Division 1 The Director-General
341 Seal of the Director-General
(1) The Director-General is to have a seal.(2) The seal may be used for official purposes, including to certify the issue of a document (such as a share in a share management fishery) under the Act.
342–346(Repealed)
Division 3 Establishment, composition and functions of ministerial advisory councils
In this Division:advisory council means an advisory council established under section 229 of the Act.
member means a member of an advisory council.
348 Establishment of advisory councils
For the purposes of section 229 of the Act, the following advisory councils are to be established:(a) a Seafood Industry Advisory Council,(b) an Advisory Council on Recreational Fishing.(c), (d) (Repealed)
349 Seafood Industry Advisory Council
(1) The Seafood Industry Advisory Council is to be composed of the following members:(a) one person appointed on the nomination of each Management Advisory Committee referred to in Division 5 (that is, one member for each Management Advisory Committee),(b) one person appointed to represent the retail fish industry,(c) one person appointed to represent the wholesale fish industry,(d) one person appointed to represent commercial fishers co-operatives,(e) 2 persons appointed to represent the aquaculture industry, one of whom is nominated by the Peak Oyster Advisory Group established by the Department of Primary Industries,(f) one person appointed on the nomination of the Indigenous Fisheries Strategy Working Group established by the Department of Primary Industries or such other body representing Indigenous persons as the Minister considers appropriate,(g) one person appointed on the nomination of the Nature Conservation Council of New South Wales.(2) The Minister may, by advertisement published in a newspaper circulating throughout the State, call for expressions of interest in membership of the Seafood Industry Advisory Council.(3) The Seafood Industry Advisory Council is to include the following members, who are not entitled to vote at meetings of the Council:(a) the Director-General or a nominee of the Director-General,(b) the Director-General of the NSW Food Authority or a nominee of the Director-General of the NSW Food Authority,(c) such other persons as the Minister considers appropriate.
350 Advisory Council on Recreational Fishing
(1) The Advisory Council on Recreational Fishing is to be composed of the following members:(a) persons who, in the opinion of the Minister, have expertise in one or more of the following areas:(i) estuary fishing,(ii) offshore fishing,(iii) freshwater fishing,(iv) underwater fishing,(v) sale of fishing tackle,(vi) the media (reporting on fishing),(vii) charter boat fishing,(viii) Aboriginal culture,(b) one person appointed on the nomination of the Nature Conservation Council,(c) the Director-General or a nominee of the Director-General,(d) such other persons as the Minister considers appropriate.(2) The Minister may, by advertisement published in a newspaper circulating throughout the State, call for expressions of interest in membership of the Advisory Council on Recreational Fishing.
(1) If a member of an advisory council is to be appointed on the nomination of a Management Advisory Committee or the Nature Conservation Council, the Minister is to request the body concerned to nominate two candidates for appointment to the advisory council.(2) The Minister may decline to accept the nomination of any candidate. In such a case the Minister:(a) is to advise the body concerned of that decision and of the reason for the decision, and(b) if the Minister considers it appropriate, is to give the body concerned an opportunity to nominate another candidate.(3) If a Management Advisory Committee or the Nature Conservation Council fails to nominate a candidate for appointment to the advisory council within 60 days after being requested to do so by the Minister, or fails to nominate within that period a candidate whose nomination is accepted by the Minister, the Minister may appoint any person whom the Minister considers suitable to represent the interests of the body concerned as a member of the advisory council, instead of a person nominated by that body.
Division 4 Provisions relating to members and procedure of advisory councils
In this Division:advisory council means an advisory council established under section 229 of the Act.
MAC means a Management Advisory Committee.
MAC nominee means a member of an advisory council appointed on the nomination of a MAC.
member means a member of an advisory council.
(1) Subject to this Division, a member holds office for the term specified in his or her instrument of appointment (not exceeding 3 years) but is eligible (if otherwise qualified) for re-appointment.(2) A person who, on the commencement of this clause, is a member of an advisory council or a MAC retains that person’s membership of that council or MAC (subject to this Division) for the balance of the term for which the person was appointed.(3) Subclause (2) does not apply to a person who was taken to be a member of an advisory council or a MAC by virtue of the fact that the person was appointed to be the deputy of a member of the advisory council or MAC.
(1) A member is entitled to be paid such allowances as the Minister from time to time determines, in accordance with any relevant Government policies or guidelines, in respect of the member.(2) Any allowance payable to a member of an advisory council on the commencement of this clause is taken to be an allowance determined under this clause.
(1) A member may, from time to time, appoint a person to be the deputy of the member, and may at any time revoke any such appointment.(2) Such an appointment may be made only with the approval of the Minister. The Minister may revoke such approval at any time.(3) In the absence of a member, the member’s deputy may, if available, act in the place of the member.(4) While acting in the place of a member, a person:(a) has all the functions of the member and is taken to be a member, and(b) is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the person.
