In this Act:aquaculture means:
(a) cultivating fish or marine vegetation for the purposes of harvesting the fish or marine vegetation or their progeny with a view to sale, or(b) keeping fish or marine vegetation in a confined area for a commercial purpose (such as a fish-out pond),but does not include:(c) keeping anything in a pet shop for sale or in an aquarium for exhibition (including an aquarium operated commercially), or(d) anything done for the purposes of maintaining a collection of fish or marine vegetation otherwise than for a commercial purpose, or(e) any other thing prescribed by the regulations.development plan has the meaning given by section 143.
143 Aquaculture industry development plans
(1) The Minister may, in accordance with this section, determine plans for the development of the commercial aquaculture industry (development plans).(2) A development plan may relate to any aspect of the commercial aquaculture industry, including aquaculture of a particular species of fish or marine vegetation or aquaculture in a particular area.(3) The Minister is to have regard to any relevant development plan in the exercise of the Minister’s functions under this Part.(4) A development plan may contain the following:(a) the objectives of the Minister in the administration of this Part or any provision of this Part,(b) the description of areas suitable for aquaculture and the type of aquaculture for which any such area is suitable,(c) suitable methods for undertaking aquaculture or any type of aquaculture,(d) suitable species of fish or marine vegetation for aquaculture in a particular area,(e) any other matter concerning aquaculture that the Minister considers appropriate.(5) A development plan must:(a) include performance indicators to monitor whether the objectives set out in the plan and ecologically sustainable development are being attained, and(b) specify at what point a review of the development plan is required when a performance indicator is not being satisfied.(6) The Minister may amend or replace a development plan.(7) A development plan (including any amendment or new plan) is to be published in the Gazette.(8) Before the Minister determines a development plan (including any amendment or new plan), the Minister is required to give the commercial aquaculture industry and the public an opportunity to make submissions on the proposed plan (or proposed amendment or new plan) and to take any submission that is duly made into account.(9) The exercise of a function under this Part is not invalid merely because it is inconsistent with a development plan.
Division 2 Aquaculture permits
144 Aquaculture prohibited except in accordance with a permit
(1) A person must not undertake aquaculture except under the authority of an aquaculture permit.Maximum penalty: In the case of a corporation, 200 penalty units or, in any other case, 100 penalty units.
(2) Aquaculture permits may be of such different classes as are prescribed by the regulations.(3) This section applies to aquaculture undertaken in a leased area or in any other area.(4) However, this section does not apply:(a) to aquaculture undertaken by the Minister under a development plan or under Part 8, or otherwise for the purposes of the administration of this Act, or(b) to persons of a class excluded by the regulations from the operation of this section.
(1) Any person may apply to the Minister for an aquaculture permit.(2) An application for a permit must:(a) be in a form approved by the Minister, and(b) be accompanied by a commercial farm development plan describing the manner in which the applicant proposes to undertake the aquaculture, and(c) be accompanied by the fee prescribed by the regulations.(3) If different classes of aquaculture permits have been prescribed, the application must specify the class or classes of permits for which application is made.(4) The Minister may require an applicant to provide such further information in relation to the application as the Minister thinks necessary and may decline to deal further with the application if such a requirement is not complied with.
146 Issue or refusal of permit
(1) The Minister may issue or refuse to issue an aquaculture permit to an applicant for the permit.(1A) The issue of an aquaculture permit in relation to integrated development within the meaning of section 91 of the Environmental Planning and Assessment Act 1979 is subject to Division 5 of Part 4 of that Act.(2) The Minister may only refuse to issue the permit if:(a) the application was not duly made, or(b) in the case of an individual—the applicant is disqualified under section 161 from holding an aquaculture permit, or(c) in the case of a corporation—the applicant or any of the directors or other persons concerned in the management of the corporation is disqualified under section 161 from holding an aquaculture permit, or(d) the Minister is not satisfied that the applicant has prepared an appropriate commercial farm development plan, or(e) the Minister is not satisfied that the applicant has the expertise necessary to undertake the aquaculture successfully, or(f) the area where the applicant proposes to undertake aquaculture is not available or suitable for that purpose, or(g) the application is inconsistent with any relevant aquaculture industry development plan, or(h) the Minister is otherwise authorised or required by the regulations, or by this or any other Act, to refuse to issue the permit.(3) Before refusing to issue a permit under this section, the Minister is required to give the applicant an opportunity to be heard on the matter or to make written submissions on the matter.(4) An applicant may apply to the Administrative Decisions Tribunal for a review of a refusal of the Minister to issue a permit under this section.
147 Permit to specify area and type of aquaculture
(1) An aquaculture permit must specify the area or areas within which the holder is authorised to undertake aquaculture and the type of aquaculture authorised to be undertaken within any such area.(2) The aquaculture permit may specify separate leased or other areas, whether or not they are adjoining.(3) The aquaculture permit may specify the type of aquaculture authorised by the permit by specifying all or any of the following:(a) the species of fish or marine vegetation that may be cultivated or kept (including any hybrid or polyploid form of species),(b) the things that may be cultivated from fish or marine vegetation kept under the permit,(c) the part of the life cycle of a species during which the species may be cultivated or kept.
