Part 6 Commercial share management fisheries
134 Persons prohibited from holding shares (section 49 (2) of the Act)
(1) A foreign person or a foreign-owned body is prohibited from holding shares in a share management fishery.(2) A subsidiary (within the meaning of the Corporations Act 2001 of the Commonwealth) of a foreign person or of a foreign-owned body is prohibited from holding shares in a share management fishery.(3) A person is prohibited from holding shares in a share management fishery if the Minister is satisfied that the person is holding the shares on behalf of, or for the benefit of, a person who is prohibited by this clause from holding shares in a share management fishery.(4) Shares in a share management fishery may not be issued by the Minister to a person who is prohibited by this clause from holding shares or be recorded in the Share Register.(5) The Minister is to cancel any shares held by a person prohibited by this clause from holding shares. However, the Minister may allow the person to dispose of the shares in accordance with Part 3 of the Act.(6) In this clause:foreign person means a person other than:
(a) an individual ordinarily resident in Australia (within the meaning of the Foreign Acquisitions and Takeovers Act 1975 of the Commonwealth), or(b) a company or an exempt body (within the meaning of the Corporations Act 2001 of the Commonwealth).foreign-owned body means a body corporate that has a substantial foreign ownership.
(7) For the purposes of this clause, a body corporate has a substantial foreign ownership if the Minister is satisfied that more than 20% of its total paid-up share capital is held by foreign persons or (if it does not have a share capital) that foreign persons are in a position to control more than 20% of the voting power in the body.(8) For the purposes of this clause, the Minister may have regard to any relevant provisions of the Corporations Act 2001 of the Commonwealth for the purposes of determining whether a person has an interest in shares or voting power in a body corporate.
135 Determination of catch history
(1) For the purposes of section 51 (4) of the Act, the following documents are prescribed:(a) a verified record of a commercial fishers’ co-operative,(b) a verified record relating to the income tax liability of a commercial fisher,(c) a verified record of any fish processing company (whether a wholesaler or retailer).(2) In this clause, a reference to a verified record is a reference to an original record, or a copy of a record, audited by a registered company auditor (within the meaning of the Corporations Act 2001 of the Commonwealth) or that forms part of a record audited by a registered company auditor.Note. This clause prescribes the documents which the Minister may have regard to in determining the catch history of a person (in addition to the records, kept by the Director-General, of fish taken by the person).
137 Special endorsements to take fish in share management fishery
For the purposes of section 70 (5) of the Act, the fee payable for an endorsement to which section 70 applies (being an endorsement which authorises the taking of fish for sale in a share management fishery even though the commercial fisher is not entitled under Part 3 of the Act to have his or her licence endorsed) is $119.
138 Transfers and other dealings in shares—general
(1) For the purposes of section 71 (5) of the Act, before the commencement of the management plan for a fishery, section 71 of the Act applies to allow the transfer, assignment or transmission of the shares of a person (the shareholder) in the fishery only if:(a) all of the shares of the shareholder that are a component of the same fishing business (whether or not those shares are shares in the same fishery) are transferred, assigned or transmitted to one person (the transferee), and(b) the transferee becomes the owner of that fishing business (and all its components).(2) For the purposes of section 54 (3) of the Act, an acquisition of shares by a dealing that is allowed under subclause (1) is declared to be an authorised acquisition.(3) Nothing in this clause authorises the mortgaging of shares in a share management fishery before the commencement of the management plan for the fishery.Note. Under section 54 (3) of the Act, a holder of shares in a limited access fishery is not entitled to have his or her licence endorsed to take fish in the limited access fishery (or to nominate another person to do so) if all the shares held by the person were acquired by dealings after the initial issue of shares in the fishery, unless the acquisition is declared by the regulations to be an authorised acquisition.
