Part 4 Licensing and other commercial fisheries management
Division 1 Commercial fishing licences
102 Commercial fishers required to be licensed
(1) A person must not take fish for sale from waters to which this Act applies unless the person is authorised to do so by a commercial fishing licence.Maximum penalty:
(a) in the case of an individual:(i) 1,000 penalty units for a first offence, or(ii) 2,000 penalty units 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.(2) This section does not apply to a member of the crew of a boat licensed under Division 2 who takes fish as an employee or agent of the master of the boat.Note. A commercial fishing licence will, under other provisions of this Act, require an endorsement if the holder is to take fish in a share management fishery or in a restricted fishery.
(1) A corporation may not hold a commercial fishing licence.(2) An individual may hold a commercial fishing licence only if:(a) the individual is a shareholder in a share management fishery or is duly nominated by the shareholder under Part 3 to take fish on behalf of the shareholder, or(b) the individual held a fisherman’s licence under section 25 of the Fisheries and Oyster Farms Act 1935 immediately before the repeal of that section by this Act, or(c) the individual is otherwise authorised by the regulations to hold a commercial fishing licence.(3) If an individual is only entitled to a licence under subsection (2) (a), the licence must be restricted to the taking of fish in the share management fishery concerned.
104 Provisions relating to licensing of commercial fishers
(1) Any eligible person may apply to the Minister for a commercial fishing licence.(2) An application is to be in the form approved by the Minister.(3) The Minister is required to issue a licence to an eligible applicant unless the Minister is authorised by the regulations to refuse the application.(4) A commercial fishing licence:(a) is subject to such conditions as are prescribed by the regulations or specified in the licence, and(b) remains in force for such period as is specified in the licence, and(c) may be renewed from time to time in accordance with the regulations, and(d) is not transferable, and(e) may be cancelled or suspended by the Minister in the circumstances authorised by the regulations.(5) The regulations may prescribe different classes of licences.(6) The Minister may, at any time by notice in writing to the holder of a commercial fishing licence, revoke or vary the conditions of or endorsements on the licence or add new conditions or endorsements. This subsection does not apply to conditions prescribed by the regulations.(7) The holder of a commercial fishing licence who contravenes any condition of the licence is guilty of an offence.Maximum penalty: 100 penalty units.
(8) The regulations may make provision for or with respect to commercial fishing licences. In particular, the regulations may prescribe the qualifications relating to fishing activities required for the issue of a licence and the fee or fees payable in respect of an application for the issue or renewal of a licence.
The fact that a person holds a commercial fishing licence is evidence that fish taken by the person or in the person’s possession were fish taken or in possession for sale.
Division 2 Commercial fishing boats
107 Commercial fishing boat to be licensed
(1) The master of a boat must not use the boat for any of the following purposes unless the boat is licensed under this Division:(a) to take fish for sale from waters to which this Act applies,(b) to land fish in New South Wales that were taken from other waters (after the boat departed from a port in New South Wales).Maximum penalty: 100 penalty units.
(2) The regulations may provide that a boat licensed under a law of the Commonwealth or of another State or a Territory is taken to be licensed under this Division.
108 Provisions relating to licensing of boats
(1) The owner of a boat (or a person authorised by the owner) may apply to the Minister for the issue of a licence for the boat.(2) An application is to be in the form approved by the Minister.(3) The Minister is required to issue a licence for a boat if application for the licence is duly made unless the Minister is authorised by the regulations to refuse the application.(4) The licence for a boat:(a) is subject to such conditions as are prescribed by the regulations or specified in the licence, and(b) remains in force for such period as is specified in the licence, and(c) may be renewed from time to time in accordance with the regulations, and(d) may be cancelled or suspended by the Minister in the circumstances authorised by the regulations.(5) The regulations may prescribe different classes of licences for boats.(6) The Minister may, at any time by notice in writing to the holder of a licence for a boat, revoke or vary the conditions of the licence or add new conditions. This subsection does not apply to conditions prescribed by the regulations.(7) The holder of the licence for a boat who contravenes any condition of the licence is guilty of an offence.Maximum penalty: 100 penalty units.
(8) The regulations may make provision for or with respect to licences for boats. In particular, the regulations may prescribe the fee or fees payable in respect of an application for the issue or renewal of a licence.
The fact that a boat is a licensed fishing boat is evidence that fish taken by use of the boat, or landed from the boat, were fish taken for sale.