358 Vacancy in office of member
The office of a member of an advisory council becomes vacant if:(a) the member dies, or(b) the member completes a term of office and is not re-appointed, or(c) the member resigns the office by instrument in writing addressed to the Minister, or(d) the member is removed from office by the Minister under clause 359, or(e) the member is absent from 3 consecutive meetings of the advisory council of which reasonable notice has been given to the member personally or in the ordinary course of post, except on leave granted by the Minister or Director-General or unless, before the expiration of 4 weeks after the last of those meetings, the member is excused by the Minister or Director-General for having been absent from those meetings, or(f) the member becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or(g) the member becomes a mentally incapacitated person, or(h) in the case of a member of the advisory council who is a MAC nominee, the member ceases to be a member of the MAC, or(i) in the case of a member of the advisory council appointed on the nomination of the Nature Conservation Council, the Nature Conservation Council withdraws its nomination, or(j) in the case of a member who is appointed because he or she is the Director-General or a nominee of the Director-General, the member ceases to be the Director-General or the Director-General withdraws his or her nomination of the member, or(k) in the case of a member who is appointed because he or she is an officer of a government department, the member ceases to be an officer of that department.
359 Removal of member from office by Minister
(1) The Minister may remove a member from office in accordance with this clause.(2) The Minister is to consult the advisory council of which the person is a member before removing him or her from office.(3) The Minister may remove the member from office:(a) after the period of 30 days has elapsed since the Minister first gave notice to the advisory council concerned of the proposal to remove the member from office, or(b) if the removal of the member is agreed to by the advisory council concerned, at any time.
360 Filling of vacancy in office of member
(1) If the office of a member of an advisory council becomes vacant, the Minister is to appoint a person to fill the vacancy.(2) The Minister may appoint a person to fill a vacancy by calling for expressions of interest in the position or by appointing a person who was previously nominated for the position.
361 Chairperson and deputy chairperson of advisory council
(1) The Minister is to appoint the chairperson of each advisory council.(2) The chairperson is to be a person who:(a) in the opinion of the Minister, has no direct or indirect pecuniary interest in the fishery concerned, and(b) is not a member of the advisory council.(3) (Repealed)(4) The Minister may appoint a deputy chairperson for any advisory council. The appointee may be a member of the advisory council concerned.(5) Both the chairperson and the deputy chairperson (if any) are entitled to attend and (in accordance with this clause) chair meetings of the advisory council.(6) A meeting of an advisory council is to be chaired:(a) by the chairperson of the advisory council, or(b) in the absence of the chairperson:(i) by the deputy chairperson of the advisory council, or(ii) in the absence of the deputy chairperson (or if no deputy chairperson has been appointed)—by the person appointed by the Minister to chair the meeting in such circumstances (who may be a member of the advisory council), or(iii) in the absence of the person appointed under subparagraph (ii)—by a member of the advisory council elected by the members present to chair the meeting.(7) The person chairing a meeting of an advisory council is entitled to vote at the meeting only if the person is a member of that council.
362 General procedure for calling and holding meetings of advisory council
(1) The procedure for the calling and holding of meetings of an advisory council is to be determined by the Minister, subject to clause 363.(2) An advisory council is to hold at least 2 meetings each calendar year, unless the advisory council otherwise determines.
363 Transaction of business outside meetings or by telephone
(1) An advisory council may, with the written approval of the Director-General, transact any of its business by the circulation of papers among all the members of the advisory council for the time being, and a resolution in writing approved in writing by a majority of those members is taken to be a decision of the advisory council.(2) An advisory council may, with the written approval of the Director-General, transact any of its business at a meeting at which members (or some members) participate by telephone, closed-circuit television or other means, but only if any member who speaks on a matter before the meeting can be heard by the other members.(3) For the purposes of:(a) the approval of a resolution under subclause (1), or(b) a meeting held in accordance with subclause (2),the chairperson and each member have the same voting rights as they have at an ordinary meeting of the advisory council.(4) A resolution approved under subclause (1) is, subject to the regulations, to be recorded in the minutes of the meetings of the advisory council.(5) Papers may be circulated among the members for the purposes of subclause (1) by facsimile or other transmission of the information in the papers concerned.
The quorum for a meeting of an advisory council consists of a majority of its members for the time being.
A recommendation supported by a majority of votes cast at a meeting of an advisory council at which a quorum is present is the recommendation of the advisory council.
366 Disclosure of pecuniary interests
(1) A member of an advisory council:(a) who has a direct or indirect pecuniary interest in a matter being considered or about to be considered at a meeting of the advisory council, and(b) whose interest appears to raise a conflict with the proper performance of the member’s duties in relation to the consideration of the matter,must, as soon as possible after the relevant facts have come to the member’s knowledge, disclose the nature of the interest to the chairperson of the advisory council.(2) A disclosure by a member of the advisory council at a meeting of the advisory council that the member:(a) is a member, or is in the employment, of a specified company or other body, or(b) is a partner, or is in the employment, of a specified person, or(c) has some other specified interest relating to a specified company or other body or to a specified person,is a sufficient disclosure of the nature of the interest in any matter relating to that company or other body or to that person which may arise after the date of the disclosure and which is required to be disclosed under this clause.(3) After a member of an advisory council has disclosed the nature of an interest in any matter, the member must not, if the chairperson of the advisory council so determines:(a) be present during any deliberation of the advisory council with respect to the matter, or(b) take part in any decision of the advisory council with respect to the matter.(4) A contravention of this clause does not invalidate any decision of the advisory council.
