Part 5A Fishing business transfer rules
(1) Expressions used in this Part have the same meaning as they have in Division 4C of Part 2 of the Act.(2) In this Part:dual operator fishing business means a fishing business the components of which include one or more NSW fishing authorities and one or more external fishing authorities.
external fishing authority means a fishing authority that is not a NSW fishing authority.
Division 2 Transfer of dual operator fishing businesses
133D Surrender of fishing authority to be treated as transfer
(1) For the purposes of the definition of transfer in section 34P of the Act, a transfer of a component of a fishing business includes the surrender of an external fishing authority that is a component of a fishing business.(2) For the purposes of this Part, the surrender of an external fishing authority means the surrender, voluntary cancellation or relinquishment of an external fishing authority that is a component of a fishing business (whether or not for consideration).
133DA Notice of transfer of external fishing authorities
A person must not transfer (including by surrender) an external fishing authority that is a component of a dual operator fishing business unless the person gives written notice of the proposed transfer to the Minister no less than 7 days before the proposed transfer, or within a lesser period approved by the Minister in the particular case.Maximum penalty: 50 penalty units.
133E Transfer of external fishing authorities by dual operator fishing businesses
(1) An external fishing authority that is a component of a dual operator fishing business is not to be transferred (other than by surrender of the authority) to a person unless:(a) all components of the fishing business (other than NSW fishing authorities) are transferred to that same person, and(b) all NSW fishing authorities that are a component of the fishing business are transferred to that same person or surrendered to the Minister for cancellation.(2) An external fishing authority that is a component of a dual operator fishing business is not to be transferred by surrender of the authority unless all NSW fishing authorities that are components of the fishing business are surrendered to the Minister for cancellation.(3) If an external fishing authority that is a component of a dual operator fishing business is transferred in contravention of subclause (1) or (2) or clause 133DA, the Minister may take one or more of the following actions:(a) cancel or refuse to renew any NSW fishing authority that is a component of the fishing business,(b) refuse to transfer a NSW fishing authority that is a component of the dual operator fishing business, or refuse to issue a new NSW fishing authority, to any person to whom a component of the dual operator fishing business is transferred,(c) refuse to issue a new NSW fishing authority if eligibility for that fishing authority is determined on the basis of catch history that is a component of the dual operator fishing business,(d) impose (in accordance with the Act) conditions on any NSW fishing authority that is a component of the fishing business, so as to restrict the fishing activities of the fishing business, or exercise any other powers conferred on the Minister by the Act so as to restrict the fishing activities of the fishing business.(4) Despite a contravention of subclause (2), the Minister may defer taking any action under subclause (3) until an assessment is undertaken of the actual or potential level of fishing effort by the fishing business, or by fishing businesses generally, in any waters to which the Act applies since the surrender of an external fishing authority or a class of external fishing authorities.(5) The Director-General may refuse an application to revoke or amend a fishing business determination in respect of a dual operator fishing business if satisfied that:(a) the purpose of the application is to avoid the requirements of subclause (1) or (2) or clause 133DA, or(b) a component of the fishing business has been transferred in contravention of subclause (1) or (2) or clause 133DA.
Division 3 Transfer of restricted fishery endorsements
133F Transfer of sea urchin and turban shell endorsements
(1) For the purposes of section 114 of the Act, the transfer of a sea urchin endorsement or turban shell endorsement, in accordance with this clause, is authorised.(2) A sea urchin endorsement or turban shell endorsement that is a component of a fishing business may be transferred by the owner of the fishing business to another person only if:(a) all components of the fishing business are transferred to that person, or(b) the transfer is part of an arrangement for the endorsement concerned to be surrendered to the Minister for cancellation.Note 1. Endorsements in a restricted fishery are not transferable unless authorised by the regulations under section 114 of the Act.Note 2. Clause 171 provides that if the transfer of an endorsement is in accordance with this Part, the person who transfers the endorsement ceases to be eligible for that endorsement, and the person to whom the transfer is made becomes eligible for that endorsement.(3) In this clause:sea urchin and turban shell endorsement means an endorsement that authorises the taking of fish for sale in the sea urchin and turban shell restricted fishery.