139 Forfeiture of shares for failure to pay certain contributions
(1) For the purposes of section 75 (4) (b) of the Act, the Minister may order that the shares (or any of the shares) of a shareholder in a share management fishery be forfeited if the shareholder has failed to pay a community contribution or other amount due under Part 3 of the Act. However, the Minister is to order the forfeiture only of the number of shares that will be required, in the opinion of the Minister, to recover the amount due.(2) The Minister is not to order forfeiture of shares unless the Minister is satisfied that all reasonable steps have been taken to recover the amount due or the shareholder’s whereabouts are unknown.(3) Following the sale of the forfeited shares, any part of the purchase price remaining after deduction of the amount of the community contribution or other amount due and the expenses reasonably incurred in connection with the sale is to be paid to the shareholder.
140 Making of appeals to Share Appeal Panel (section 84 of the Act)
(1) An appeal to the Share Appeal Panel must be lodged within 90 days after the person making the appeal is notified of the result of his or her application for shares.(2) An appeal is to be made in a form approved by the Director-General and is to be accompanied by a lodgment fee of $275.(3) The Director-General may waive or reduce the fee, or refund the fee or any part of it, in such circumstances as the Director-General considers appropriate.(4) The Director-General is to notify the person making the appeal of the receipt of his or her appeal.
141 Fee for registration of dealings in shares
(1) For the purposes of section 91 (3) (d) of the Act:(a) the prescribed fee in respect of an application for registration of a transaction that purports to have the effect of transferring, assigning or transmitting a share is $238, and(b) the prescribed fee in respect of an application for registration of a transaction that purports to have the effect of mortgaging or otherwise creating an interest in a share (other than a transaction referred to in paragraph (a)) is $417.(2) This clause does not apply in respect of a share management fishery if the management plan for the fishery prescribes a different fee in respect of an application referred to in subclause (1).
142 Fee for inspection of Share Register and registered documents
(1) For the purposes of section 97 (1) of the Act:(a) the prescribed fee for inspection of the Share Register is:(i) in the case of an inspection that is conducted with the assistance of an officer of NSW Fisheries, $12 for each entry inspected, and(ii) in any other case, nil, and(b) the prescribed fee for inspection of copies of the documents retained by the Director-General under section 91 of the Act is $60 in relation to each document that is inspected.(2) In the case of an inspection of more than one entry in the Register or more than one document retained under section 91 of the Act, the Director-General may, having regard to the time taken by officers of NSW Fisheries to assist in the inspection, reduce the fee payable under this clause.
Division 2 Application of Part 3 of the Act to redefined share management fisheries
(1) Pursuant to section 45 of the Act, this Division modifies the application of Part 3 of the Act in respect of any redefinition of the estuary general fishery or the estuary prawn trawl fishery (or both) that is effected by means of a relevant proclamation made on or after the commencement of this Division and before the commencement of the management plan for the fishery.(2) For the purposes of this Division, a relevant proclamation means a proclamation under section 42 of the Act that omits the description of the estuary general fishery or the estuary prawn trawl fishery from Schedule 1 to the Act and inserts a new description of the fishery in Schedule 1 to the Act that operates to exclude the waters of Port Jackson from the description of the fishery (whether or not any other changes are made to the description of the fishery).(3) In this Division:existing fishery means the estuary general fishery, or the estuary prawn trawl fishery, as described in Schedule 1 to the Act immediately before the commencement of this Division.
Port Jackson includes Sydney Harbour.
redefined fishery means the estuary general fishery, or the estuary prawn trawl fishery, as described in Schedule 1 to the Act immediately after a relevant proclamation in relation to that fishery takes effect.
share cancellation date, in relation to an existing fishery, means the date the description of the fishery is omitted from Schedule 1 to the Act by means of a relevant proclamation (being the date on which shares in the fishery are cancelled as a consequence of section 44 (2) of the Act).
