Schedule 7 Miscellaneous amendments to Fisheries Management Act 1994
(Section 4)
Insert in alphabetical order in section 4 (1):Aboriginal had the same meaning as in the Aboriginal Land Rights Act 1983.
[2] Section 40 Regulations relating to general management of fisheries
Insert after section 40 (2) (d):(d1) regulating recreational fishing competitions (including requiring a permit for any such competition and prescribing a fee for the issue of a permit),(d2) prohibiting the possession or receipt of fish illegally taken, processed or dealt with in any place outside the State,
[3] Section 127A Meaning of charter fishing boat
Omit “principally”.
[4] Section 127C Provisions relating to licensing of charter fishing boats
Insert “(including for or with respect to permitting, prohibiting or restricting the use of a boat as both a charter fishing boat and a commercial fishing boat licensed under Division 2 of Part 4)” after “licences” in section 127C (8).
[5] Section 127D Commercial fishing boats may be licensed as charter fishing boats
Omit the section.
[6] Section 183 Minister may declare quarantine area
Insert after section 183 (4) (a):(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
[7] Section 209 Declaration of noxious fish and noxious marine vegetation
Insert after section 209 (3):(3A) A class of noxious fish declared under subsection (3) may be designated in the declaration as a pest species or a controlled species or by any other name.
[8] Section 264 Seizure of things (other than boats and motor vehicles) connected with fisheries offence
Insert “or motor vehicle” after “other than a boat”.
[9] Section 266 Seizure of fishing gear and other things (other than boats, motor vehicles or fish)
Omit subsection (2). Insert instead:(2) This section does not apply to boats, motor vehicles or fish.
[10] Section 269 Forfeiture of boats and motor vehicles by order of court
Insert “or motor vehicle” after “boat” wherever occurring.
[11] Section 270 Return of boat or motor vehicle if relevant offence proceedings not taken
Insert “or motor vehicle” after “boat” wherever occurring.
[12] Section 271 Conviction to operate as forfeiture of things (other than boats and motor vehicles)
Insert “or motor vehicle” after “a boat” in subsection (1).
[13] Section 272 Forfeiture of things (other than boats and motor vehicles) where no relevant offence proceedings taken
Insert “or motor vehicle” after “a boat” in subsection (1).
Insert “and motor vehicles” after “boats”.
Insert after Division 4 of Part 9:(1) This Division applies to:(a) fishing activities, and(b) aquaculture, and(c) other activities regulated by Part 7.(2) A reference in this Division to:(a) a fishing activity includes a reference to aquaculture or to any such other activity, and(b) a fishing approval includes a reference to an aquaculture permit or to a permit under Part 7 to carry out any such other activity.(3) This Division does not apply to any fishing activity carried out, or to any document produced, before the commencement of this Division.(4) This Division does not affect other provisions of this Act, which provide for:(a) conditions on fishing authorities, and(b) functions exercisable by fisheries officers for the purpose of auditing compliance with this Act and the regulations.275B Nature of compliance audit
A compliance audit is a periodic or particular documented evaluation of the fishing activity to which a fishing authority relates for either or both of the following purposes:(a) to provide information to the persons carrying out or managing the fishing activity and to the persons administering this Act on compliance with legal requirements and relevant policies under this Act relating to the fishing activity,(b) to enable those persons to determine whether the way the activity is carried on can be improved in order to promote the objects of this Act.275C Accreditation and regulation of compliance auditors
The regulations may make provision for or with respect to the following:(a) the accreditation of compliance auditors for the purposes of this Division,(b) the fees payable for accreditation and the trust funds under Part 8 into which they are to be paid,(c) the carrying out of compliance audits by compliance auditors.275D Minister may require compliance audits by imposition of conditions on fishing authority
The Minister may, by the imposition of conditions on a fishing authority, require a compliance audit or audits to be undertaken to the satisfaction of the Minister by either or both of the following:(a) by the holder of the fishing authority,(b) by a compliance auditor.275E Provisions relating to conditions for compliance audits
(1) A condition requiring a compliance audit may be imposed at the time the fishing authority is issued or renewed or at any other time by notice in writing to the holder of the fishing authority. Such a condition may be varied or revoked by a similar notice.(2) Such a condition must specify the purpose of the audit.(3) Such a condition may require:(a) appointment of a compliance auditor to undertake the audit (either periodically or on particular occasions), and(b) approval by the Minister or other person of the compliance auditor before being appointed, and(c) preparation of written documentation during the course of the audit, and(d) preparation of an audit report, and(e) production to the Minister of the audit report.(4) Such a condition may specify the format and level of detail required for the audit.275F Certification of audit report
The audit report for a compliance audit is taken not to have been duly produced to the Minister unless it is accompanied by:(a) a declaration signed by the holder of the fishing authority certifying that the holder has not knowingly provided any false or misleading information to the compliance auditor and has provided all relevant information to the auditor, and(b) a declaration signed by the compliance auditor:(i) setting out the auditor’s qualifications, and(ii) certifying that the report is accurate, and that the auditor has not knowingly included any false or misleading information in it or failed to include any relevant information in it.(1) False or misleading information to auditor