(1) Each member of the crew of a licensed fishing boat which is being used to take fish must (subject to this section) be registered by the Director-General.(2) A person who is not registered may act as a member of the crew of a boat if a registered crew member is not available when the boat leaves port.(3) Registration is not limited to any particular boat.(4) A crew member is not required to be registered if he or she holds a commercial fishing licence.(5) A commercial fishing licence or the licence for a boat may authorise the use of persons who are not registered as crew members on a boat.(6) Application for registration may be made to the Director-General by the crew member or by the master of the boat.(7) Application for registration is to be in the form approved by the Director-General and accompanied by such fee (if any) as is prescribed by the regulations.(8) The Director-General is required to register a crew member if application is duly made for that registration.(9) If a member of the crew of a licensed fishing boat is not registered when required by this section, the master of the boat is guilty of an offence.Maximum penalty: 50 penalty units.
(10) The regulations may make provision for or with respect to the registration of crew members, the maximum number of crew members to be used on a boat and the records to be kept about crew members.
Division 3 Exploratory, developmental and other restricted fisheries
111 Declaration of restricted fisheries
(1) The regulations may declare that a fishery (not being a share management fishery in respect of which shares issued in the fishery have taken effect) is a restricted fishery for the purposes of this Act.(2) The fishery may be described in the declaration as an exploratory, developmental or other class of restricted fishery.(3) Before a fishery is declared to be a restricted fishery, the Minister is required to consult relevant commercial or recreational fishing industry bodies about the proposed declaration and to notify the proposal publicly.(4) A fishery that is declared to be a restricted fishery ceases to be a restricted fishery if the declaration is revoked by the regulations or if the period (if any) specified by the regulations as the period during which the fishery is a restricted fishery expires.Note. A fishery also ceases to be a restricted fishery if it becomes a limited access share management fishery—see section 55.
112 Commercial fishing licence to be endorsed for restricted fishery
(1) A commercial fishing licence does not authorise a person to take fish for sale in a restricted fishery unless the holder is authorised by the Minister, by an endorsement on the licence, to do so.(2) The authority conferred by such an endorsement is subject to such conditions as are prescribed by the regulations or specified in the endorsement.(3) 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 restricted fishery, revoke or vary the conditions of the endorsement or add new conditions. This subsection does not apply to conditions prescribed by the regulations.(4) 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.(5) The Minister may approve arrangements under which a person who is eligible for an endorsement in a restricted fishery is given 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.
113 Restriction on the number of licences endorsed for restricted fishery
(1) The regulations may fix the maximum number of commercial fishing licences that may be endorsed in respect of a specified restricted fishery.(2) Eligibility for endorsement of commercial fishing licences is to be determined in accordance with the regulations.
114 Endorsements not transferable
An endorsement of a commercial fishing licence under this Division is not transferable, unless authorised by the regulations.
Compensation is not payable by or on behalf of the State because a fishery ceases to be a restricted fishery at the end of the period for which it was declared to be a restricted fishery or at any time during that period.
115A Annual contribution to industry costs
(1) A participant in a restricted fishery must, if the regulations so require, pay to the Minister an annual contribution towards one or more of the following:(a) the costs of taking measures to enhance, maintain or protect the effective management of commercial fishing,(b) the costs of carrying out research into commercial fishing,(c) the costs of management and administration of commercial fishing,(d) the costs of ensuring compliance with commercial fishing regulatory controls,(e) the costs of consultative arrangements with commercial fishers.(2) For the purposes of this section, a participant in a restricted fishery means:(a) a person who has an endorsement on his or her commercial fishing licence that authorises the person to take fish for sale in the restricted fishery, or(b) the owner of a fishing business of which the endorsement is a component.(3) The amount of the contribution is to be specified in or determined under the regulations.(4) The regulations may provide for payment of the annual contribution by instalments.(5) If a contribution, or an instalment of a contribution, 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 regulations, that rate.(6) Interest may be charged for each day that has elapsed between the date on which payment is due and the date of payment.(7) Interest charged on an overdue annual contribution, or instalment of a contribution, under subsection (5) is taken to be part of the contribution.
The regulations may make provision for or with respect to:(a) the endorsement of commercial fishing licences and the cancellation, suspension or transfer of those endorsements, and(b) imposing restrictions on the quantity of fish taken in a restricted fishery or on the method or times for taking those fish, and(c) otherwise giving effect to this Division.
117 Fish receiver to be registered
(1) A person who receives fish, for resale or other commercial use, from a person whom he or she knows or reasonably suspects to be a commercial fisher (or a person acting on behalf of such a commercial fisher) is guilty of an offence unless the fish receiver is registered under this Division.Maximum penalty: In the case of a corporation, 500 penalty units or, in any other case, 100 penalty units or imprisonment for 3 months, or both.
(2) The person is not required to be registered under this Division if:(a) (Repealed)(b) the person has received from all commercial fishers (or persons acting on their behalf) less than the minimum quantity of fish prescribed by the regulations during the period so prescribed, or(c) the fish are received in the person’s capacity as an employee or agent of another fish receiver, or(d) the fish are received for the purpose only of transporting them on behalf of the owner of the fish, or(e) the regulations otherwise provide.