(1) The Minister may, at any time by notice in writing to the holder of an aquaculture permit:(a) vary the area or areas within which the holder is authorised to undertake aquaculture, or(b) vary the type of aquaculture that may be undertaken within any such area.This subsection applies whether or not the variation has been requested by the permit holder.
(2) The Minister must not, at the request of a permit holder, vary the area or areas within which the holder is authorised to undertake aquaculture if the Minister would have refused under section 146 (2) an application for an aquaculture permit in relation to the area or areas (as proposed to be varied).Note. This section will enable a single permit to be issued in respect of all the leased areas held by the permit holder.
(1) The holder of an aquaculture permit is not required to hold a commercial fishing licence or any other licence or permit under this Act for the purpose of taking fish or marine vegetation cultivated or kept under the authority of the aquaculture permit.(2) The holder of the aquaculture permit may use any fishing gear for the purpose of taking any fish or marine vegetation cultivated or kept under the authority of the aquaculture permit, whether or not the fishing gear may lawfully be used for that purpose.(3) This section is subject to the other provisions of this Part and the conditions of the aquaculture permit.
An aquaculture lease or a provision of an aquaculture lease does not authorise anything to be done which is contrary to this Division or the terms or conditions of an aquaculture permit relating to the leased area.
(1) An aquaculture permit remains in force, unless otherwise provided in the permit, until it is cancelled or replaced with another permit under this Part.(2) The permit does not have effect while it is suspended under this Part.
(1) An aquaculture permit is subject to:(a) such conditions as are prescribed by the regulations, and(b) such conditions as are specified in the permit or as the Minister notifies to the permit holder while the permit is in force.(2) Without limiting subsection (1), conditions may include:(a) conditions regulating the type of aquaculture that may be undertaken under the authority of the permit, and(b) conditions relating to the erection of structures on the area to which the permit relates, and(c) conditions relating to the escape of fish, effluent or any other thing from the area to which the permit relates, and(d) conditions requiring the permit holder to enter into a bond or guarantee or other financial arrangement for the due performance of the holder’s obligations under this Act (including for the destruction of noxious fish and the restoration of, or removal of material from, the area in which the aquaculture has been undertaken), and(e) conditions requiring the permit holder to maintain public liability insurance and to indemnify the State and its agents in connection with the undertaking of the aquaculture, and(f) conditions relating to the review of the commercial farm development plan of the permit holder.(3) The holder of an aquaculture permit is guilty of an offence if, without lawful excuse, a condition of the permit is contravened.Maximum penalty: In the case of a corporation, 100 penalty units or, in any other case, 50 penalty units.
(4) The Minister may, at any time by notice in writing to the holder of the permit, revoke or vary the conditions of an aquaculture permit (other than conditions prescribed by the regulations).(5) The regulations may make provision for or with respect to bonds, guarantees and other financial arrangements entered into under a condition of an aquaculture permit.
153 Holder of permit to provide information to the Minister
(1) The Minister may, by notice in writing served on the holder of an aquaculture permit, require the holder to give to the Minister any specified written information in connection with aquaculture under the permit.(2) The regulations and the conditions of an aquaculture permit may also require the holder of an aquaculture permit to give the Minister periodic or other information in connection with aquaculture under the permit.(3) It is a condition of every aquaculture permit that the holder complies with a requirement in a notice or regulation under this section.
(1) The Minister is required to keep a register of aquaculture permits for the purposes of this Part.(2) The Minister is required to enter in the register, in relation to each permit:(a) the name and business address of the permit holder, and(b) the date on which the permit was issued, and(c) the class or classes (if any) of the permit, and(d) the address or description of the area to which the permit applies, and(e) the type of aquaculture authorised by the permit within any such area, and(f) the conditions of the permit imposed by the Minister, and(g) particulars of any suspension or cancellation of the permit, and(h) any other matters prescribed by the regulations or determined by the Minister.(3) Particulars may be entered in the register by including in the register a copy of an aquaculture permit and any document that imposes conditions on the permit, or revokes or varies conditions of the permit, after the permit is issued.(4) The register may be kept wholly or partly by means of a computer.(5) Any person who attends the place where the register is kept during ordinary business hours is entitled to inspect the register.(6) If the register is kept wholly or partly by means of a computer, this section is taken to be complied with by providing a computer print-out or providing access to a computer terminal that can be used to view the register.
155 Change in particulars to be notified
The holder of an aquaculture permit must, within 28 days after there is a change in the business address of the permit holder, any director of the body corporate (if the holder is a body corporate) or any other matter prescribed by the regulations, give the Minister particulars in writing of that change.Maximum penalty: 20 penalty units.