(1) The members of an advisory council are to ensure that the advisory council exercises its advisory functions conferred by section 229 (3) of the Act and this Regulation.(2) The functions of the members do not include the expenditure of funds on behalf of the advisory council or representing the Minister, unless they are expressly authorised to do so by the Minister.
Division 5 Composition of Management Advisory Committees and qualifications for election
(1) In this Division:election means an election conducted for the purposes of electing one or more members of a MAC as provided by section 230 (2) (a) of the Act.
endorsement means an endorsement on a commercial fishing licence that authorises a person to take fish for sale in a restricted fishery.
industry member, of a MAC, means a member of a MAC who is elected and appointed pursuant to section 230 (2) (a) of the Act.
MAC means a Management Advisory Committee.
Table means the Table to clause 369.
(2) Despite clause 4, the notes to the Table (at the end of the Table) form part of this Regulation.
(1) A MAC that is established for a restricted fishery or a share management fishery that is specified in column 1 of Part A of the Table is to be comprised of:(a) the number of industry members set out in column 2 next to the fishery concerned, elected in accordance with this Division, and(b) the members appointed by the Minister pursuant to section 230 (2) (b) of the Act.(2) If the Table specifies the class of endorsement or shareholder to be represented by an industry member, the MAC is to be composed of industry members representing endorsement holders or shareholders of that class.(3) A single MAC is established for the ocean trawl fishery and the southern fish trawl restricted fishery. Those fisheries are taken, for the purposes of this Part, to be a single fishery which is referred to as the ocean trawl fishery and is treated as a share management fishery for the purposes of this Part.(4) For that purpose, a reference in this Part to class of shares or a shareholder in the ocean trawl fishery, in relation to the part of the fishery that is the southern fish trawl restricted fishery, is taken to be a reference to an endorsement or an endorsement holder in the southern fish trawl restricted fishery (as the case requires).Note. The number of appointed members of a MAC is to be less than the number of industry members of the MAC—see clause 399 (2).
Table Composition of MACs (industry members)
Column 1
Column 2
Column 3
Name of fishery
Number of industry members
Class of shareholders or endorsement holders to be represented
Abalone fishery
5
Not applicable
Ocean hauling fishery
8
7 members representing shareholders who hold shares in each of the regions of the fishery (that is, 1 member for each region), being shareholders who hold the Ocean hauling—general ocean hauling class of shares and at least 1 of the following classes of shares:
(a) Ocean hauling—hauling net (general purpose),(b) Ocean hauling—garfish net (hauling),(c) Ocean hauling—pilchard, anchovy and bait net (hauling).1 member representing shareholders who hold Ocean hauling—purse seine net class of shares.
Ocean trap and line fishery
7
3 members representing shareholders who are resident in the north of the State, with those members representing shareholders who hold the following classes of shares (that is, 1 member for each class of share):
(a) Ocean trap and line—line fishing western zone,(b) Ocean trap and line—line fishing eastern zone,(c) Ocean trap and line—demersal fish trap.3 members representing shareholders who are resident in the south of the State, with those members representing shareholders who hold the following classes of shares (that is, 1 member for each class of share):
(a) Ocean trap and line—line fishing western zone,(b) Ocean trap and line—line fishing eastern zone,(c) Ocean trap and line—demersal fish trap.1 member representing shareholders who hold Ocean trap and line— spanner crab northern zone or Ocean trap and line— spanner crab southern zone class of shares.
Ocean trawl fishery
6
1 member representing shareholders in the upper north coast region of the fishery who hold at least one of the following classes of shares:
(a) Ocean trawl—inshore prawn,(b) Ocean trawl—offshore prawn,(c) Ocean trawl—deepwater prawn.1 member representing shareholders in the Clarence region of the fishery who hold at least one of the following classes of shares:
(a) Ocean trawl—inshore prawn,(b) Ocean trawl—offshore prawn,(c) Ocean trawl—deepwater prawn.1 member representing shareholders in the north coast region of the fishery who hold at least one of the following classes of shares:
(a) Ocean trawl—inshore prawn,(b) Ocean trawl—offshore prawn,(c) Ocean trawl—deepwater prawn.1 member representing shareholders in the central region of the fishery who hold at least one of the following classes of shares:
(a) Ocean trawl—inshore prawn,(b) Ocean trawl—offshore prawn,(c) Ocean trawl—deepwater prawn.2 members representing shareholders in the metropolitan, upper south coast and lower south coast regions of the fishery (or any combination of those regions) who hold both:
(a) Ocean trawl—inshore prawn, Ocean trawl—offshore prawn, or Ocean trawl—deepwater prawn shares, and(b) Ocean trawl—fish northern zone shares or an endorsement in the southern fish trawl restricted fishery.Estuary general fishery
8
6 members representing shareholders who hold shares in each of the upper north coast, Clarence, north coast, metropolitan, upper south coast and lower south coast regions of the fishery (that is, 1 member for each of those regions).