133G Transfer of southern fish trawl endorsements
(1) For the purposes of section 114 of the Act, the transfer of a southern fish trawl endorsement, in accordance with this clause, is authorised.(2) A southern fish trawl endorsement that is a component of a fishing business may be transferred by the owner of the fishing business to another person (the transferee) only if:(a) all components of the fishing business are transferred to the transferee, or(b) all shares (if any) in the ocean trawl fishery that are a component of the fishing business are transferred to the transferee and that transferee is, immediately before the transfer, an owner of a fishing business the components of which include a share in a fishery referred to in clause 133J (2), or(c) the transferee is, immediately before the transfer, a shareholder in the ocean trawl fishery, or(d) the transfer is part of an arrangement for the endorsement concerned to be surrendered to the Minister for cancellation.Note 1. Endorsements in a restricted fishery are not transferable unless authorised by the regulations under section 114 of the Act.Note 2. Clause 194 provides that if the transfer of an endorsement is in accordance with this Part, the person who transfers the endorsement ceases to be eligible for that endorsement, and the person to whom the transfer is made becomes eligible for that endorsement.(3) In this clause:southern fish trawl endorsement means an endorsement that authorises the taking of fish for sale in the southern fish trawl restricted fishery.
(1) If an endorsement that is a component of a fishing business is transferred in contravention of this Division, the Minister may take one or more of the following actions:(a) cancel or refuse to renew any NSW fishing authority that is a component of the fishing business or of the fishing business of the other party to the transfer,(b) refuse to transfer, or to approve the transfer of, a NSW fishing authority that is a component of the fishing business, or refuse to issue a new NSW fishing authority to the other party to the transfer,(c) impose (in accordance with the Act) conditions on any NSW fishing authority that is a component of the fishing business or of the fishing business of the other party to the transfer (or both), so as to restrict the fishing activities of the fishing business, or exercise any other powers conferred on the Minister by the Act so as to restrict the fishing activities of either or both fishing businesses.(2) The Director-General may refuse an application to revoke or amend a fishing business determination of a fishing business if satisfied that an endorsement that is a component of that fishing business has been transferred in contravention of this Division.
In this Division:ocean share means a share of any of the following classes:
(a) Ocean trawl—inshore prawn shares,(b) Ocean trawl—offshore prawn shares,(c) Ocean trawl—deepwater prawn shares,(d) Ocean trawl—fish northern zone shares,(e) Ocean trap and line—spanner crab northern zone shares,(f) Ocean hauling—general ocean hauling shares—Regions 1, 2, 3, 4, 5, 6 and 7,(g) Ocean hauling—pilchard, anchovy and bait net (hauling) shares—Regions 1, 2, 3, 4, 5, 6 and 7,(h) Ocean hauling—garfish net (hauling) shares—Regions 1, 2, 3, 4, 5, 6 and 7,(i) Ocean hauling—hauling net (general purpose) shares—Regions 1, 2, 3, 4, 5, 6 and 7,(j) Ocean hauling—purse seine net shares.southern fish trawl endorsement means an endorsement that authorises the taking of fish for sale in the southern fish trawl restricted fishery.
(1) For the purposes of section 34T of the Act, the owner of a fishing business may transfer shares that are a component of the fishing business only in accordance with this Division.(2) This Division applies in respect of transfers of shares in the following fisheries only:(a) ocean trawl fishery,(b) ocean trap and line fishery,(c) ocean hauling fishery,(d) estuary general fishery,(e) estuary prawn trawl fishery.(3) If the transfer of shares also involves a transfer of an endorsement in a restricted fishery, Division 3 of this Part must also be complied with.
133K Transfer to owners in the same fishery
(1) A share that is a component of a fishing business may be transferred by the owner of the fishing business (the transferor) to another person (the transferee) if the transferee is, immediately before the transfer, an owner of a fishing business the components of which include a share or shares in the same fishery as the share being transferred.(2) If the share being transferred is an ocean share, the share may be transferred to the transferee only if:(a) the transferee holds a share or shares of that class immediately before the transfer, or(b) all shares of that class held by the transferor, that are a component of the transferor’s fishing business, are transferred to the transferee.(3) If the share being transferred is an ocean share in the ocean trawl fishery, the share may also be transferred if the transferee is, immediately before the transfer, the owner of a fishing business the components of which include a southern fish trawl endorsement and all ocean shares of the class proposed to be transferred, that are a component of the transferor’s fishing business, are transferred to the transferee.
133L Transfer to owners in other fisheries
(1) A share in a fishery that is a component of a fishing business may be transferred by the owner of the fishing business (the transferor) to another person if the person is, immediately before the transfer, an owner of a fishing business the components of which include a share in another fishery referred to in clause 133J (2) and all shares held in the fishery, that are a component of the transferor’s fishing business, are transferred to that person.(2) If the share being transferred is a share in the ocean trawl fishery, any southern fish trawl endorsement that is a component of the same fishing business must also be transferred to the person.