156 Annual contribution to cost of administration or research or to other industry costs
(1) A permit holder must, if the regulations so require, pay to the Minister an annual contribution towards any of the following costs:(a) the cost of administration of this Part, being a cost that is identified in the regulations as a cost directly attributable to industry,(b) the cost of monitoring the quality of the environment in which aquaculture is undertaken and of testing the quality of the fish or marine vegetation cultivated or kept,(c) the cost of carrying out research into aquaculture,(d) any other costs relating to the aquaculture industry.(2) The amount of the contribution is to be specified in or determined by the regulations. The regulations may provide for the contribution to be based on the size of the area available for aquaculture or on any other basis and for the payment of the contribution by instalments or otherwise.(3) The payment required by this section is taken to be a condition of every aquaculture permit.(4) A contribution payable under this section is in addition to any rental payable by the permit holder for an aquaculture lease.(5) A contribution is payable under this section even if the aquaculture permit is suspended.(6) The Minister is to appoint a committee of persons to advise the Minister about the level of services provided to the aquaculture industry for the purposes referred to in subsection (1) (a) and about the amount of contributions for the costs of administration directly attributable to the aquaculture industry. The Minister is to ensure that a majority of the members of such a committee are relevant representatives of the aquaculture industry.
157 Annual contributions to be held in trust accounts
(1) The Minister is to establish and operate trust accounts for annual contributions made by permit holders (except those referred to in section 156 (1) (a)).(2) The Minister may establish separate trust accounts for the different purposes for which the contributions are made.(3) Money in a trust account is, subject to the regulations, to be used only for the purpose for which the relevant contributions were made.(4) The Minister is to appoint a committee of persons to advise the Minister on the amount of contributions payable into any trust account and the expenditure of money in the trust account.(5) The Minister must not approve of any expenditure from a trust account without the concurrence of the committee appointed in respect of the account.(6) A single committee may be appointed in respect of 2 or more trust accounts.(7) The Minister is to ensure that a majority of the members of each committee are representatives of the aquaculture industry.(8) A committee is not subject to the control and direction of the Minister. However, the Minister may require a committee to reconsider any decision made by it.(9) The Minister may remove any member or all members of a committee from office.(10) The regulations may make provision for or with respect to:(a) the establishment and operation of trust accounts under this section, and(b) the establishment, membership and procedure of committees under this section.
157A Minister may appoint advisory council as committee
(1) The Minister may, if the Minister considers it appropriate to do so, appoint any advisory council established under section 229 for the aquaculture sector of the fishing industry as either or both of the following:(a) the committee required to be appointed under section 156 (6),(b) the committee required to be appointed under section 157 (4).(2) An advisory council may be so appointed only if its membership meets the requirement of section 156 (6) or 157 (7), as the case may be, with respect to the majority of members of the committee.
(1) If an annual contribution by a permit holder 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, at that rate.(2) Interest may be charged for each day that has elapsed between the date on which payment is due and the date of payment.(3) Interest charged on an overdue annual contribution under this section is taken to be part of the contribution.
159 Power to cancel or suspend a permit without a hearing
The Minister may cancel or suspend an aquaculture permit if the holder of the permit:(a) dies or otherwise ceases to exist, or(b) asks the Minister to cancel or suspend the permit.
160 Power to cancel or suspend a permit after a hearing
(1) The Minister may, by notice in writing to the holder of an aquaculture permit, cancel or suspend the permit if:(a) the application for the permit was false or misleading in a material particular, or(b) the permit holder has contravened this Part or the regulations under this Part, or(c) the permit holder has contravened Division 6 of Part 7 (Noxious fish) in the area to which the permit relates, or(d) the permit holder has contravened a condition of the permit, or(e) the permit holder has been convicted of stealing fish or marine vegetation, or(f) the permit holder is not undertaking aquaculture in accordance with the holder’s current commercial farm development plan, or(g) the area to which the permit relates has been varied since the issue of the permit and the Minister is satisfied that an application for an aquaculture permit would have been refused under section 146 (2) if made in relation to the area (as varied), or(h) in the case of a permit for an area subject to an aquaculture lease—the area is not being used for the purposes for which the lease was granted, or(i) in the case of a permit for an area subject to an aquaculture lease—the area is being so mismanaged that the production of fish or marine vegetation in that area or any surrounding area has been prejudicially affected or that the suitability of that area or any surrounding area for aquaculture is threatened, or(j) the Minister is otherwise authorised by the regulations to cancel the permit.(2) Before cancelling or suspending a permit under this section, the Minister is required to give the permit holder an opportunity to be heard on the matter or to make written submissions on the matter.(3) The Minister may at any time, by notice in writing to the holder of the permit, revoke a suspension under this section.(4) Nothing in this section affects any powers of the Minister to cancel an aquaculture lease.(5) A permit holder may apply to the Administrative Decisions Tribunal for a review of the cancellation or suspension of the holder’s permit under this section.
161 Power to declare person to be a disqualified person for the purposes of this Part
(1) If an aquaculture permit issued to a person who is not a corporation is cancelled otherwise than at the request of the permit holder or is suspended, the Minister may, by notice in writing, declare the person to be a disqualified person for the purposes of this Part.(2) If an aquaculture permit issued to a corporation is cancelled otherwise than at the request of the permit holder or is suspended, the Minister may, by notice in writing, also declare the corporation or any director or other person concerned in the management of the corporation to be a disqualified person for the purposes of this Part.(3) A notice under this section may declare a person to be a permanently disqualified person or to be a disqualified person for a specified period or until the happening of a specified contingency.(4) The Minister may, either on the application of the person concerned or on the Minister’s own initiative, vary or revoke a declaration under this section.(5) A notice under this section takes effect when it is served on the person to whom it relates.(6) Before making a declaration under this section, the Minister is required to give the person concerned an opportunity to be heard on the matter or to make written submissions on the matter.(7) The person concerned may appeal to the Administrative Decisions Tribunal for a review of a declaration under this section.
