fishery (or a provision of a supporting plan adopted by the management plan) is inconsistent with any other regulation under this Act or any fishing closure, the management plan prevails.(2) However, the management plan does not prevail over a provision of a regulation or fishing closure which is expressed to have effect despite the management plan.(3) Before a provision referred to in subsection (2) is made, the Minister is required to consult with the Management Advisory Committee for the fishery and certify in writing to the Governor that the matter cannot be delayed until a new management plan is made. Any such provision in a fishing closure must be approved by the Governor.(4) Subsection (3) does not apply to a provision that deals with an environmental emergency and which has effect for a period not exceeding 8 weeks.
(1) A management plan for a fishery is not to be replaced by a new plan until at least 5 years after the existing plan was made, unless the existing plan otherwise provides.(2) The Director-General is to arrange a review into each share management fishery at such times as the management plan for the fishery provides and, subject to that plan, at such other times as the Minister determines. A review must be held before the term of the shares in the fishery is due to expire.(3) The Director-General is to constitute a representative group of persons to assist in the conduct of the review. The group is to include representatives of the Management Advisory Committee for the fishery, and any other relevant commercial or recreational fishing industry bodies, as appropriate.(4) The Director-General is to report to the Minister on the review.(5) The Minister is to consider the report of the review and take such action (including the preparation of a new management plan) under this Act with respect to the fishery the subject of the review as the Minister considers appropriate.
A management plan for a fishery or supporting plan may not be directly amended unless the amendment is of a kind authorised by the plan.
(1) A shareholder in a share management fishery is guilty of an offence if the shareholder (or a person nominated by the shareholder to take fish in the fishery) contravenes a provision of a management plan for the fishery, being a contravention that is a designated contravention.Maximum penalty: In the case of a corporation, 1,000 penalty units or, in any other case, 500 penalty units.
(2) A designated contravention is a contravention of a provision of a management plan that is designated as an offence by:(a) the management plan, or(b) a supporting plan (if adopted by the management plan).(3) A management plan or supporting plan may also designate whether any such offence is an offence for which the shares of the shareholder are liable to forfeiture under this Act.
Division 6 Fishing and other shareholding rights
66 Who may fish in share management fisheries after commencement of management plan
After the commencement of the management plan for a share management fishery, a commercial fishing licence does not authorise a person to take fish in the fishery unless:(a) the licensee is the holder of shares in the fishery or is duly nominated by that holder to take fish on behalf of that holder, and(b) that holder has not less than the minimum shareholding in the fishery required under this Division, and(c) the licence is duly endorsed, in accordance with this Division, for the taking of fish in the fishery.
67 Minimum shareholding required to fish after commencement of management plan
(1) A person who holds shares in a share management fishery is not entitled, after the commencement of the management plan for the fishery, to take fish in the fishery or to nominate another person to do so on his or her behalf unless the person has the minimum shareholding for that fishery fixed by the management plan.(2) A separate minimum shareholding may be fixed in respect of a person who acquires shares after the initial issue of shares or a different minimum shareholding may be fixed for any such shareholding. Different minimum shareholdings may also be set for different classes of shares.(3) Minimum shareholdings may be fixed so that the minimum is increased during subsequent periods.(4) A management plan may provide that the requirement for a minimum shareholding may be satisfied by taking into account the shareholder’s shares in other share management fisheries or shareholder’s entitlements or catch history in other fisheries.