118 Provisions relating to registration
(1) Any person may apply to the Minister to be registered under this Division as a fish receiver.(2) An application is to be in the form approved by the Minister and is to be accompanied by such fee (if any) as is prescribed by the regulations.(3) The Minister is required to register an applicant as a fish receiver unless the Minister is authorised by the regulations to refuse the application.(4) The regulations may prescribe different classes of registered fish receivers.(5) The registration of a fish receiver:(a) is subject to such conditions as are prescribed by the regulations or specified in the certificate of registration, and(b) remains in force for the period of 1 year or such other period as is specified in the certificate of registration, and(c) may be renewed from time to time in accordance with the regulations, and(d) may be cancelled or suspended by the Minister in the circumstances authorised by the regulations.(6) The Minister may, at any time by notice in writing to a registered fish receiver, revoke or vary the conditions of the registration or add new conditions. This subsection does not apply to conditions prescribed by the regulations.(7) A registered fish receiver who contravenes any condition of the registration is guilty of an offence.Maximum penalty: 100 penalty units.
(8) The regulations may make provision for or with respect to the registration of fish receivers.
119 Fish receiver to supply information
(1) A fisheries officer may, by written notice to a registered fish receiver, require the fish receiver:(a) to give the fisheries officer, within such reasonable time as is specified in the notice, such information relating to fish received by the fish receiver as is specified in the notice, and(b) to verify that information by statutory declaration.(2) The regulations may make provision for or with respect to the information to be given by registered fish receivers.(3) A registered fish receiver must not, without reasonable excuse, refuse or fail to give information required by or under this section.Maximum penalty: In the case of a corporation, 500 penalty units or, in any other case, 100 penalty units or imprisonment for 3 months, or both.
The fact that a person is a registered fish receiver is evidence that fish in the person’s possession were fish taken or in possession for sale.
121 Records to be made by commercial fishers
(1) A commercial fisher must make such records as the regulations require in respect of fishing activities engaged in by the commercial fisher for commercial purposes.(2) In particular, the regulations may require a record to be made of the following:(a) particulars of all fishing activities engaged in by a commercial fisher for commercial purposes (including those where no fish were taken),(b) particulars of all fish taken during those fishing activities,(c) the location in which the fishing activities were carried out,(d) the fishing gear used in connection with the fishing activities,(e) any period in which the commercial fisher did not engage in any fishing activities for commercial purposes.(3) The record must be made in such form and manner as is prescribed by the regulations or (subject to the regulations) as is approved by the Minister.(4) A commercial fisher who fails to make a record as required by this section is guilty of an offence.Maximum penalty: 200 penalty units.
(5) A commercial fisher who is required to make a record under this section must, if the regulations so require, ensure that a copy of the record is sent to the Director-General within such period as the regulations prescribe.Maximum penalty: 10 penalty units.
122 Records to be made by employers of commercial fishers
(1) A fishing employer must make such records as the regulations require in respect of fishing activities engaged in by a nominated fisher on behalf of the fishing employer.(2) In particular, the regulations may require a record to be made of the following:(a) particulars of all fishing activities engaged in by a nominated fisher on behalf of the fishing employer (including those where no fish were taken),(b) particulars of all fish taken during those fishing activities,(c) the location in which the fishing activities were carried out,(d) the fishing gear used in connection with the fishing activities,(e) any period in which the nominated fisher did not engage in any fishing activities on behalf of the fishing employer.(3) The record must be made in such form and manner as is prescribed by the regulations or (subject to the regulations) as is approved by the Minister.(4) A fishing employer who fails to make a record as required by this section is guilty of an offence.Maximum penalty: In the case of a corporation, 500 penalty units or, in any other case, 200 penalty units.
(5) A nominated fisher who engages in any fishing activity on behalf of a fishing employer must not fail to provide the fishing employer with such information concerning those activities as the fishing employer may reasonably require to comply with this section.Maximum penalty: 200 penalty units.
(6) A fishing employer who is required to make a record under this section must, if the regulations so require, ensure that a copy of the record is sent to the Director-General within such period as the regulations prescribe.Maximum penalty: 10 penalty units.
(7) In this section:fishing employer means a shareholder in a share management fishery, an owner of a fishing business, or any other person, who nominates a commercial fisher to take fish in a fishery on behalf of the shareholder, owner or other person.
nominated fisher of a fishing employer means a commercial fisher who is for the time being nominated by the fishing employer under this Act or the regulations to take fish in a fishery on behalf of the fishing employer.