A share that is a component of a fishing business may be transferred by the owner of the fishing business to any person (whether or not the owner of a fishing business) if:(a) all components of the fishing business are transferred to that person, or(b) the transfer is part of an arrangement for the shares concerned to be surrendered to the Minister for cancellation.
(1) If a share that is a component of a fishing business is transferred in contravention of this Division, the Minister may take one or more of the following actions:(a) cancel or refuse to renew any NSW fishing authority that is a component of the fishing business or of the fishing business of the other party to the transfer,(b) refuse to transfer, or to approve the transfer of, a NSW fishing authority that is a component of the fishing business, or refuse to issue a new NSW fishing authority to the other party to the transfer,(c) impose (in accordance with the Act) conditions on any NSW fishing authority that is a component of the fishing business or of the fishing business of the other party to the transfer (or both), so as to restrict the fishing activities of the fishing business, or exercise any other powers conferred on the Minister by the Act so as to restrict the fishing activities of either or both fishing businesses.(2) The Director-General may refuse an application to revoke or amend a fishing business determination of a fishing business if satisfied that a share that is a component of that fishing business has been transferred in contravention of this Division.Note. In addition, under clause 133O, the Director-General may refuse to approve a transfer that contravenes this Part.
Division 5 Dealings in endorsements and shares
133O Approval of transfers by Director-General
(1) In addition to the other requirements relating to the transfer of components of fishing businesses under this Part, an endorsement or share that is a component of a fishing business referred to in this Part may be transferred only with the approval of the Director-General.(2) The Director-General may refuse to approve a transfer of an endorsement or share that is a component of a fishing business if:(a) the transaction would contravene the Act, or the regulations, or(b) the person to whom the endorsement or share is to be transferred is a person who:(i) is prohibited from holding the endorsement or share, or(ii) is a natural person who may not be nominated to take fish on behalf of the fishing business, or(iii) could be refused an endorsement, or(c) the Director-General is satisfied that the purpose of the transaction is to avoid share forfeiture, or(d) any fee, contribution or other amount owing under the Act or the regulations in respect of the endorsement or share has not been paid, or(e) any mortgage that applies to the share has not been discharged or cancelled, or(f) there is a nominated fisher in respect of the fishing business and the nomination has not been revoked by the owner of the fishing business transferring the endorsement or share.(3) An application for the Director-General’s approval under this clause:(a) is to be made jointly by the owner of the fishing business transferring the endorsement or share (as the case may be) and the person to whom the endorsement or share is to be transferred, and(b) is to be in a form approved by the Director-General.(4) If the transfer relates to shares, the approved form of application under this clause may include or be comprised of the approved form of application for registration of the transaction under section 91 of the Act, so as to enable the applications for approval and registration to be dealt with together.Note. A transaction that has the effect of transferring, assigning or transmitting a share is to be registered in the Share Register, and a prescribed fee in respect of the application for registration is payable under clause 141.(5) If the transfer relates to an endorsement, and no fee is charged in respect of the registration of the transaction, the Director-General may charge a fee in respect of the application for approval of $238.(6) An owner of a fishing business who proposes to transfer an endorsement or share may request that the Minister review a determination of the Director-General under this clause in relation to the transfer within 30 days after notice of the determination is given to the owner of the fishing business.(7) The Director-General is to give effect to any determination made by the Minister in respect of that review.
133P Transferee owns more than one fishing business
(1) If a transfer of an endorsement or share is permitted if the person to whom the transfer is made (the transferee) is the owner of a fishing business (or a particular kind of fishing business), and the transferee is the owner of more than one fishing business, the transferee must nominate one fishing business against which compliance with the fishing business transfer rules, in respect of that transfer, is to be assessed.(2) If the transfer is approved by the Director-General, the fishing business determination in respect of the nominated fishing business is to be amended so that the transferred endorsement or share becomes a component of the nominated fishing business.
(1) The fishing business transfer rules apply to the following transfers in the same way as they apply to a transfer made or proposed to be made by the owner of a fishing business:(a) a transfer of a fishing business, or a component of a fishing business, that is made or proposed to be made by a mortgagee, receiver, liquidator or trustee in bankruptcy in the exercise of a power of sale,(b) a transfer of a fishing business, or a component of a fishing business, that is made or proposed to be made by a person in his or her capacity as the legal personal representative of a deceased person.(2) For that purpose, a reference in this Part to the owner of a fishing business includes a reference to any such mortgagee, receiver, liquidator, trustee in bankruptcy or legal personal representative.