(1) The Minister may endorse a commercial fishing licence for the taking of fish in a share management fishery.(2) (Repealed)(3) A licence may be so endorsed only if:(a) the licensee is the holder of shares in the share management fishery or is duly nominated by that holder to take fish on behalf of that holder, and(b) the shareholder has not less than the minimum shareholding in the share management fishery required under this Division, or the minimum such shareholding for the class of shares concerned, and(c) any community contribution, management charge or other amount due and payable by the holder under this Part has been paid.(4) The licence of the holder of shares may not be endorsed if the holder has duly nominated some other commercial fisher to take fish on behalf of that holder. This subsection is subject to the management plan for the fishery.(4A) The licence of the holder of shares (or of a person nominated by the holder) may not be endorsed if the holder is not eligible for an endorsement as a consequence of a contravention of the fishing business transfer rules.(4B) The licence of a shareholder may not be endorsed if the shareholder is already authorised, by endorsement, to take fish in another share management fishery, unless the further endorsement is authorised by the management plan for each fishery in which the shareholder is, or will (as a consequence of the further endorsement), be authorised to take fish.(4C) Subsection (4B) does not prevent a shareholder from nominating another person to take fish on behalf of the shareholder in any fishery in which the shareholder is prevented from holding an endorsement, subject to compliance with any requirements under section 69.(5) An application for an endorsement is to be made in the form and manner approved by the Minister and accompanied by the fee prescribed by the regulations.(6) An endorsement:(a) remains in force for the period specified in the endorsement, and(b) may be renewed by the grant of an endorsement for a further period.(6A) The authority conferred by such an endorsement is subject to such conditions as are prescribed by the regulations or specified in the endorsement.(6B) The Minister may, at any time by notice in writing to the holder of a licence who is authorised by an endorsement to take fish in a share management fishery, revoke or vary the conditions of the endorsement or add new conditions. This subsection does not apply to conditions prescribed by the regulations.(6C) The holder of a commercial fishing licence who contravenes any condition of an endorsement on the licence under this section is guilty of an offence.Maximum penalty:
(a) 200 penalty units or imprisonment for 6 months (or both) for a first offence, or(b) 400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence.(7) An endorsement may be suspended or cancelled by the Minister:(a) if the holder of the licence ceases to be eligible to have the licence endorsed, or(b) if the shareholder fails to pay any community contribution, management charge or other amount due under this Part, or(c) for any other reason authorised by the management plan for the fishery or the fishing business transfer rules.(8) If an endorsement of a shareholder is suspended or cancelled, the shareholder is not entitled to nominate another person to take fish on the shareholder’s behalf.(8A) An endorsement of the licence of a shareholder, or of the licence of a nominated fisher of a shareholder, may also be revoked by the Minister on a request made by the shareholder in accordance with the requirements (if any) of the management plan for the fishery.(8B) The Director-General is to record particulars of any endorsement under this section, and any suspension, cancellation or revocation of an endorsement, in the Share Register.(8C) The Minister may approve arrangements under which a person who is eligible for an endorsement is given such an endorsement in the form of a separate document from the commercial fishing licence of the person. Any such document is taken to be an endorsement on the commercial fishing licence of the person authorised by the endorsement to take fish in the fishery, and references in this Act or the regulations to an endorsement extend to an endorsement in that form.(9) Until the commencement of the management plan for a fishery, the Minister may determine the matters required by this section to be determined by the plan. During that period, the requirement for a minimum shareholding does not apply and this section has effect subject to any other necessary modification.
69 Nomination of commercial fisher by holder of shares
(1) The holder of shares in a share management fishery may nominate a commercial fisher to take fish in the fishery on behalf of that holder.(2) After the commencement of the management plan for the fishery, the holder may not do so unless the holder has at least the minimum shareholding in the fishery required under this Division.(3) The nomination is to be made in a form and manner approved by the Director-General.(4) The holder may nominate 2 or more commercial fishers in respect of the same shareholding if authorised to do so under the management plan for the fishery.(5) The holder may nominate a commercial fisher who is a shareholder in the same fishery. In that case, the shares of the nominated fisher do not, while the fisher is so nominated and unless the management plan for the fishery otherwise provides, confer any entitlement to take fish in the fishery.(6) However, the holder (the nominating shareholder) may not:(a) nominate a commercial fisher who is nominated by another shareholder in the same fishery, unless authorised to do so by the management plan for the fishery, or(b) nominate a commercial fisher who is nominated by another shareholder in another fishery, unless authorised to do so by the management plan for each fishery in which the commercial fisher will be authorised to take fish as a consequence of the nominations.(7) The management plan for a fishery may make further provision for nominations under this section, and for the revocation of nominations, including by requiring a shareholder to keep a record of a nomination or revocation of a nomination.(8) The Director-General is to record any nomination under this section, and any revocation of the nomination, in the Share Register.(9) Until the commencement of the management plan for a fishery, the Minister may determine the matters that, under this section, may be provided for by the plan.
70 Special endorsements to take fish in share management fishery
(1) The Minister may endorse a commercial fishing licence for taking fish for sale in a share management fishery even though the commercial fisher is not entitled under this Part to have the licence so endorsed.(2) The Minister may do so only if the Minister is satisfied, after consultation with the Management Advisory Committee for the fishery, and with any other relevant commercial or recreational fishing industry bodies, that an available fisheries resource would not otherwise be utilised.(3) A commercial fishing licence endorsed under this section authorises the holder to take fish in accordance with the authority conferred by the endorsement.(4) An endorsement under this section:(a) is subject to such conditions as are prescribed by the regulations or specified in the endorsement, and(b) remains in force for the period of 6 months or such shorter period as is specified in the endorsement, and(c) may be cancelled or suspended by the Minister at any time.(4A) The Minister may, at any time by notice in writing to the holder of a licence who is authorised by an endorsement under this section to take fish in a share management fishery, revoke or vary the conditions of the endorsement or add new conditions. This subsection does not apply to conditions prescribed by the regulations.(4B) The holder of a commercial fishing licence who contravenes any condition of an endorsement on the licence under this section is guilty of an offence.Maximum penalty: 100 penalty units.