162 Permit area to be maintained in a tidy condition
(1) It is a condition of an aquaculture permit that the area to which the permit applies is, if it is subject to an aquaculture lease, to be maintained in a tidy condition.(2) The Minister may, by notice in writing served on the holder of such a permit, require the holder, within the period specified in the notice:(a) to carry out such work (including the removal of posts or any other thing from the area concerned) as the Minister considers to be necessary to achieve compliance with the condition referred to in subsection (1), or(b) to remove from land (other than the area concerned) anything that has been left by the holder on that land or that has come from the area and become deposited on that land.(3) A permit holder who fails to comply with such a notice is taken to have contravened a condition of the permit.(4) If such a notice is not complied with, the Minister or an agent of the Minister may:(a) enter the area concerned and, with the owner’s consent, the land concerned, and(b) carry out such work as is necessary to achieve compliance with the requirements of the notice.(5) The Minister may sell or otherwise dispose of anything removed from the area concerned or the land concerned in accordance with subsection (4).(6) The proceeds of such a sale are to be applied towards the costs and expenses of:(a) the sale, and(b) the disposal of anything removed but not sold, and(c) the carrying out of the work.If the proceeds of sale (and of any forfeited bond or other security) are insufficient to enable those costs and expenses to be recouped, the balance can be recovered as a debt by the Minister by proceedings brought in a court of competent jurisdiction.
(7) Compensation is not payable to a permit holder in respect of anything done under this section.
Division 3 Leases of public water land for aquaculture
163 Grant of aquaculture lease
(1) Subject to this Part, the Minister may, on application or by auction, public tender or ballot, lease an area of public water land for use for aquaculture.(2) A lease of an area may be of the whole area or may be limited to a stratum of the area.(3) A lease must specify the type of aquaculture authorised to be undertaken within the leased area. This subsection does not authorise the use of a lease without an aquaculture permit.(4) The regulations may prescribe or provide for the form of an aquaculture lease granted or renewed under this Part and may provide in the form for the inclusion of such additional covenants and conditions as the Minister may determine.(5) The term of any lease granted under this section must not exceed 15 years.(6) The Minister may lease land under this section by auction, public tender or ballot even though an application has been made for a lease of the land.(7) The Minister must not grant a lease on an application unless satisfied that:(a) the land to which the application relates is available for lease, and(b) the application is consistent with any relevant development plan.(7A) Before granting a lease on an application, the Minister must:(a) cause to be published in the Gazette and on the website of the Department a notice of receipt of the application, specifying in the notice that written objections to the granting of the lease may be lodged with the Director-General before the expiration of a period specified in the notice, and(b) consider any objections to the granting of the lease that are lodged within the period specified in the notice for the making of written objections.(7B) The Minister is not required to comply with subsection (7A) if:(a) the area to which the application relates is the subject of a development plan and the type of aquaculture proposed is a type that the development plan provides is suitable in that area, or(b) the person to whom the lease is to be granted has obtained a development consent under Part 4 of the Environmental Planning and Assessment Act 1979, or approval under Part 3A or Part 5.1 of that Act, to carry out development on the proposed leased area for the purposes of the aquaculture concerned.(8) The regulations may make provision for or with respect to applications for aquaculture leases or to auctions, public tenders and ballots for aquaculture leases.
(1) An aquaculture lease vests in the lessee, the lessee’s executors, administrators, and assigns:(a) the exclusive right during the currency of the lease to undertake the type of aquaculture specified in the lease, subject to the provisions of or made under this Act and the provisions of the lease, and(b) the ownership of all fish or marine vegetation specified in the lease that are within the leased area.(2) An aquaculture lease does not confer the right of exclusive possession of the leased area.(3) An aquaculture lease is subject to the public right of fishing and to any right recognised by the regulations, except as provided by subsection (1) and the other provisions of or made under this Act.(4) Nothing in this section authorises a person to interfere with or damage anything on the leased area.
(1) The Minister is required to determine the rental of an aquaculture lease granted or renewed under this Division on the basis of the area of the lease.(2) The Minister may redetermine the rental of an aquaculture lease at such periods, being not less than 1 year, as the Minister thinks fit.(3) The amount paid in connection with an auction or a public tender for an aquaculture lease does not constitute the rental payable for the lease.(4) The regulations may make provisions for or with respect to the rental for aquaculture leases.(5) In particular, the regulations may prescribe a minimum rental for an aquaculture lease, either in respect of leases generally or leases of a particular class.
(1) If the rental of an aquaculture lease is unpaid after the date on which payment was due, 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, at that rate.(2) Interest may be charged for each day that has elapsed between the date on which payment is due and the date of payment.(3) Interest charged on the overdue rental of an aquaculture lease under this section is taken to be part of the rental.