(4) To avoid doubt, a reference in this Division to a fishery that corresponds to another fishery is a reference to a fishery with the same name as the other fishery.(5) For the purposes of this Division, a share is taken to confer an entitlement to take fish in particular waters if the shareholder is entitled, as a result of holding that share, to have his or her commercial fishing licence endorsed for the taking of fish in those waters or to nominate another person to have his or her commercial fishing licence so endorsed (or would be so entitled had all shares held by the person been issued to the person on a provisional basis in the initial issue of shares in the fishery).Note. Section 44 (2) of the Act provides that if the description of a fishery is omitted from Schedule 1 to the Act (including for the purpose of redefining an existing share management fishery), all shares in the fishery are cancelled. It is intended that the estuary general fishery and estuary prawn trawl fisheries will be redefined to exclude the waters of Port Jackson from the fisheries and to make other changes by way of clarification to the description of the estuary general fishery. This Division modifies the application of Part 3 of the Act in respect of the redefined fisheries.
The Minister is not required to consult relevant commercial fishing industries bodies about whether a redefined fishery should be a share management fishery.
142C Identification of fishery and shareholders
(1) Sections 46, 47, 48, 50 and 51 of the Act do not apply in respect of a redefined fishery.(2) The Minister is to issue shares in a redefined fishery to persons who are eligible for shares in the redefined fishery in accordance with their entitlement to shares under this Division.(3) The persons who are eligible for shares in a redefined fishery are the persons who, immediately before the share cancellation date for the corresponding existing fishery, hold shares provisionally issued in that existing fishery.(4) A person who is eligible for shares in a redefined fishery is, subject to this clause, eligible for the same number of shares, and shares of the same class, or conferring the same entitlements, as the shares held by the person in the corresponding existing fishery immediately before the share cancellation date.(5) A person who, immediately before the share cancellation date in relation to an existing fishery, holds shares in the existing fishery that confer an entitlement to take fish in the waters of Port Jackson (or shares that would do so, but for a fishing closure under section 8 of the Act) is not, on that basis, eligible for shares in the corresponding redefined fishery.(6) However, if the person holds any shares in an existing fishery that confer an entitlement to take fish in estuarine waters other than the waters of Port Jackson, the person is eligible for shares in the corresponding redefined fishery that confer the same entitlements in respect of those other waters as the shares held by the person in the existing fishery immediately before the share cancellation date.(7) Shares in a redefined fishery are to be issued by the Minister on a provisional basis pending the commencement of the management plan for the redefined fishery.(8) On or as soon as practicable after the share cancellation date in relation to an existing fishery, the Minister is to give each person who, immediately before that date, holds shares in the fishery or is an applicant for shares in the fishery who has duly lodged an appeal to the Share Appeal Panel that is still pending, a notice that:(a) advises the person that the fishery has been redefined and, as a result, shares in the fishery are cancelled, and(b) advises the person of the number of shares (if any) provisionally issued to the person in the corresponding redefined fishery and the date the provisional issue of shares in the redefined fishery takes effect, and(c) contains such other information in relation to the redefinition of the fishery as the Minister considers appropriate.(9) Shares issued in a redefined fishery may be described or identified in the same manner as shares issued in the corresponding existing fishery if the Minister considers it appropriate.(10) Nothing in this Division permits shares to be issued in the estuary general fishery that confer any entitlement to take fish in the waters of Jervis Bay by use of a fishing method in those waters that falls within the description of the ocean hauling fishery (as described in Schedule 1 to the Act).
142D Appeals pending on share cancellation date
(1) There is no appeal against a decision relating to the provisional issue of shares in a redefined fishery, except to the extent provided by this clause.(2) If an appeal in relation to the provisional issue of shares in an existing fishery was duly made to the Share Appeal Panel before the share cancellation date in relation to the fishery and the appeal is still pending before the Share Appeal Panel on the share cancellation date, that appeal is to be heard and determined by the Panel under Part 3 of the Act as if the existing fishery had not been redefined.(3) If, as a result of a decision of the Share Appeal Panel on such an appeal, a person is eligible for shares in an existing fishery, the person is taken as a consequence of that decision to be eligible for shares in the corresponding redefined fishery of the same class or that confer the same entitlements.(4) Subclause (3) applies only if the Share Appeal Panel decides the person is eligible for shares in an existing fishery that confer an entitlement to take fish in estuarine waters other than the waters of Port Jackson.(5) Any shares issued in a redefined fishery as a result of a decision of the Share Appeal Panel may be issued on a provisional basis, pending the final issue of shares in the redefined fishery.(6) Sections 52, 52A and 54 (2) (a) of the Act apply in relation to a redefined fishery as if a reference to an appeal to the Share Appeal Panel were a reference to an appeal referred to in subclause (2).