(5) The regulations may make provision for or with respect to endorsements under this section. In particular, the regulations may prescribe the fee payable for such an endorsement.(6) The Minister may approve arrangements under which a person who is proposed to be given an endorsement under this section is given the endorsement in the form of a separate document from the commercial fishing licence of the person. Any such document is taken to be an endorsement on the commercial fishing licence of the person authorised by the endorsement to take fish in the fishery, and references in this Act or the regulations to an endorsement extend to an endorsement in that form.
71 Transfer and other dealings in shares
(1) A share in a share management fishery may be transferred, assigned, transmitted or mortgaged and any other interest of a kind prescribed by the regulations may be created in the share.(2) Without limiting subsection (1), shares may be transferred for the purpose of enabling 2 or more shareholders to hold their shares jointly.(3) A transaction that transfers, assigns, transmits, mortgages or otherwise creates an interest in a share in a share management fishery is required to be registered in the Share Register under Division 10.(4) This section is subject to any restriction imposed by the management plan for the fishery.(5) Before the commencement of the management plan for the fishery, this section applies only to the extent authorised by the regulations.
71A Issue of further classes of shares in fishery
(1) A management plan for a share management fishery may provide for the creation and issue of further classes of shares in the share management fishery.(2) Any such further classes of shares in the fishery are to be allocated to shareholders on the basis of criteria provided for by the management plan.(3) The criteria are to provide for the recognition of catch history of persons in the fishery during the period from 1986 to 1993 (both years inclusive) or during such other period as the plan provides.(4) For the purpose of allocating shares in the fishery, if the catch history of a person is a component of a fishing business, the catch history of the person is taken to be the catch history of the person (or persons) who own that fishing business when shares are allocated.(5) If a management plan provides for the issue of further classes of shares in a share management fishery, it is to include provision for the making of appeals to the Share Appeal Panel against decisions made under the plan in relation to the allocation of the shares.
72 Maximum shareholding permitted
(1) The maximum shareholding in a share management fishery is the maximum shareholding fixed in the management plan for the fishery.(2) If no maximum shareholding is fixed in the plan, the maximum shareholding is 5% of the number of shares in the fishery at the commencement of the plan.(3) The maximum shareholding in a fishery fixed under this section does not apply to or affect the provisional issue of shares or the final issue of shares on the commencement of the management plan for the fishery, or the transfer of those shares to another person.(4) If the maximum shareholding is decreased at any time after it is fixed, the decrease in that maximum does not affect an existing shareholder. While any such existing shareholder continues to hold those shares, the maximum shareholding in respect of that shareholder is the previous maximum shareholding.(5) Shares in a share management fishery in excess of the maximum shareholding may not be issued to a person by the Minister or recorded in the Share Register.(6) Any excess shares are to be cancelled by the Minister. However, the Minister may allow a person who has acquired excess shares to dispose of those shares in accordance with this Part.(7) For the purposes of this section, the shareholding of a person is taken to include the shareholding of any other person who has an interest in the shares of the first-mentioned person (within the meaning of the Banks (Shareholdings) Act 1972 of the Commonwealth).
73 Duration of shareholding—category 1 share management fishery
(1) Shares in a category 1 share management fishery are to be issued initially for a period of 10 years (calculated from the commencement of the management plan for the fishery).(2) If during that 10-year period (or any subsequent period for which the shares are renewed) a fishery review is conducted and a new management plan is made under this Part, the shares are taken to be renewed (from the date the new plan commences) for a further period of 10 years and the balance of the current period is terminated.(3) If a new management plan is not made by the end of that 10-year period (or any subsequent period for which the shares are renewed), the shares are taken to be renewed, at the end of their current period, for a further period of 10 years.
73A Duration of shareholding—category 2 share management fishery
(1) Shares in a category 2 share management fishery are to be issued initially for a period of 15 years (calculated from the commencement of the management plan for the fishery).(2) If by the end of the first 10 years of that 15-year period (or any subsequent period for which the shares are renewed):(a) a new management plan has not been made under this Part, and(b) there is no order in force under Division 2A that terminates the fishery at the end of current term of the shares in the fishery,the shares are taken to be renewed for a further period of 15 years and the balance of the current period is terminated.(3) If by the end of the first 10 years of that 15-year period (or any subsequent period for which the shares are renewed) a fishery review has been conducted and a new management plan has been made under this Part, the shares are taken to be renewed (from the date the new plan commences) for a further period of 15 years and the balance of the current period is terminated.