1 member representing shareholders who hold shares in the central north region of the fishery.
1 member representing shareholders who hold shares in the central south region of the fishery.
Estuary prawn trawl fishery
3
1 member representing shareholders who hold the Estuary prawn trawl—Clarence River class of shares.
1 member representing shareholders who hold the Estuary prawn trawl—Hunter River class of shares.
1 member representing shareholders who hold the Estuary prawn trawl—Hawkesbury River class of shares.
Lobster fishery
5
Not applicable
Notes to Table2
For the purposes of the ocean trap and line fishery:
north of the State means that part of the State lying generally to the north of a line drawn due east and due west from Barrenjoey Head.
south of the State means that part of the State lying generally to the south of a line drawn due east and due west from Barrenjoey Head.
3
For the purposes of the ocean trawl fishery and ocean hauling fishery, the following are the regions of those fisheries:
(a)Upper north coast. That part of the State lying generally between the border between the States of Queensland and New South Wales and the parallel 29°15′ south latitude.
(b)Clarence. That part of the State lying generally between the parallel 29°15′ south latitude and the parallel 29°45′ south latitude.
(c)North coast. That part of the State lying generally between the parallel 29°45′ south latitude and the parallel 31°44′ south latitude.
(d)Central. That part of the State lying generally between the parallel 31°44′ south latitude and the parallel 33°25′ south latitude.
(e)Metropolitan. That part of the State lying generally between the parallel 33°25′ south latitude and the parallel 34°20′ south latitude.
(f)Upper south coast. That part of the State lying generally between the parallel 34°20′ south latitude and the parallel 35°25′ south latitude.
(g)Lower south coast. That part of the State lying generally between the parallel 35°25′ south latitude and the border between the States of New South Wales and Victoria.
4
For the purposes of the estuary general fishery, the following are the regions of the fishery:
(a)Upper north coast. That part of the State lying generally between the border between the States of Queensland and New South Wales and the parallel 29°15′ south latitude.
(b)Clarence. That part of the State lying generally between the parallel 29°15′ south latitude and the parallel 29°45′ south latitude.
(c)North coast. That part of the State lying generally between the parallel 29°45′ south latitude and the parallel 31°44′ south latitude.
(d)Central north. That part of the State lying generally between the parallel 31°44′ south latitude and the parallel 32°30′ south latitude.
(e)Central south. That part of the State lying generally between the parallel 32°30′ south latitude and the parallel 33°25′ south latitude.
(f)Metropolitan. That part of the State lying generally between the parallel 33°25′ south latitude and the parallel 34°20′ south latitude.
(g)Upper south coast. That part of the State lying generally between the parallel 34°20′ south latitude and the parallel 35°25′ south latitude.
(h)Lower south coast. That part of the State lying generally between the parallel 35°25′ south latitude and the border between the States of New South Wales and Victoria.
5
For the purposes of the Table, a fisher holds an endorsement in a particular part of a fishery if the endorsement authorises the holder to take fish for sale in that part of the fishery.
370 Qualifications for election to MAC
(1) Share management fisheries
In order to qualify for election as an industry member for a MAC for a share management fishery, a person must be:(a) a shareholder in the fishery or, if the industry member is to be elected to represent holders of a particular class or classes of shares, a shareholder who holds shares of that class or those classes, or(b) a person the Minister considers likely to be a shareholder referred to in paragraph (a), or(c) an individual nominated by a person in paragraph (a) or (b) who:(i) is the fisher nominated by that person under section 69 of the Act, or(ii) owns the highest (or equal highest) percentage of that person’s fishing business and is directly involved in the administration of that business, or(iii) owns at least 25 per cent of that person’s fishing business and is directly involved in the administration of that business.Only one nomination is permitted per shareholder or likely shareholder in relation to each election.
(2) Restricted fisheries
In order to qualify for election as an industry member for a MAC for a restricted fishery specified in Column 1 of the Table, a person must be:(a) a commercial fisher who holds an endorsement in the fishery of the type specified in Column 3 of the Table next to the fishery concerned, or(b) an individual nominated by a commercial fisher in paragraph (a) who:(i) owns the highest (or equal highest) percentage of the commercial fisher’s fishing business and is directly involved in the administration of that business, or(ii) owns at least 25 per cent of the commercial fisher’s fishing business and is directly involved in the administration of that business.Only one nomination is permitted per commercial fisher in relation to each election.
Note. Under section 230 (2) of the Act, only commercial fishers can be elected to a MAC.