122A Records to be made by fish receivers
(1) A registered fish receiver must make such records as the regulations require relating to fish received by the fish receiver.(2) The record must be made in such form and manner as are prescribed by the regulations or (subject to the regulations) as are approved by the Minister.(3) A registered fish receiver who fails to make a record as required by this section is guilty of an offence.Maximum penalty: In the case of a corporation, 500 penalty units or, in any other case, 200 penalty units.
(4) A registered fish receiver who is required to make a record under this section must, if the regulations so require, ensure that a copy of the record is sent to the Director-General within such period as the regulations prescribe.Maximum penalty: 10 penalty units.
123 Records to be made by sellers
(1) A person who sells any fish must make and deliver to the purchaser, on or before the sale, a record concerning the sale by the person of the fish in accordance with the regulations.Maximum penalty:
(a) in the case of an individual:(i) 200 penalty units for a first offence, or(ii) 400 penalty units 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 sells any fish (the seller) must:(a) make, before the sale, or(b) obtain, on or before the sale, from any other person from whom the person acquired the fish,a record concerning the seller’s acquisition of the fish in accordance with the regulations.Maximum penalty:
(a) in the case of an individual:(i) 200 penalty units for a first offence, or(ii) 400 penalty units 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) A person who is required to make or obtain a record under this section must:(a) retain a copy of the record for not less than 5 years after the fish are sold by the person, and(b) during that 5-year period, produce the copy of the record when requested to do so by a fisheries officer.Maximum penalty:
(a) in the case of an individual:(i) 200 penalty units for a first offence, or(ii) 400 penalty units 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) An offence under this section applies whether or not the fish were sold to a purchaser within the State.(5) This section does not apply in respect of oysters.(6) The regulations may provide that this section does not apply in respect of the sale of fish:(a) if the fish are sold in circumstances specified in the regulations, or(b) if the quantity of fish sold does not exceed a quantity specified by the regulations in respect of the fish or class of fish concerned, or(c) in any other circumstances prescribed by the regulations.
123A Records of possession of fish
(1) A person in possession of fish must produce a prescribed record concerning the possession of the fish when requested to do so by a fisheries officer if:(a) the person is a fishing industry participant, or(b) the quantity of fish in the person’s possession is equal to, or more than, a commercial quantity of fish.Maximum penalty:
(a) in the case of an individual:(i) 200 penalty units for a first offence, or(ii) 400 penalty units 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 in respect of a defendant who is not a fishing industry participant if the defendant proves that the fish were in the defendant’s possession otherwise than for the purpose of sale, transportation for reward or storage for reward.(3) It is a defence to a prosecution for an offence under this section in respect of a defendant who is a fishing industry participant if:(a) the defendant was in possession of less than a commercial quantity of fish, and(b) the defendant proves that the fish were in the defendant’s possession otherwise than for the purpose of sale, transportation for reward or storage for reward.(4) An offence under this section applies whether or not the fish were taken from waters to which this Act applies.(5) This section does not apply:(a) to the possession of fish on any premises, or part of premises, occupied solely for residential purposes, or(b) to the possession of oysters.(6) The regulations may provide that this section does not apply in respect of the possession of fish:(a) if the fish are in possession in circumstances specified in the regulations, or(b) if the quantity of fish in possession does not exceed a quantity specified by the regulations in respect of the fish or class of fish concerned, or(c) in any other circumstances prescribed by the regulations.(7) In this section:commercial quantity of fish means the quantity prescribed by the regulations as the commercial quantity for the species of fish, or class of fish, concerned.
fishing industry participant means:
(a) the holder of a fishing authority (within the meaning of Part 9), or(b) a person who carries on the business of selling or processing fish or fish products.
A person who makes an entry in a record, or copy, kept for the purposes of this Division knowing that the entry is false or misleading in a material particular is guilty of an offence.Maximum penalty: 200 penalty units or imprisonment for 3 months, or both.
Division 6 Reviews by Administrative Decisions Tribunal
125 Definition of “relevant authority”
In this Division, relevant authority means:(a) a commercial fishing licence, or(b) an endorsement on a commercial fishing licence, or(c) a fishing boat licence, or(d) the registration of a member of the crew of a boat, or(e) a fish receiver’s registration.
126 Applications to Administrative Decisions Tribunal for reviews of certain decisions
(1) A person who is dissatisfied with any of the following decisions under this Part may apply to the Administrative Decisions Tribunal for a review of the decision concerned:(a) the refusal to issue a relevant authority to the person or to renew the person’s relevant authority,(b) the imposition of conditions on the person’s relevant authority (otherwise than by regulation),(c) the suspension or cancellation of the person’s relevant authority.(2) For the purposes of this section, an application for the issue or renewal of a relevant authority is taken to have been refused if the authority is not issued or renewed within 60 days after the application was duly made.