(1) The holder of shares in a share management fishery may surrender those shares to the Minister.(2) The Minister is, if requested by the shareholder, to sell those shares by public tender and pay 85% of the purchase price to that holder. The balance of the purchase price (after deduction of the expenses reasonably incurred in connection with the sale) is to be credited to the Consolidated Fund.(3) However, if that holder does not request the Minister to sell the shares, the shares are to be cancelled and new shares are not to be issued in their place.
75 Forfeiture of shares for certain contraventions of Act
(1) For the purposes of this section, an offence against this Act or the regulations is a share forfeiture offence for a fishery if it is designated in the management plan for the fishery as such an offence.(2) A court which convicts a shareholder in a share management fishery, or a commercial fisher taking fish in the fishery on behalf of the shareholder, of a share forfeiture offence may order that the shares (or any of the shares) of the shareholder be forfeited.(3) A court which orders the forfeiture of any such shares may also order that the holder of the shares is not eligible to hold shares in the fishery for the period specified by the court.(4) The regulations may also provide for the forfeiture of shares by the Minister:(a) for any record of convictions of a shareholder in a share management fishery, or a commercial fisher taking fish in the fishery on behalf of the shareholder, for share forfeiture offences, or(b) for any failure by the shareholder to pay a community contribution or other amount due under this Part (but only to the extent of the amount due).(5) The Minister may cancel or sell forfeited shares to which this section applies.(5A) Any forfeited shares sold by the Minister are to be sold by public tender.(6) The purchase price is to be paid to the credit of the Consolidated Fund, subject to this section.(7) If any amount is due under this Part in respect of the forfeited shares that would, on payment, be paid into the Commercial Fishing Trust Fund, that amount is to be deducted from the purchase price and paid to the credit of the Commercial Fishing Trust Fund, and the balance after payment is to be paid to the credit of the Consolidated Fund.(8) If shares are forfeited for a failure by the shareholder to pay a community contribution or other amount due under this Part, the following provisions apply:(a) any community contribution due under this Part is to be deducted from the purchase price and paid to the credit of the Consolidated Fund,(b) any other amount due under this Part that would, on payment, be paid into the Commercial Fishing Trust Fund, is to be deducted from the purchase price and paid to the credit of the Commercial Fishing Trust Fund,(c) any reasonable costs incurred by or on behalf of the Minister in connection with the sale of the shares are to be deducted from the purchase price and paid to the credit of the Consolidated Fund,(d) the balance (if any) remaining after payment of the amounts referred to in paragraphs (a)–(c) is to be paid to the shareholder.(9) The regulations may authorise or require the payment of any part of the purchase price to a person (other than the shareholder) who had an interest in the shares. Any such payment may be made only after payment of the amounts referred to in subsection (8) (a)–(c).(10) The Minister may recover from a person, as a debt in any court of competent jurisdiction, any reasonable costs incurred by or on behalf of the Minister in selling shares forfeited by the person, being costs not otherwise recovered as provided by this section.(11) The Minister is not liable to pay any community contribution or other amount under this Act that becomes payable in respect of forfeited shares following the forfeiture.
Division 7 Management charges and community contributions
(1) The Minister may, subject to this section, determine the management charge payable by holders of shares in a share management fishery. The charge is payable annually, or as otherwise determined by the Minister.(2) The management charge is to be such amount as the Minister considers necessary to meet the costs of management for that fishery, being costs of management that are attributed to industry by the management plan for the fishery.(3) The management charge is not to exceed the amount prescribed by the management plan for the fishery.(4) The management charge is payable by shareholders in proportion to their shareholding or as otherwise provided by the management plan.(4A) The management charge may be fixed to provide for, and the provisions of a management plan relating to the management charge may facilitate, either or both of the following:(a) the calculation of a single management charge for more than one share management fishery (that is, so that holders of shares in more than one share management fishery are not liable to pay a separate management charge in respect of each fishery),(b) the calculation of a single management charge for a single fishing business (even if the fishing business is comprised of, or includes, shares in more than one share management fishery).(5) The management plan may authorise the payment of management charges by instalments.(6) If a management charge, or an instalment of a management charge, is unpaid after the due date for its payment, the Minister may charge interest on the overdue amount at the rate payable from time to time in respect of judgments of the Supreme Court or, if some other rate is prescribed by the management plan for the fishery, that rate.(7) Interest may be charged under subsection (6) for each day that has elapsed between the date on which payment is due and the date of payment.(7A) Interest charged on an overdue management charge, or an instalment of a management charge, under subsection (6) is taken to be part of the management charge.(8) Until the commencement of the management plan for a fishery, the Minister may (after consultation with the Management Advisory Committee for the fishery) determine the matters that may be provided for by the plan.