371 General restrictions on election to a MAC
(1) A person is not qualified to be elected to a position of industry member on a MAC if the person:(a) is already a member of that MAC (unless the person is seeking re-election to the MAC) or another MAC, or(b) is already a candidate for election to any other MAC.(2) Officers and employees of NSW Fisheries are not qualified to be elected to a position of industry member on a MAC.(3) A person is not qualified to stand as a candidate in an election for a period of 5 years after the person:(a) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or(b) is convicted of an offence under the Act, this Regulation or any other regulation made under the Act or an offence relating to theft of fish, fishing gear or a boat or intentional damage to fishing gear or a boat, or(c) is dealt with under section 10 of the Crimes (Sentencing Procedure) Act 1999 in respect of an offence referred to in paragraph (b).Note. Under section 10 of the Crimes (Sentencing Procedure) Act 1999 a Court may find a person guilty of an offence without proceeding to a conviction (having regard to such matters as the character, antecedents, age, health and mental condition of the offender, the trivial nature of the offence and the extenuating circumstances in which the offence was committed).
(1) Share management fisheries
In order to be qualified to vote in an election for the position of industry member on a MAC for a share management fishery, a person must be:(a) a shareholder in the fishery or, if the industry member is to be elected to represent holders of a particular class of shares, a shareholder who holds shares of that class, or(b) a person the Minister considers likely to be a shareholder referred to in paragraph (a), or(c) if the person in paragraph (a) or (b) is not a natural person, an individual nominated by that person.(2) Restricted fisheries
In order to be qualified to vote in an election for the position of industry member on a MAC for a restricted fishery (as specified in Column 3 of the Table in relation to each fishery), a person must be a commercial fisher who holds an endorsement in the fishery of the type specified in Column 3 of the Table next to the fishery concerned.
Division 6 Procedure for election of industry members of Management Advisory Committees
In this Division:close of ballot, in relation to an election, means the time and date for the close of the ballot for the election that have been fixed under this Regulation by notice under clause 376 or, if that close has been extended, the time and date fixed under clause 377.
close of nominations, in relation to an election, means the time and date for the close of nominations for the election that have been fixed under this Regulation by notice under clause 376 or, if that close has been extended, the time and date fixed under clause 377.
close of roll, in relation to an election, means the time and date for the close of the roll for the election that have been fixed under this Regulation by notice under clause 376 or, if that close has been extended, the time and date fixed under clause 377.
election means an election conducted for the purposes of electing one or more members of a MAC as provided by section 230 (2) (a) of the Act.
industry member, of a MAC, means a member of a MAC who is elected and appointed pursuant to section 230 (2) (a) of the Act.
MAC means a Management Advisory Committee.
returning officer means:
(a) the Electoral Commissioner for New South Wales, or(b) a person nominated by the Electoral Commissioner for the purpose of exercising the functions of a returning officer.roll, in relation to an election, means the roll prepared for the election by the Director-General under this Division.
375 Notice that election is required
When an election is required under section 230 (2) (a) of the Act, the Director-General is:(a) to give the returning officer written notice that an election is required, and(b) to prepare, certify and deliver to the returning officer a roll containing the full names and addresses of the persons who, in the opinion of the Director-General, are qualified to vote in the election, to stand as a candidate and to nominate a candidate in the election.
(1) The returning officer is to publish written notice of an election as soon as practicable after having been notified in writing by the Director-General that the election is required.(2) The notice is to be published in at least one newspaper that circulates throughout New South Wales and in such other local newspaper (if any) as the returning officer considers appropriate.(3) The notice of the election must:(a) fix a time and date for the close of nominations, and(b) fix a time and date for the close of the roll, and(c) state that if the election is contested a ballot will be held, and fix a time and date for the close of the ballot.The notice may contain such other information concerning the election as the returning officer considers appropriate.
(4) The close of nominations and the close of the roll must be not earlier than 21 days, and not later than 28 days, after the date on which the notice is published.(5) The returning officer must also forward to each person included in the roll a notice setting out the matters set out in the notice of election and including such other information as the returning officer considers appropriate.
377 Postponement of closing dates
(1) The returning officer may postpone (for a period not exceeding 14 days) the close of nominations, the close of the roll or the close of the ballot by written notice in a form similar to, and published in the same manner as, the notice referred to in clause 376.(2) The returning officer may exercise the power conferred by this clause more than once in respect of an election.
(1) A person is qualified to nominate a candidate for an election if, and only if, the person is entitled to vote in the election.(2) A person is not entitled to nominate more than the number of candidates that are required to be elected to represent the person.(3) A nomination of a candidate:(a) must be in a form approved by the returning officer, and(b) must be made by no fewer than 2 persons (other than the candidate) who are qualified to nominate a candidate, and(c) must be lodged with the returning officer before the close of nominations.(4) If the returning officer is of the opinion that an insufficient number of the persons by whom a candidate has been nominated are qualified to nominate a candidate, the returning officer must, as soon as practicable, cause notice of that fact to be given to the candidate.
A candidate may withdraw his or her nomination by notice in writing addressed to the returning officer at any time before the close of nominations.
(1) The Director-General is to cause copies of the roll to be exhibited for public inspection at offices of NSW Fisheries for a period of at least 14 days ending at the close of the roll.(2) The Director-General may cause the copies of the roll to be exhibited at such other places the Director-General considers appropriate.