(1) The Minister may, on application by the lessee, renew an aquaculture lease for a term not exceeding 15 years.(2) The Minister may renew the lease if satisfied the area should continue to be available for aquaculture.(3) However, a lessee is entitled to the renewal of the lease if it is the first renewal of the lease (under this Act or its predecessor) after the grant of the lease.(4) Subject to this Part, the covenants and conditions on which a renewal of an aquaculture lease may be granted under this section are the same as the covenants and conditions on which the Minister could, at the time of the renewal, grant such a lease.(5) The Minister is to notify a lessee, at least 90 days before the lease is due to expire, of the date of expiry. The Minister may accept an application for the renewal of a lease that is made after the date of expiry.(6) If an application is made for the renewal of an aquaculture lease and the renewal is not granted before the end of the lease:(a) the lease continues in force until the renewal is granted or refused, and(b) the renewal may be granted even though the lease would, but for this subsection, have come to an end.(7) The regulations may make provision for or with respect to applications for the renewal of aquaculture leases.
(1) If a lessee duly applies for a renewal of an aquaculture lease of an area, the lessee has a preferential right to a lease of the area, as against any applicant or other person.(2) Even though a former lessee has not duly applied for a renewal of an aquaculture lease of an area, the former lessee has a preferential right to such a lease of the area, as against any applicant or other person, if that lessee applies for an aquaculture lease of the area within 30 days after the end of the expired lease.(3) A preferential right does not arise under this section unless the Minister is satisfied the lessee or former lessee has substantially observed and performed the covenants and conditions of the lease and is satisfied the area should continue to be available for aquaculture.(4) Nothing in this section requires the Minister to grant or renew an aquaculture lease.
(1) The Minister may require as a condition of granting or renewing a lease, or of granting consent to the surrender of a part of a lease, that the lessee have a survey of the area carried out to a standard approved by the Minister.(2) The Minister:(a) may, by notice in writing served on the lessee of a leased area, require the lessee to have a survey of the area carried out to a standard approved by the Minister within such period as may be specified in the notice, or(b) may, if the lessee fails to comply with the notice, arrange for a survey of the area to be carried out to such a standard at the lessee’s expense.(3) The lessee of a leased area or any other person must not obstruct a survey carried out for the purposes of subsection (2) (b).Maximum penalty: 50 penalty units.
(4) A failure to comply with a notice served under subsection (2) (a), or a contravention of subsection (3), is a breach of a condition of the aquaculture lease concerned.(5) The cost of carrying out a survey under subsection (2) (b) is to be regarded as an additional amount of rental payable by the lessee on demand by the Minister.(6) The Minister may enter into arrangements with representatives of the commercial aquaculture industry for the payment of the cost of carrying out surveys under this section by lessees or on their behalf.
170 Lessee may fence leased area in certain cases
(1) The Minister may, on the application of the lessee of a leased area, authorise the lessee to erect a fence on the area subject to such conditions as may be specified in the authority.(2) The Minister must not authorise the erection of a fence unless the Minister has had regard to any interference to navigation that could be caused by the erection of the fence.(3) If a fence is erected on a leased area otherwise than in accordance with an authority granted under this section or a condition to which such an authority is subject is contravened, the lessee:(a) is taken to have contravened a condition of the lease, and(b) is guilty of an offence.Maximum penalty: 50 penalty units.
(4) If a fence is erected on a leased area otherwise than in accordance with an authority granted under this section or a condition to which such an authority is subject is contravened, the Minister or an agent of the Minister may:(a) enter the area, and(b) carry out such work as is necessary to remove the fence or to achieve compliance with the condition.(5) The Minister may sell or otherwise dispose of anything removed in accordance with subsection (4). The proceeds of such a sale are to be applied towards the costs and expenses of:(a) the sale, and(b) the disposal of anything removed but not sold, and(c) the carrying out of the work concerned.If the proceeds of sale (and of any forfeited bond or other security) are insufficient to enable those costs and expenses to be recouped, the balance can be recovered as a debt by the Minister by proceedings brought in a court of competent jurisdiction.
(5A) A reference in this section to a fence on a leased area includes (but is not limited to) a reference to a barrier or other structure located in or on the area to prevent, or dissipate the force of, waves entering the area.(6) Compensation is not payable to a lessee in respect of anything done under this section.
171 Improvements on an expired lease
(1) All improvements on leased areas vest in the State when the term of the lease expires or is otherwise terminated under this Part.(2) The Minister may allow the former lessee to remove any such improvements.(3) The Minister may, within 1 year after the termination of a lease, require the former lessee to remove any such improvements within the period notified in writing to the former lessee. The former lessee is guilty of an offence if the former lessee fails, without reasonable excuse, to do so.Maximum penalty: 100 penalty units.
(4) If the former lessee fails to remove improvements in accordance with a notice under subsection (3), the Minister or an agent of the Minister may:(a) enter the area, and(b) carry out such work as is necessary to remove the improvements.(5) The Minister may sell or otherwise dispose of anything removed in accordance with subsection (4). The proceeds of such a sale are to be applied towards the costs and expenses of:(a) the sale, and(b) the disposal of anything removed but not sold, and(c) the carrying out of the work concerned.If the proceeds of sale (and of any forfeited bond or other security) are insufficient to enable those costs and expenses to be recouped, the balance can be recovered as a debt by the Minister by proceedings brought in a court of competent jurisdiction.