77 Community contribution for access to category 1 share management fishery
(1) Shareholders in a category 1 share management fishery are required to make a periodic contribution for their right of access to the fishery (a community contribution).(2) The community contribution is payable after the commencement of, and in accordance with, the management plan for the fishery.(3) The community contribution is to be credited to the Consolidated Fund.(4) The community contribution is to be based on the size of the shareholding in the fishery, or as otherwise provided by the management plan for the fishery.(5) The rate of the community contribution, method of its payment and other matters concerning its payment are to be prescribed by the management plan, and not otherwise.(6) The management plan for the fishery may exempt a shareholder from making the community contribution (or reduce any such contribution) if the full rights to take fish in the fishery in accordance with the shareholding have not been exercised during the relevant period.(7) The Treasurer’s concurrence is required before any provisions relating to community contributions are inserted in a management plan.
77A Rental charge for access to category 2 share management fishery
(1) Shareholders in a category 2 share management fishery are required to pay a rental charge for their right of access to the fishery.(2) The amount of the rental charge, the method of its payment and other matters concerning its payment are to be provided for by the management plan.(3) The maximum rental charge is $100 for a 12-month period.(4) The management plan for a fishery may provide for the adjustment of the maximum rental charge to take into account changes in the consumer price index. In that case, the maximum rental charge is the amount so adjusted.(5) A person is exempt from paying the rental charge:(a) if the person holds shares in another category 2 share management fishery and has paid a rental charge for the same period in respect of that other fishery (unless the management plan otherwise provides), or(b) in such other circumstances as may be provided for by the management plan.(6) This section applies in respect of a category 2 share management fishery:(a) if the fishery is, before the commencement of limited access to the fishery, also a restricted fishery—on and from the day the fishery becomes a share management fishery, or(b) in any other case—on and from the day appointed for the commencement of limited access to the fishery.(7) Until the commencement of the management plan for the fishery, the Minister may determine the matters that under this section may be provided for by the plan.(8) For the purposes of this section:(a) an applicant for shares in a category 2 share management fishery who has duly lodged an appeal to the Share Appeal Panel, and whose appeal is pending, is taken to be a shareholder in the fishery, and(b) if a category 2 share management fishery is also a restricted fishery—a person authorised to take fish in the fishery or, if a person is authorised to take fish in the fishery as the employee or nominee of some other person, that other person is taken to be a shareholder in the fishery.
Division 8 Allocation of total allowable commercial catch among shareholders
78 Allocation of total allowable catch among shareholders in fishery
(1) This section applies to any determination of the total allowable catch of fish for the commercial fishing sector that is required under the management plan for a share management fishery.(2) The Minister is to allocate among shareholders in all relevant share management fishery the whole total allowable catch of fish for the commercial fishing sector.(3) An allocation among shareholders in a particular fishery is to be made in proportion to the shareholdings of the persons concerned.(3A) The management plan for a fishery that includes different kinds of fish may, for the purposes of this section, provide for different classes of shareholders in the fishery having regard to the kind of fish taken by the shareholders (including in connection with any catch history on which the criteria for shareholding in the fishery was based). The management plan may provide (despite subsection (3)) for the allocation of the total allowable catch of a particular kind of fish among the relevant class of shareholders only.(4) If 2 or more fisheries are involved in the allocation, the total amount allocated to each fishery is to be determined by the TAC Committee having regard to the relative composition of the catch of fish for each fishery concerned.(5) An allocation is to be made to all shareholders, whether or not they hold the minimum shareholding required to fish in the fishery.(6) The Minister may delay making an allocation and not restrict the catch of shareholders.(7) However, if it appears that the total allowable catch may be exceeded because of any such delay, the Minister is to allocate the balance of the total allowable catch during the remaining fishing period to which it applies in accordance with this section. A shareholder is not entitled to any such allocation if the shareholder would become entitled to take more fish than the shareholder would have been entitled to take if the allocation had not been delayed.(8) If any shares have been forfeited or surrendered, but not yet sold, an allocation is to be made in respect of those shares and dealt with in such manner as the Minister thinks fit.(9) An allocation is to be notified in writing to each shareholder concerned.
(1) A shareholder in a share management fishery may transfer to any other shareholder in that fishery the whole or any part of his or her allocation under this Division of the total allowable catch concerned in accordance with the management plan for the fishery.(2) Subject to the management plan:(a) a shareholder may not acquire by any such transfers more than twice the amount of the shareholder’s actual allocation, and(b) a transfer may not be made after the end of the fishing period to which the allocation relates.(3) A transaction that purports to have the effect of transferring the whole or any part of an allocation does not have effect until it is notified in writing to the Director-General.