381 Application for enrolment by person not already enrolled
(1) A person may apply to the Director-General, in a form approved by the Director-General, for inclusion in the roll.(2) The application must be lodged on or before the close of the roll.(3) On receipt of the application the Director-General must:(a) if satisfied that the applicant is qualified to vote in the election, accept the application and enter the name and address of the applicant in the roll, or(b) if not so satisfied, reject the application and inform the applicant in writing that the application has been rejected.(4) The Director-General may, before the close of the roll, make any other necessary correction of the roll.(5) A determination by the Director-General as to whether or not a person is likely to be a shareholder or commercial fisher in a fishery is final and conclusive.
382 Uncontested election—share management fishery
(1) In the case of an election for industry members of a MAC for a share management fishery for which members are not elected to represent shareholders of a particular class of shares in the fishery, if by the close of nominations the number of candidates duly nominated for election does not exceed the number of industry members of which the MAC is composed, the returning officer is to declare all those candidates duly elected.(2) In the case of an election for industry members of a MAC for a share management fishery for which members are elected to represent shareholders who hold shares of a particular class in the fishery, if by the close of nominations the number of candidates duly nominated for election to represent shareholders who hold shares of a particular class does not exceed the number required to be elected to represent those shareholders (as specified in relation to the fishery concerned in column 3 of the Table to clause 369), the returning officer is to declare those candidates duly elected.(3) If the number of candidates in the election exceeds the number required to be elected, a ballot must be held.
383 Uncontested elections—restricted fisheries
(1) In the case of an election for industry members of a MAC for a restricted fishery, if by the close of nominations the number of candidates duly nominated for election to represent commercial fishers holding a particular type of endorsement in the fishery does not exceed the number required to be elected to represent those fishers (as specified in relation to the fishery concerned in column 3 of Part B of the Table to clause 369), the returning officer is to declare those candidates duly elected.(2) If the number of candidates in the election exceeds the number required to be elected, a ballot must be held.
(1) As soon as practicable after it becomes apparent to the returning officer that a ballot must be held, the returning officer is to notify the Director-General of that fact.(2) Within 7 days after having been so notified by the returning officer, the Director-General is to certify and deliver to the returning officer a copy of the roll, as in force at the close of the roll, together with an appropriately addressed label or an appropriately addressed envelope for each person whose name is included in that roll.(3) This clause does not apply to an election which is held as a consequence of an earlier election which has failed but in respect of which the relevant roll has been furnished to the returning officer under this clause.
(1) The returning officer must, as soon as practicable after the close of nominations in an election:(a) determine the order in which the candidates’ names are to be listed on a ballot-paper by means of a ballot held in accordance with the procedure prescribed for the purposes of section 82A of the Parliamentary Electorates and Elections Act 1912, and(b) cause sufficient ballot-papers to be printed so that a ballot-paper may be forwarded to each person included in each of the rolls.(2) A ballot-paper for an election must contain:(a) the names of the candidates arranged in the order determined in accordance with subclause (1) (a), with a small square set opposite each name, and(b) if, in the opinion of the returning officer, the names of two or more of the candidates are so similar as to cause confusion, such other matter as will, in the opinion of the returning officer, distinguish between those candidates, and(c) such directions as to the manner in which a vote is to be recorded, and the ballot-paper returned to the returning officer, as the returning officer considers appropriate.
386 Distribution of ballot-papers
The returning officer must, as soon as practicable after the printing of the ballot-papers for an election, forward to each person included in the roll for the election:(a) a ballot-paper initialled by the returning officer or by a person authorised by the returning officer in that behalf, and(b) an unsealed reply-paid envelope addressed to the returning officer and bearing on the back the words “Name and address of voter” and “Signature of voter”, together with appropriate spaces for the insertion of the person’s name, address and signature.
(1) At any time before the close of the ballot, the returning officer may supply a duplicate ballot-paper to any voter to whom a ballot-paper was forwarded if the voter satisfies the returning officer by statutory declaration that the ballot-paper has been spoilt, lost or destroyed, and that the voter has not already voted in the election to which the ballot-paper relates.(2) The returning officer is to maintain a record of all duplicate ballot-papers supplied under this clause.
In order to vote in an election, an elector must:(a) complete the ballot-paper in accordance with the directions printed on it, and(b) place the completed ballot-paper (folded so that the vote cannot be seen) in the envelope addressed to the returning officer and forwarded with the ballot-paper, and(c) seal the envelope, and(d) insert his or her full name and address on the back of the envelope and sign the back of the envelope, and(e) return the envelope to the returning officer so that it is received by the returning officer before the close of the ballot.