A person who provides information to a compliance auditor in connection with a compliance audit, knowing the information to be false or misleading in a material respect, is guilty of an offence.(2) Information not provided to auditor
The holder of a fishing authority who fails to provide information to a compliance auditor in connection with a compliance audit being carried out in relation to the fishing authority, knowing the information to be materially relevant to the audit, is guilty of an offence.(3) False or misleading information in audit report
A compliance auditor who includes information in an audit report produced to the Minister in connection with a compliance audit, knowing the information to be false or misleading in a material respect, is guilty of an offence.(4) Information not included in audit report
A compliance auditor who fails to provide information in an audit report produced to the Minister in connection with a compliance audit, knowing the information to be materially relevant to the audit, is guilty of an offence.(5) Retention of audit documentation
The holder of a fishing authority who:(a) fails to retain any written documentation required to be prepared by the holder in connection with a compliance audit for a period of at least 5 years after the audit report concerned was produced to the Minister (or such other period as is prescribed by the regulations), or(b) fails to produce during that period any such documentation to a fisheries officer on request,is guilty of an offence.Maximum penalty: 200 penalty units.
275H Self-incriminatory information not exempt
Information must be supplied by a person in connection with a compliance audit, and this Division applies to any such information that is supplied, whether or not the information might incriminate the person.(1) Any information in an audit report or other documentation supplied to the Minister in connection with a compliance audit may be taken into consideration by the Minister and used for the purposes of this Act.(2) Without limiting the above, any such information is admissible in evidence in any prosecution of the holder of a fishing authority for any offence (whether under this Act or otherwise).
Insert after Division 6 of Part 9:In this Division:prohibition order means an order made under section 282C.
repeat offender means a person who has been convicted of no fewer than 3 fisheries offences (occurring on separate occasions) whether of the same or of a different kind.
282C Prohibition orders may be made against repeat offenders
(1) A court that convicts a repeat offender of a fisheries offence may, on application by the prosecutor, make an order that prohibits the repeat offender from:(a) engaging in specified commercial fishing activities, and(b) being on any boat, or in any premises, of a kind specified in the order that are associated with those commercial fishing activities.(2) The order may be made only if the court is satisfied that the order is necessary to prevent a threat to the sustainable management of a fisheries resource and that the threat justifies the restrictions to be imposed on the repeat offender.282D Provisions relating to making of prohibition order
(1) A prohibition order may only be made within 6 months after the repeat offender is convicted of the fisheries offence giving rise to the order.(2) A prohibition order may be made even if the person against whom the order is made has a legal or equitable interest in any boat or premises to which the prohibition order relates, or an entitlement to use the boat or premises to carry out fishing or other activities.(3) A court may not make a prohibition order unless:(a) it has given the repeat offender written notice of the application to make the order and of the proposed terms of the order that has been sought, and(b) it has given the repeat offender a reasonable opportunity to make submissions to the court on the matter.(4) A prohibition order under this section takes effect:(a) if the person to whom it relates is present in court when it is made, at the time it is made, or(b) in any other case, when it is served on the person to whom it relates.282E Duration, variation and revocation of prohibition order
(1) A prohibition order remains in force, unless it is sooner revoked, for the period specified in the order, not exceeding 5 years.(2) The court that made a prohibition order may, on application of the person against whom it was made, vary or revoke the order.(1) An appeal may be made against a prohibition order as if the order were part of the sentence for the fisheries offence giving rise to the order.(2) A prohibition order is suspended during any period that an appeal (or application for leave to appeal) is pending against the conviction for the fisheries offence giving rise to the order.(3) A prohibition order is revoked if the fisheries offence giving rise to the order is quashed.(4) The appeal court may vary or revoke a prohibition order even if the conviction for the fisheries offence is not quashed.282G Offence of contravening order
(1) A person who knowingly contravenes a prohibition order made against the person is guilty of an offence.Maximum penalty: 200 penalty units or imprisonment for 1 year, or both.
(2) It is a sufficient defence to a prosecution under this section if the accused person establishes that he or she had a reasonable excuse for contravening the order.
[17] Schedule 7 Savings, transitional and other provisions
Insert at the end of clause 2 (1):Fisheries Management and Environmental Assessment Legislation Amendment Act 2000