80 Carry over to, or borrowing from, future allocations
(1) The management plan for a share management fishery may authorise a shareholder in the fishery:(a) to transfer to the next fishing period any part of the allocation of the total allowable catch for the current fishing period that is not taken during the current period, or(b) to transfer to the allocation of the total allowable catch for the current fishing period part of the allocation for the next fishing period.(2) Subject to any such management plan, a transfer under this section takes effect when it is notified to the Director-General in writing by the shareholder.
81 Payment for fish caught in excess of allocation or forfeiture of shares
(1) A shareholder who, during any period, takes more fish than the shareholder’s allocation under this Division (whether personally or by means of a nominated fisher) is required to pay to the Director-General the value of the excess fish so caught. The amount paid is to be credited to the Consolidated Fund.(2) If the amount required to be paid by the shareholder is not paid within the time specified by the Minister in a written notice to the shareholder, the requisite number of shares of the shareholder specified in that notice are forfeited.(3) The requisite number of shares is the number of shares that, if sold by public tender, would in the Minister’s opinion raise an amount equivalent to the amount required to be paid by the shareholder.(4) If the shareholder does not have sufficient shares, the balance of the amount required to be paid by the shareholder may be recovered by the Minister as a debt in a court of competent jurisdiction.(5) The value of fish for the purposes of this section is the value that the Minister considers to be the market value of the fish. If the Minister is satisfied that the shareholder did not intend to exceed the shareholders’ allocation, the Minister is to reduce the value by the amount the Minister considers appropriate for the costs incurred by the shareholder in taking the fish.(6) The Minister is to sell any shares forfeited under this section by public tender. The purchase price (after deduction of the expenses reasonably incurred in connection with the sale) is to be credited to the Consolidated Fund.(7) Before finally selling any such share by public tender, the Minister is required to offer to sell the share to the original holder for the tender price.(8) For the purposes of this section, fish taken by a shareholder include fish taken on behalf of the shareholder by a commercial fisher duly nominated by the shareholder under this Part.(9) Nothing in this section precludes proceedings being taken for an offence against this Act or the regulations.(10) The management plan for a fishery may provide that this section does not apply in specified circumstances to the taking of fish in the fishery.
Division 9 Share Management Fisheries Appeal Panel
A Share Management Fisheries Appeal Panel (the Share Appeal Panel) is established.
83 Composition and procedure of Panel
(1) The Share Appeal Panel is to consist of 3 members, as follows:(a) a person appointed by the Minister as the Chairperson of that Panel, being a person who is neither engaged in the administration of this Act nor in commercial fishing,(b) the Director-General or a nominee of the Director-General,(c) a person appointed by the Minister on the nomination of such relevant commercial fishing industry bodies as the Minister determines, being a person with extensive practical experience in the commercial fishing industry.(2) The Minister may constitute that Panel with different members for different share management fisheries.(3) A person who has a financial interest in a commercial fishery to which an appeal relates is not eligible to be appointed under subsection (1) (c) to that Panel for the purpose of hearing that appeal.(4) Schedule 3 has effect with respect to the members of the Panel.
(1) An applicant for shares in a share management fishery may appeal to the Share Appeal Panel against a decision under this Part relating to the provisional issue of shares in the fishery under section 48.(1A) An appeal cannot be made to that Panel under subsection (1) after the making of a share management plan for the fishery to which the appeal relates. However, the making of a share management plan does not affect any appeal that was made, but not finally determined, before the making of the plan.(2) The regulations may provide for other appeals to that Panel against decisions under this Part relating to a share management fishery.(3) An appeal is to be made within the time and in the manner prescribed by the regulations.(4) An appeal is to be accompanied by such fee or deposit as is prescribed by the regulations.
85 Hearing and determination of appeals
(1) The Share Appeal Panel is to hear each appeal duly made to it.(2) The Panel may, for the purpose of the appeal, exercise the functions of the person who made the decision concerned.(3) That Panel may:(a) uphold the decision, or(b) vary the decision, or(c) set the decision aside and substitute a new decision.(4) A decision as varied or substituted is to be given effect to under this Part.Note. See sections 48 and 52.(5) That Panel is to give to each party to an appeal a written statement of its determination and of the reasons for its determination.