(1) In any ballot, the returning officer must reject any envelope purporting to contain a ballot-paper, being an envelope:(a) that is not received by the returning officer before the close of the ballot, or(b) that is unsealed,without opening the envelope or inspecting the ballot-paper.(2) On receipt, before the close of the ballot, of an envelope purporting to contain a ballot-paper, the returning officer must examine the name on the back of the envelope and:(a) if the returning officer is satisfied that a person of that name is included in the relevant roll for the election, accept the ballot-paper in the envelope for scrutiny without opening the envelope and draw a line through that person’s name in the roll, or(b) if the returning officer is not so satisfied, or if a signature does not appear on the back of the envelope, reject the ballot-paper in the envelope without opening the envelope.(3) If it appears to the returning officer that the signature on the back of any such envelope is not the signature of the person whose name and address appear on the back of the envelope, the returning officer may make such inquiries as the returning officer thinks fit. If the returning officer is satisfied after making those inquiries that the signature is not the signature of that person, the returning officer is to reject the ballot-paper in the envelope without opening the envelope.
390 Ascertaining result of ballot
The result of a ballot is to be ascertained by the returning officer as soon as practicable after the close of the ballot.
Each candidate in a ballot is entitled to appoint, by notice in writing to the returning officer, a scrutineer to represent the candidate at all stages of the scrutiny.
(1) At the scrutiny of votes in a ballot, a ballot-paper must be rejected as informal if:(a) it is neither initialled by the returning officer (or by a person authorised by the returning officer in that behalf) nor bears a mark prescribed as an official mark for the purposes of section 122A (3) of the Parliamentary Electorates and Elections Act 1912, or(b) it has on it any mark or writing which, in the opinion of the returning officer, could enable any person to identify the voter who completed it, or(c) it has not been completed in accordance with the directions shown on it.(2) A ballot-paper must not be rejected as informal merely because:(a) there is any mark or writing on it that is not authorised or required by this Division (not being a mark or writing referred to in subclause (1) (b)) if, in the opinion of the returning officer, the voter’s intention is clearly indicated on the ballot-paper, or(b) the number of candidates the voter has recorded a vote for is less than the number to be elected.(3) The scrutiny of votes in a ballot is to be conducted as follows:(a) the returning officer must produce unopened the envelopes containing the ballot-papers accepted for scrutiny under clause 389 in respect of the ballot, other than any envelope purporting to contain a ballot-paper rejected under clause 389 (3),(b) the returning officer must then open each such envelope, extract the ballot-paper and (without unfolding it) place it in a locked ballot-box,(c) when the ballot-papers from all the envelopes so opened have been placed in the ballot-box, the returning officer must then unlock the ballot-box and remove the ballot-papers,(d) the returning officer must then examine each ballot-paper and reject those that are informal,(e) the returning officer must then proceed to count the votes and ascertain the result of the election in accordance with clause 393.
(1) In any election the method of counting votes is to be the “first past the post” method, that is, the candidate or candidates with the most votes is or are taken to be elected.(2) If the number of candidates to be elected cannot be determined because of an equality of votes, the candidate taken to be elected is the candidate whose name is drawn by lot from a receptacle containing the names of each of the candidates having equal votes.
394 Notification of result of election
(1) As soon as practicable after a candidate has been elected, the returning officer must notify the Minister, in writing, of the name of the candidate or candidates so elected.(2) The Minister is to publish written notice of the appointment of elected industry members in the Gazette.
395 Decisions of returning officer final
If the returning officer is permitted or required by the Act or this Division to make a decision on any matter relating to the conduct of a ballot in an election, the decision of the returning officer on that matter is final.
Any person who:(a) votes, or attempts to vote, more than once in any election, or(b) votes, or attempts to vote, in an election in which the person is not entitled to vote, or(c) makes a false or wilfully misleading statement (not being a statement verified by statutory declaration):is guilty of an offence.(i) to the returning officer in connection with an election, or(ii) in any document that the person furnishes for the purposes of an election,Maximum penalty: 5 penalty units.
Where a candidate dies after the close of nominations and before the close of the ballot for an election:(a) the returning officer must cause a notification of the death to be published in the Gazette, and(b) all proceedings in the election taken after the Director-General notified the returning officer that the election was required to be held are to be of no effect and those proceedings must be taken again.
Division 7 Provisions relating to members and procedure of Management Advisory Committees
In this Division:industry member means a member of a MAC elected and appointed pursuant to section 230 (2) (a) of the Act.
MAC means a Management Advisory Committee.
member means a member of a MAC.
non-elected member means a member of a MAC appointed pursuant to section 230 (2) (b) of the Act.
returning officer means the returning officer for an election (within the meaning of Division 6 of this Part).