(6) A lessee who has applied for a renewal of the lease of a leased area cannot be required, as a condition of the granting of the renewal, to pay for any improvements to the area.
172 Subletting with Minister’s consent
(1) The lessee of a leased area may sublet the area or a part of the area, but only with the consent in writing of the Minister.(2) The giving of such a consent may be made subject to the payment of such fee as may be prescribed by the regulations.
173 Transfer with Minister’s consent
(1) The lessee of a leased area may transfer the lease, but only with the consent in writing of the Minister.(2) The giving of such a consent may be subject to conditions and to the payment of such fee as may be prescribed by the regulations.
(1) The lessee of a leased area may, with the consent in writing of the Minister, surrender the lease or a part of the leased area to the Minister.(2) The giving of such a consent may be made subject to conditions and to the payment of such fee as may be prescribed by the regulations.(3) A surrender under this section does not operate to extinguish any debt to the Crown or Minister relating to the lease concerned, except to the extent the Minister directs.(4) On surrender of part of the leased area, the Minister may, with the agreement of the lessee, redetermine the rental of the lease.
175 Minister can determine access way
(1) The lessee of a leased area, or the owner or occupier of any land adjoining the area, may apply in writing to the Minister for the determination of an access way over the area.(2) On receiving such an application, the Minister must either:(a) determine an access way over the area concerned, or(b) refuse the application.Before determining an access way, the Minister must, in the case of an application made by the owner or occupier of adjoining land, serve on the lessee notice of the application.
(3) In determining an access way, the Minister may:(a) specify what notice of the access way is to be given, and(b) impose such conditions on the lessee, and direct the lessee to carry out such work for facilitating access by such way, as the Minister considers reasonable.(4) The Minister may refuse an application by the owner or occupier of adjoining land unless satisfactory arrangements are made for the payment by the owner or occupier of the cost of the work required to be carried out for the access way, and of the cost of compensation for the withdrawal from the lease of land for the access way.(5) The Minister may determine an access way without an application, but only after giving notice to the lessee concerned.(6) The Minister may vary or rescind a determination, condition or direction made, imposed or given under this section.(7) A failure to comply with a condition imposed on, or a direction given to, a lessee under this section is taken to be a breach of a condition of the lease of the area to which the condition or direction relates.(8) The Minister may under section 176 withdraw from an aquaculture lease any part of the leased area determined under this section to be an access way.(9) An access way determined under this section affects land brought under the provisions of the Real Property Act 1900 only when the Registrar-General has made an appropriate recording in the folio for the land.(10) A public authority or trustees in which a leased area is vested may exercise the functions of the Minister under this section.(11) An access way determined under this section is not affected by any renewal or transfer of the lease.
176 Power to withdraw land from lease
(1) The Minister may, by notice published in the Gazette, withdraw from an aquaculture lease any land (whether the whole or any part of the leased area) required for a public purpose.(2) A public purpose is any public purpose for which land may, under section 136 of the Crown Lands Act 1989, be withdrawn from a lease under that Act.(3) On publication of the notice, the lessee becomes entitled to compensation. The provisions of the Land Acquisition (Just Terms Compensation) Act 1991 relating to the payment of compensation for land acquired by compulsory process apply (with such modifications as are prescribed by the regulations) to the payment of compensation under this section.(4) Compensation under this section:(a) is payable from money to be provided by Parliament, or(b) if the area concerned is withdrawn at the request of a public authority—is payable by that public authority.(5) The Minister may, by notice published in the Gazette, revoke or modify a withdrawal under this section.(6) A withdrawal under this section does not operate to extinguish any debt to the Crown or Minister relating to the land withdrawn, except to the extent the Minister directs.(7) On withdrawal of land from a lease under this section, the Minister is to redetermine the rental of the lease in accordance with this Part.(8) A provision of this section does not apply to an aquaculture lease to the extent that it is inconsistent with a special condition of the lease relating to the withdrawal of land from the lease for a public purpose.
177 Power of Minister to cancel leases in certain cases
(1) The Minister may, by notice served on the lessee under an aquaculture lease, call on the lessee to show cause why the lease should not be cancelled on any one or more of the following grounds:(a) the leased area is not being used for the purposes for which the lease was granted or no aquaculture is being undertaken in the area,(b) the leased area is so polluted that fish or marine vegetation on the area are unfit for human consumption and the pollution is likely to continue indefinitely,(c) the lessee has not paid any rental or other amount due under the lease,(d) the lessee is in breach of any other condition of the lease for which the lease authorises its cancellation under this section.(2) After 1 month from the date of service of the notice the Minister may, by notice published in the Gazette, cancel the lease.(3) Before cancelling a lease, the Minister must consider any representations made by the lessee.(4) A lessee may apply to the Administrative Decisions Tribunal for a review of the cancellation of the lease.
178 Areas of public water land may be excluded from leasing
(1) The Minister may exclude any public water land from being leased under this Part.(2) The Minister is to publish details of any such excluded area in such manner as the Minister thinks fit.