(1) In proceedings before the Share Appeal Panel:(a) the procedure of that Panel is, subject to this Act and the regulations, to be determined by the Panel, and(b) the proceedings are to be conducted with as little formality and technicality, and as quickly, as the requirements of this Act and the proper consideration of the matter permit, and(c) that Panel is not bound by the rules of evidence but may inform itself on any matter in any way it thinks appropriate.(2) The time, date and place for the hearing of an appeal is to be fixed by the Chairperson of that Panel and notified in writing by the Chairperson to each party to the appeal.(3) The Chairperson of that Panel is to preside at any hearing of an appeal.(4) At the hearing of an appeal, a party to the appeal may appear in person or be represented by an Australian legal practitioner or any other person.(5) Hearings may be conducted in public or in private.(6) The Panel may, with the approval of the appellants, hear 2 or more appeals together.(7) An appeal may be heard and determined despite the absence or vacancy in the office of one of its members (other than the Chairperson). This subsection applies only if the appellant consents to the continuation of the hearing.(8) An appeal may continue to be heard and determined despite a change in the membership of the Panel (other than the Chairperson).(9) An appeal and any question concerning the appeal are to be determined according to the opinion of the majority of the members of the Panel hearing the appeal. If there are only 2 members, they are to be determined according to the opinion of the Chairperson.
87 Power to summon witnesses and take evidence
(1) The Chairperson of the Share Appeal Panel may summon a person to appear at a hearing of an appeal to give evidence and to produce such documents (if any) as are referred to in the summons.(2) The Chairperson of that Panel may require a person appearing at the hearing of an appeal to produce a document.(3) That Panel may, at a hearing, take evidence on oath or affirmation and, for that purpose:(a) the Chairperson of that Panel may require a person appearing at the hearing to give evidence either to take an oath or to make an affirmation in a form approved by the Chairperson, and(b) the Chairperson may administer an oath or affirmation to a person so appearing at the hearing.(4) A person served with a summons to appear at a hearing to give evidence must not, without reasonable excuse:(a) fail to attend as required by the summons, or(b) fail to attend from day to day unless excused, or released from further attendance, by the Chairperson of that Panel.Maximum penalty: 20 penalty units.
(5) A person appearing at a hearing to give evidence must not, without reasonable excuse:(a) when required to take an oath or make an affirmation—refuse or fail to comply with the requirement, or(b) refuse or fail to answer a question that the person is required to answer by the Chairperson of that Panel, or(c) refuse or fail to produce a document that the person is required to produce by a summons served under this section.Maximum penalty (subsection (5)): 20 penalty units.
(1) The Chairperson of the Share Appeal Panel may, by notice in writing served on a person, require the person:(a) to attend, at a time and place specified in the notice, before a person specified in the notice, being the Chairperson or a person authorised by the Chairperson in that behalf, and(b) to produce, at that time and place, to the person so specified a document specified in the notice.(2) A person must not, without reasonable excuse, refuse or fail to comply with a notice served on the person under this section.Maximum penalty: 20 penalty units.
Division 10 Share Management Fisheries Register
89 Establishment and keeping of Share Register
(1) The Director-General is required to establish and keep a Share Management Fisheries Register (the Share Register).(2) The Share Register may be kept wholly or partly by means of a computer.(3) If the Share Register is kept wholly or partly by means of a computer:(a) references in this Act to an entry in the Share Register are to be read as including references to a record of particulars kept by means of the computer and comprising the Share Register or part of the Share Register, and(b) references in this Act to particulars being registered, or entered in the Share Register, are to be read as including references to the keeping of a record of those particulars as part of the Share Register by means of the computer, and(c) references in this Act to the rectification of the Share Register are to be read as including references to the rectification of the record of particulars kept by means of the computer and comprising the Share Register or part of the Share Register.
(1) The Director-General must register any shares in a share management fishery issued by the Minister by entering in the Share Register the following particulars:(a) the name of the person to whom the shares are issued,(a1) if the shares are a component of a fishing business, the number allocated to the fishing business by the Director-General under this Act,(b) the number of shares issued,(c) the share management fishery for which the shares are issued,(d) the period for which the shares are issued,(e) such other particulars (if any) as are prescribed by the regulations.(2) The Director-General must register any renewal of shares in a share management fishery by entering in the Share Register the following particulars:(a) the fact that the shares have been renewed,(b) the period for which the shares are renewed,(c) such other particulars (if any) as are prescribed by the regulations.