Section 52 (3) of the Act applies in relation to a redefined fishery as if a reference to an applicant for shares were a reference to an applicant for shares in the corresponding existing fishery.
142F Continuation of limited access arrangements
(1) Section 53 of the Act does not apply in respect of a redefined fishery.(2) Shares issued provisionally in a redefined fishery take effect on the date advised by the Minister under clause 142C as the date on which the provisional issue of shares in the redefined fishery takes effect. That date is taken, for the purposes of section 54 (1) and (2) of the Act, to be the day appointed for the commencement of limited access to the redefined fishery.Note. From the commencement of the limited access stage, only shareholders in the redefined fishery will be entitled to take fish in the fishery or nominate other persons to do so (see section 54 (2) of the Act).(3) A holder of shares in a redefined fishery that is a limited access fishery is not entitled to have his or her licence endorsed to take fish in the redefined fishery (or to nominate another person to do so) if all shares held by the person in the corresponding existing fishery immediately before the share cancellation date were acquired by dealings after the initial issue of shares in that existing fishery, unless the acquisition concerned was of a type declared by the regulations to be an authorised acquisition for the purposes of section 54 (3) of the Act.(4) Subclause (3) applies in respect of a redefined fishery in addition to the provisions of section 54 (3) of the Act.Note. Section 54 (3) of the Act contains a similar provision to subclause (3) that prevents a shareholder from acquiring an entitlement to an endorsement in the redefined fishery if all shares in the fishery are acquired after the initial issue of shares in the redefined fishery.(5) Until a redefined fishery becomes a limited access fishery, a commercial fishing licence does not authorise a person to take fish in the redefined fishery unless:(a) the licensee is a person who held shares in the corresponding existing fishery immediately before the share cancellation date or is an applicant for shares in the corresponding existing fishery who duly lodged an appeal to the Share Appeal Panel and whose appeal was pending immediately before the share cancellation date, or(b) the licensee is duly nominated in the Share Register by a person referred to in paragraph (a) to take fish on behalf of that person,and the licence is duly endorsed under Part 3 of the Act for the taking of fish in the corresponding existing fishery.
142G Continuation of endorsements, nominations and regulations relating to existing fisheries
(1) The endorsement of a commercial fishing licence to take fish in an existing fishery (other than a Port Jackson endorsement) becomes, when the redefined fishery becomes a limited access fishery, an endorsement under Part 3 of the Act to take fish in the corresponding redefined fishery, subject to this clause.(2) Any such endorsement does not authorise the taking of fish in the waters of Port Jackson.(3) A person duly nominated in the Share Register to take fish on behalf of a shareholder in an existing fishery, immediately before the share cancellation date for the fishery, is taken, when the corresponding redefined fishery becomes a limited access fishery, to have been duly nominated in the Share Register to take fish on behalf of the shareholder in the redefined fishery.(4) Any provisions of the regulations that apply to an existing fishery immediately before the share cancellation date, including any restricted fishery provisions that applied to the existing fishery as a consequence of section 55 (3) of the Act, are taken to continue to apply, on and from the share cancellation date, to the corresponding redefined fishery (with any necessary modifications), until those provisions are repealed or until the commencement of the management plan for the redefined fishery (whichever occurs first).(5) In this clause, a Port Jackson endorsement means an endorsement on a commercial fishing licence issued before the commencement of this Division, being an endorsement that authorises the taking of fish in the waters of Port Jackson and no other waters.