179 Protection of leased areas
(1) A person, other than the lessee or the lessee’s agents or employees, must not:(a) remove, or in any way injure or interfere with, any fish or marine vegetation cultivated or kept within the leased area or any thing used for the purpose of aquaculture on a leased area, without the consent of the lessee, or(b) deposit anything on a leased area or dredge or dig within a leased area, except in accordance with Division 3 of Part 7 or, if that Division does not apply, by direction or authority of the lessee or the Minister.Maximum penalty: In the case of a corporation, 100 penalty units or, in any other case, 50 penalty units.
(2) This section does not apply to the placing of any thing on a leased area for the purpose of navigation.(3) A person who is found guilty of an offence against this section is liable to compensate the lessee for all damage that the lessee has sustained as a result of the person’s unlawful act. The lessee may, by proceedings brought in a court of competent jurisdiction, recover as a debt the amount of that compensation.(4) If the Minister fails to authorise an act referred to in subsection (1) (b) at the request of a public authority or trustees in whom the land concerned is vested, the matter may be referred to the Premier for resolution by the Minister responsible for the authority or trustees.
180 Leased area under Real Property Act 1900
When the land comprised in an aquaculture lease has been brought under the provisions of the Real Property Act 1900, any dealing with the lease must be effected in accordance with that Act.
Division 4 Diseased fish and marine vegetation
In this Division:declared disease means a disease in respect of which this Division applies under section 182 or 182A.
disease means a disease (including a pest or parasite) that kills or causes illness in fish or marine vegetation (or a particular species of fish or marine vegetation) or that kills or causes illness in people who eat the infected fish or marine vegetation.
marine vegetation includes any species of aquatic plant prescribed by the regulations.
quarantine area means an area or boat declared to be a quarantine area by an order in force under section 183 (Minister may declare quarantine area).
(1) Each disease specified in Schedule 6B is a disease in respect of which this Division applies.(2) The common name of a species specified in Part 2 of Schedule 6B is for information purposes only and does not limit a description of species in that Schedule.(3) The Governor may, by regulation made on the recommendation of the Minister, amend Schedule 6B to insert, alter or omit any matter in that Schedule.
182A Urgent declarations by Minister
(1) If the Minister considers that urgent action is required in respect of a particular disease, the Minister may, by notice published in a newspaper circulating generally in the State, or by radio or television broadcast, declare that disease to be a disease in respect of which this Division applies.(2) In such an urgent case, the Minister is to publish the declaration in the Gazette as soon as practicable after it is made.(3) A declaration made by the Minister under this section may provide that specified provisions of this Division do not apply in respect of the disease or apply only in the circumstances specified in the declaration.(4) A declaration has effect according to its terms and remains in force (unless sooner revoked by another declaration) for the period, not exceeding 6 months, specified in the declaration.
183 Minister may declare quarantine area
(1) The Minister may, by order, declare any area or boat specified in the order to be a quarantine area because of the presence or suspected presence of a declared disease.(2) An area may be declared a quarantine area if:(a) it is subject to an aquaculture permit, or(b) it is an area of water, or(c) it is an area in the immediate vicinity of an area of water, or(d) it is a pet shop or an aquarium kept for commercial purposes.(3) An order declaring a quarantine area is to be published in the Gazette. However, if the Minister considers the order is required urgently, the order may be published:(a) in a newspaper circulating, or by radio or television broadcast, in the area to which the order applies, or(b) on the Department’s internet website.(3A) The order is not required to be so published if served on the owner or occupier of the area or boat concerned.(3B) The order commences on the day it is published or served in accordance with this section, or on such later day as may be specified in the order.(4) An order declaring a quarantine area may:(a) prohibit the taking of fish or marine vegetation or specified fish or marine vegetation in or from the quarantine area, and(a1) exclude specified provisions of this Division in respect of any fish or marine vegetation, or specified fish or marine vegetation, taken from or deposited in the quarantine area or any part of the quarantine area, and(a2) prohibit or restrict the movement of fish or marine vegetation or specified fish or marine vegetation into, within or out of the quarantine area, and(b) require a relevant person to take such action as is specified in the order or directed by a fisheries officer (including the destruction or treatment of fish or marine vegetation cultivated or located in the quarantine area), and(c) contain any other provisions authorised by the regulations.If the order is not published in accordance with this section, the provisions of the order apply only to the persons on whom the order is served.
(4A) For the purposes of this section, a relevant person means:(a) the holder of an aquaculture permit in respect of a quarantine area or part of a quarantine area, or(b) the owner or occupier of any land or premises or boat that is within a quarantine area or the master of any such boat.(5) A person who, without reasonable excuse, contravenes a provision of an order declaring a quarantine area is guilty of an offence.Maximum penalty: In the case of a corporation, 1,000 penalty units or, in any other case, 500 penalty units.
(6) If a relevant person fails to take any action required by an order declaring a quarantine area, a fisheries officer may enter the quarantine area and take the required action.(6A) Subsection (6) does not authorise a fisheries officer to enter any premises used for residential purposes.(7) If the fisheries officer takes such action:(a) the relevant person is not entitled to any compensation for any loss reasonably caused in taking that action, and(b) the Minister may recover from the relevant person the costs of taking that action as a debt in a court of competent jurisdiction.