91 Registration of dealings in shares
(1) A transaction that purports to have the effect of transferring, assigning, transmitting, mortgaging or otherwise creating an interest in a share in any share management fishery does not have that effect until it is registered in the Share Register.(2) A party to such a transaction may make an application to the Director-General for the transaction to be registered.(3) Such an application must be in a form approved by the Director-General and must be accompanied:(a) by the document that embodies the transaction, and(b) by a document setting out such particulars (if any) as are prescribed by the regulations for the purposes of this paragraph, and(c) by duplicates of the documents referred to in paragraphs (a) and (b), and(d) by such fee (if any) as is prescribed by the regulations.(4) If such an application is approved by the Director-General, the Director-General must:(a) register the transaction by entering in the Share Register particulars of the name of the person acquiring the interest and a description of the transaction, and(b) endorse on the document relating to the transaction and the duplicate of that document the fact of the entry having been made, together with the date and time of the making of the entry.(5) When those entries in the Share Register have been made:(a) the duplicate of the document relating to the transaction is to be retained by the Director-General and made available for inspection in accordance with this Division, and(b) the original document is to be returned to the person who made the application for registration.(6) The Director-General is not to register a dealing in a share in any share management fishery if the dealing would result in a shareholder acquiring more shares in the fishery than is permitted by this Act or if the dealing would otherwise contravene this Act.
(1) The Director-General is taken not to have notice of any kind of trust relating to shares in a share management fishery.(2) Notice of any such trust must not be registered by the Director-General.
93 Power of holder to deal with shares
(1) The holder of any share in a share management fishery may, subject to this Part, deal with the share as its absolute owner and give good discharges for any consideration for any such dealing.(2) Subsection (1):(a) is subject to any rights appearing in the Share Register to belong to another person, and(b) only protects a person who deals with the holder of the share as a purchaser in good faith for value and without notice of any fraud on the part of the holder.(3) Equities in relation to a share in a share management fishery may be enforced against the holder of the right except to the prejudice of a person protected by subsection (2).
94 Surrender of shares to be noted in Share Register
If a share in a share management fishery is surrendered, the Director-General must make an entry in the Share Register to that effect.
95 Cancellation or forfeiture of shares to be noted in Share Register
(1) If a share in a share management fishery is cancelled, forfeited or otherwise ceases to have effect, the Director-General must make an entry in the Share Register to that effect.(2) If, because of a decision made by the Minister or a court, an entry made by the Director-General under subsection (1) is no longer correct, the Director-General must rectify the Share Register.(3) If:(a) the Director-General makes an entry in the Share Register under subsection (1), or rectifies the Share Register under subsection (2), concerning a share, and(b) a person other than the holder of the share has an interest in the share, and(c) the interest is one in relation to which a transaction has been registered under section 91 (Registration of dealings in shares),the Director-General must give the person written notice of the entry or rectification.
96 Director-General not concerned as to the effect of documents lodged for registration
The Director-General is not concerned with the effect in law of any document lodged under section 91 (Registration of dealings in shares) and the registration of the transaction concerned does not give to the document any effect that it would not have if this Division had not been enacted.
97 Inspection of Share Register and registered documents
(1) On payment by a person of the prescribed fee (if any), the Director-General must, during the ordinary business hours of the Director-General’s office, make available for inspection the Share Register and all copies of registered documents retained by the Director-General in accordance with section 91 (Registration of dealings in shares).(2) If the Share Register is kept wholly or partly by means of a computer, this section is taken to be complied with by making the contents of the Share Register available for inspection on the website of the Department.
(1) The Share Register is evidence of any particulars registered in it.(2) If the Share Register is wholly or partly kept by means of a computer, a document issued by the Director-General producing in writing particulars included in the Share Register, or the part kept by means of a computer, is admissible in legal proceedings as evidence of those particulars.(3) A copy of the Share Register or an entry in the Share Register is, if purporting to be signed by the Director-General, admissible in evidence in legal proceedings as if the copy were the original.(4) A copy of a document, or part of a document, retained by the Director-General under section 91 (Registration of dealings in shares) is, if purporting to be signed by the Director-General, admissible in evidence in legal proceedings as if the copy were the original.(5) The Director-General must, on application made by a person in a form approved by the Director-General, provide the person with a document or copy that is admissible in legal proceedings because of this section.
99 Correction of Share Register
The Director-General may correct any error or mistake in the Share Register.
100 Exculpation for liability for anything done under this Division
The Minister, the Director-General and other persons employed in the administration of this Division are not liable in any civil proceedings for anything done or omitted to be done in good faith in the exercise or purported exercise of any function imposed or conferred by this Division.
101 Offences under the Division
A person must not:(a) make, or cause to be made or concur in making, an entry in the Share Register knowing it to be false or misleading in a material respect, or(b) produce or tender in legal proceedings a document knowing that it falsely purports to be an instrument (or copy of an instrument) lodged with the Director-General under this Division or a copy of the Share Register or of an entry in the Share Register.Maximum penalty: 50 penalty units.