Division 6 Noxious fish and noxious marine vegetation

209   Definitions

For the purposes of this Act:

noxious fish means a species of fish that is noxious fish for the purposes of this Act under section 209A or 209B.

noxious marine vegetation means a species of marine vegetation that is noxious marine vegetation for the purposes of this Act under section 209A or 209B.

209A   Noxious fish and noxious marine vegetation

(1)  Column 1 of Schedule 6C specifies the species of fish and marine vegetation that are noxious fish and noxious marine vegetation for the purposes of this Act.

(2)  If Column 3 of Schedule 6C specifies particular waters in relation to which a particular species of fish or marine vegetation is noxious fish or noxious marine vegetation, the species is noxious fish or noxious marine vegetation only when located in those specified waters.

(3)  The common name of a species of fish or marine vegetation specified in Column 2 of Schedule 6C is for information purposes only and does not limit the description of the species of fish or marine vegetation in Column 1.

(4)  The Governor may, by regulation on the recommendation of the Minister, amend Schedule 6C to insert, alter or omit any matter in that Schedule.

209B   Urgent declarations by Minister

(1)  In the case of an emergency, the Minister may, by order published in the Gazette, declare any specified species of fish or marine vegetation to be noxious fish or noxious marine vegetation for the purposes of this Act.

(2)  An order made by the Minister under this section may:

(a)  limit the declaration to fish or marine vegetation located in any specified waters, and

(b)  declare that specified provisions of this Division do not apply in respect of the relevant species of fish or marine vegetation or apply only in the circumstances specified in the declaration.

(3)  An order has effect according to its terms and remains in force (unless sooner revoked by another order) for the period, not exceeding 6 months, specified in the order.

209C   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 noxious fish or noxious marine vegetation.

(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 or other place where noxious fish or suspected noxious fish are found that is used 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.

(4)  The order is not required to be so published if served on the owner or occupier of the area or boat concerned.

(5)  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.

(6)  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

(b)  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

(c)  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

(d)  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

(e)  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.

(7)  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 any boat that is or is within a quarantine area or the master of any such boat.

(8)  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.

(9)  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.

(10)  Subsection (9) does not authorise a fisheries officer to enter any premises used for residential purposes.

(11)  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.

209D   Release of noxious fish or noxious marine vegetation prohibited

(1)  A person must not intentionally or recklessly release into any waters any live noxious fish or live noxious marine vegetation otherwise than under the authority of a permit issued by the Minister for the purposes of this section.

Maximum penalty: In the case of a corporation, 500 penalty units or, in any other case, 100 penalty units.

(2)  This section does not apply:

(a)  if the fish are released in waters in which they are not noxious fish, or the marine vegetation is released in waters in which it is not noxious marine vegetation, for the purposes of this Division, or

(b)  to the immediate return of fish to waters from which they were taken.

(3)  In this section, release fish or marine vegetation includes depositing them or permitting them to escape.

210   Sale of noxious fish or noxious marine vegetation prohibited

(1)  A person who sells live noxious fish or noxious marine vegetation otherwise than under the authority of a permit issued by the Minister is guilty of an offence.

Maximum penalty: In the case of a corporation, 500 penalty units or, in any other case, 100 penalty units.

(2)  This section applies even if the fish are only noxious fish, or the marine vegetation is only noxious marine vegetation, for the purposes of this Division when in particular waters.

211   Possession of noxious fish or noxious marine vegetation prohibited

(1)  A person who has possession of live noxious fish or noxious marine vegetation otherwise than under the authority of a permit issued by the Minister under this Part or an aquaculture permit is guilty of an offence.

Maximum penalty: In the case of a corporation, 100 penalty units or, in any other case, 50 penalty units.

(2)  It is a defence to a prosecution for an offence under this section if the person charged satisfies the court that the person neither introduced the noxious fish or noxious marine vegetation into the waters concerned nor maintained the noxious fish or marine vegetation in those waters.

(3)  This section does not apply if the fish are in waters in which they are not noxious fish, or the marine vegetation is in waters in which it is not noxious marine vegetation, for the purposes of this Division.

212   Use of aquaculture permit to control noxious fish or noxious marine vegetation

Conditions may be included in an aquaculture permit for the purpose of the destruction or control of noxious fish or noxious marine vegetation.

213   Destruction of noxious fish or noxious marine vegetation

(1)  A fisheries officer may seize and destroy any live noxious fish or noxious marine vegetation.

(2)  A fisheries officer may take possession of:

(a)  any fish the officer suspects are noxious fish in order to determine whether they are noxious fish, or

(b)  any marine vegetation the officer suspects is noxious marine vegetation in order to determine whether it is noxious marine vegetation.

(3)  The Minister may, by notice in writing given to the owner or occupier of premises on which noxious fish are, or noxious marine vegetation is, located, require the owner or occupier to take such measures as are specified in the notice to destroy the fish or marine vegetation within a specified period.

(4)  If the owner or occupier to whom such a notice is given fails within the period specified in the notice to comply with any of the requirements of the notice, a fisheries officer may:

(a)  enter the premises where live noxious fish are, or noxious marine vegetation is, believed to be located, and

(b)  take such measures to destroy those fish or that marine vegetation as the fisheries officer considers appropriate.

This subsection does not authorise a fisheries officer to enter any premises used for residential purposes.

(5)  Compensation is not payable for the seizure or destruction of live noxious fish or live noxious marine vegetation under this section or for the destruction of other live fish or live marine vegetation if, in destroying the noxious fish or the noxious marine vegetation, the destruction of the other fish or marine vegetation could not reasonably be avoided.

(6)  The Minister may, by proceedings brought in a court of competent jurisdiction, recover as a debt from an owner or occupier to whom a notice has been given under this section the costs incurred in taking the measures referred to in subsection (4).

214   Search warrant

(1)  A fisheries officer may apply to an authorised officer for a search warrant if the fisheries officer believes on reasonable grounds that live noxious fish are, or live noxious marine vegetation is, located on any specified premises.

(2)  An authorised officer to whom an application is made under this section may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising a fisheries officer named in the warrant:

(a)  to enter the premises, and

(b)  to search the premises for, and to seize and destroy, any noxious fish or noxious marine vegetation on the premises.

(3)  Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section.

(4)  In this section:

authorised officer has the same meaning as it has in the Law Enforcement (Powers and Responsibilities) Act 2002.

214A   Exemptions

(1)  The Minister may, by order published in the Gazette, declare that any specified provisions of this Division do not apply in respect of specified noxious fish or noxious marine vegetation or apply only in the circumstances specified in the order.

(2)  Such an order has effect according to its terms.

214B   Regulations relating to noxious fish and noxious marine vegetation

(1)  The regulations may make provision for or with respect to eliminating or preventing the spread of noxious fish and noxious marine vegetation.

(2)  In particular, the regulations may make provision for or with respect to the following:

(a)  the destruction of noxious fish or noxious marine vegetation,

(b)  the examination and testing of fish or marine vegetation taken from or found in a quarantine area,

(c)  the notification to the Minister or a fisheries officer of the presence or suspected presence of noxious fish or noxious marine vegetation in an area subject to an aquaculture permit, pet shop, aquarium or other place or in or on a boat.