184 Intentional or reckless communication of declared disease to live fish or marine vegetation
A person must not intentionally or recklessly communicate a declared disease to live fish or marine vegetation.Maximum penalty: In the case of a corporation, 500 penalty units or, in any other case, 100 penalty units.
185 Sale of diseased fish or marine vegetation prohibited
A person must not sell any fish or marine vegetation (whether live or dead) if the person knows or has reason to suspect that it is, or is infected with, a declared disease.Maximum penalty: In the case of a corporation, 500 penalty units or, in any other case, 100 penalty units.
186 Diseased fish or marine vegetation not to be deposited in New South Wales waters
A person must not deposit in any waters any fish or marine vegetation (whether live or dead) if the person knows or has reason to suspect that it is, or is infected with, a declared disease.Maximum penalty: In the case of a corporation, 500 penalty units or, in any other case, 100 penalty units.
187 Regulations relating to diseased fish and marine vegetation
(1) The regulations may make provision for or with respect to eliminating or preventing the spread of declared diseases.(2) In particular, the regulations may make provision for or with respect to:(a) the destruction or treatment of fish or marine vegetation that is, or is suspected of being, a declared disease or infected with a declared disease, and(b) the examination, testing and treatment of fish or marine vegetation in a quarantine area, and(c) the notification to the Minister or a fisheries officer of the presence or suspected presence of a declared disease or the infection or suspected infection with a declared disease of fish or marine vegetation in an area subject to an aquaculture permit, pet shop, aquarium or other place or in or on a boat.
(1) The Minister may, by order published in the Gazette, declare that any specified provisions of this Division do not apply in respect of a declared disease or apply only in the circumstances specified in the order.(2) Such an order has effect according to its terms.
Division 5 Miscellaneous provisions
188 Minister may order restoration work to be carried out in relation to illegal operations on aquaculture farm
(1) If a person, not being the holder of an aquaculture permit, erects structures or carries out other works on public water land for the purpose of aquaculture, the Minister may, by order in writing given to the person, require the person to remove the structures or carry out other remedial works within such period as is specified in the order.(2) If a person, being the holder of an aquaculture permit, erects structures or carries out other works in contravention of the conditions of the permit, the Minister may, by order in writing given to the person, require the person, within such period as is specified in the order:(a) to remove the structures from the area concerned, or(b) to relocate them within that area, or(c) to carry out other remedial works.(3) If a person fails to comply with an order given under this section, the Minister:(a) may cause the work specified in the order to be carried out, and(b) may, by proceedings brought in a court of competent jurisdiction, recover from the person as a debt the cost of carrying out the work.(4) The Minister may give an order under this section whether or not any person has been charged with or convicted of an offence in respect of the matter.
189 When aquaculture operations can be closed
(1) The Minister may, by a fishing closure under Part 2, prohibit during a specified period the taking of fish or marine vegetation cultivated or kept under an aquaculture permit from the area to which the permit applies if satisfied:(a) that the area is in such a condition that the taking of fish or marine vegetation from the area ought to be suspended, or(b) that the fish or marine vegetation are, or are likely to be, unfit for human consumption.(2) Any such fishing closure does not prevent the taking of fish or marine vegetation for any purpose authorised by the regulations or the fishing closure.(3) This section does not limit the application of a fishing closure under Part 2 to the taking of fish or marine vegetation from an area subject to an aquaculture permit and to which the permit does not apply.
190 Special provisions relating to oysters on public water or other land
(1) All oysters on public water land, or on any area from which the taking of oysters is prohibited under this Act, and all oysters taken from any such land or area without lawful authority, are the property of the Crown.(2) A person who, without lawful authority, takes oysters from any public water land is guilty of an offence.Maximum penalty: 50 penalty units.
(3) A person has lawful authority to take oysters from public water land for personal consumption. However, this subsection is subject to any other prohibition or restriction imposed by or under this Act on the taking of oysters.
The regulations may make provision for or with respect to the following:(a) the cultivation of fish or marine vegetation or the keeping of fish or marine vegetation in a confined area (whether or not it constitutes aquaculture within the meaning of this Part),(b) the taking of oysters and other shellfish from public water land and the protection of any such oysters and other shellfish,(c) the gathering or collection of marine vegetation, including the prohibition of the gathering or collection of marine vegetation for commercial purposes except under the authority of a permit,(d) the tagging or other identification of fish or marine vegetation cultivated or kept under the authority of an aquaculture permit,(e) the marking of boundaries of areas used for aquaculture,(f) preventing holders of aquaculture leases from obstructing access to areas adjoining their leased area,(g) mortgages, charges and other interests with respect to aquaculture leases,(h) the consolidation of leased areas,(i) the protection of the interests of holders of aquaculture permits,(j) the method of determining priority among applications for aquaculture leases in cases not specifically provided for by this Part,(k) the fixing, levying and collection of rents, charges and fees for the purposes of this Part,(l) the contents and review of commercial farm development plans,(m) the method of determining whether or not aquaculture is undertaken or able to be undertaken on a commercial basis, for example by reference to production levels or the size of the area available for aquaculture,(m1) applications and eligibility for, and subdivisions, transfers or other dealings involving, aquaculture leases,(n) any other matter relating to the management or development of aquaculture.