(1) For the purposes of section 230 (2) (b) of the Act, non-elected members are to be appointed from among the following interested groups:(a) NSW Fisheries,(b) groups representing recreational fishers,(c) the Nature Conservation Council,(d) groups representing indigenous Australians,(e) such other groups as the Minister considers appropriate.(2) The number of non-elected members appointed to a MAC is to be less than the number of industry members of the MAC.(3) At least one of the non-elected members appointed to each MAC is to be a person selected from a panel of nominees of the Nature Conservation Council.(4) (Repealed)
401 Appointment of Nature Conservation Council representatives
(1) For the purposes of clauses 399 (1) (c) and 400 (c), the Minister is to request the Nature Conservation Council to nominate one or more persons from among its officers and members as a candidate or as candidates for appointment to the MAC concerned.(2) The Minister may decline to accept the nomination of any such candidate. In such a case the Minister:(a) is to advise the Nature Conservation Council of that decision and of the reason for that decision, and(b) if the Minister considers it appropriate, is to give the Nature Conservation Council an opportunity to nominate another candidate or candidates.(3) If the Nature Conservation Council:(a) fails to nominate a candidate, or a sufficient number of candidates, for appointment to the relevant MAC within 60 days after being requested to do so by the Minister, or(b) fails to nominate within that period a candidate, or a sufficient number of candidates, whose nomination is, or whose nominations are, accepted by the Minister,the Minister may appoint as a member of that MAC any person or persons whom the Minister considers suitable to represent the interests of the Council, instead of a person nominated by the Council.
(1) A member may, from time to time, appoint a person to be the deputy of the member, and may at any time revoke any such appointment.(2) Such an appointment may be made only with the approval of the Minister. The Minister may revoke such approval at any time.(3) In the absence of a member, the member’s deputy:(a) may, if available, act in the place of the member, and(b) while so acting, has all the functions of the member and is to be taken to be the member.(4) A person, while acting in the place of a member, is entitled to be paid such allowances as the Minister may from time to time determine in respect of the person.
Subject to this Division:(a) an industry member holds office for a term of 3 years but is eligible (if otherwise qualified) for re-election and re-appointment, and(b) a non-elected member holds office for the term specified in his or her appointment (not exceeding 3 years) but is eligible (if otherwise qualified) for re-appointment.
A member is entitled to be paid such allowances as the Minister from time to time determines in respect of the member.
405 Vacancy in office of a member
(1) The office of a member becomes vacant if the member:(a) dies, or(b) completes a term of office and is not re-elected or re-appointed, or(c) resigns the office by instrument in writing addressed to the Minister, or(d) is removed from office by the Minister under this clause, or(e) is absent from 3 consecutive meetings of the MAC of which reasonable notice has been given to the member personally or in the ordinary course of post, except on leave granted by the Minister or unless, before the expiration of 4 weeks after the last of those meetings, the member is excused by the Minister for having been absent from those meetings, or(f) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or(g) becomes a mentally incapacitated person.(2) The Minister may remove a non-elected member from office at any time.(3) The Minister may remove an industry member from office if the member:(a) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or(b) is convicted of an offence under the Act, this Regulation or any other regulation made under the Act or an offence relating to theft of fish, fishing gear or a boat or intentional damage to fishing gear or a boat, or(c) ceases to be qualified to be elected to the MAC (see Division 5 of this Part), or(d) has, in the opinion of the Minister, ceased to effectively represent the shareholders or commercial fishers he or she was elected to represent, or(e) has, in the opinion of the Minister, engaged in conduct that is likely to bring the fishing industry into disrepute, or(f) has been formally reprimanded by the chairperson of the MAC of which he or she is a member for unruly or disruptive behaviour at a meeting of the MAC on not less than 3 occasions (whether occurring at the same meeting or at different meetings of the MAC).
406 Filling of vacancy in office of member
(1) If the office of an industry member becomes vacant because the term of office of the member has ended, an election is to be held in accordance with Division 6 of this Part for the purpose of appointing a new member.(2) If a vacancy occurs in the office of an industry member otherwise than because the term of office of the member has ended, the Minister may appoint a person to fill the office for the remainder of that term, being a person who would be qualified to be elected to the office and who the Minister decides, after consultation with the relevant industry sector, is appropriate for that office.
407 General procedure for calling and holding meetings of a MAC
(1) The procedure for the calling and holding of meetings of a MAC is to be determined by the Minister, subject to clause 408.(2) The Minister is to call at least 2 meetings of a MAC each calendar year, unless otherwise determined by the MAC.
408 Transaction of business outside meetings or by telephone
(1) A MAC may, with the written approval of the Director-General, transact any of its business by the circulation of papers among all the members of the MAC the time being, and a resolution in writing approved in writing by a majority of those members is taken to be a decision of the MAC.(2) A MAC may, with the written approval of the Director-General, transact any of its business at a meeting at which members (or some members) participate by telephone, closed-circuit television or other means, but only if any member who speaks on a matter before the meeting can be heard by the other members.(3) For the purposes of:(a) the approval of a resolution under subclause (1), or(b) a meeting held in accordance with subclause (2),the chairperson and each member have the same voting rights as they have at an ordinary meeting of the MAC.(4) A resolution approved under subclause (1) is, subject to the regulations, to be recorded in the minutes of the meetings of the MAC.(5) Papers may be circulated among the members for the purposes of subclause (1) by facsimile or other transmission of the information in the papers concerned.
The quorum for a meeting of a MAC consists of the majority of its industry members for the time being.
(1) A decision supported by a majority of votes cast at a meeting of a MAC at which a quorum is present is the decision of the MAC, but only if the majority of members present are industry members.(2) (Repealed)