An Act relating to the management of fishery resources.

Part 1 Preliminary

1   Name of Act

This Act may be cited as the Fisheries Management Act 1994.

2   Commencement

This Act commences on a day or days to be appointed by proclamation.

3   Objects of Act

(1)  The objects of this Act are to conserve, develop and share the fishery resources of the State for the benefit of present and future generations.

(2)  In particular, the objects of this Act include:

(a)  to conserve fish stocks and key fish habitats, and

(b)  to conserve threatened species, populations and ecological communities of fish and marine vegetation, and

(c)  to promote ecologically sustainable development, including the conservation of biological diversity,

      and, consistently with those objects:

(d)  to promote viable commercial fishing and aquaculture industries, and

(e)  to promote quality recreational fishing opportunities, and

(f)  to appropriately share fisheries resources between the users of those resources, and

(g)  to provide social and economic benefits for the wider community of New South Wales, and

(h)  to recognise the spiritual, social and customary significance to Aboriginal persons of fisheries resources and to protect, and promote the continuation of, Aboriginal cultural fishing.

Note. At common law, the public has a right to fish in the sea, the arms of the sea and in the tidal reaches of all rivers and estuaries. The public has no common law right to fish in non-tidal waters—the right to fish in those waters belongs to the owner of the soil under those waters. However, the public may fish in non-tidal waters if the soil under those waters is Crown land. In the case of non-tidal waters in rivers and creeks, section 38 declares that the public has a right to fish despite the private ownership of the bed of the river or creek. However, the right to fish in tidal or non-tidal waters is subject to any restriction imposed by this Act.

4   Definitions

(1)  In this Act:

Aboriginal cultural fishing means fishing activities and practices carried out by Aboriginal persons for the purpose of satisfying their personal, domestic or communal needs, or for educational, ceremonial or other traditional purposes, and which do not have a commercial purpose.

Aboriginal person means a person who:

(a)  is a member of the Aboriginal race of Australia, and

(b)  identifies as an Aboriginal person, and

(c)  is accepted by the Aboriginal community as an Aboriginal person.

aquaculture is defined in Part 6.

aquaculture lease means an aquaculture lease granted or renewed under Part 6.

aquaculture permit means an aquaculture permit issued and in force under Part 6.

Australian fishing zone has the same meaning as it has in the Commonwealth Act.

biological diversity means the diversity of life and is made up of the following 3 components:

(a)  genetic diversity—the variety of genes (or units of heredity) in any population,

(b)  species diversity—the variety of species,

(c)  ecosystem diversity—the variety of communities or ecosystems.

boat means any kind of vessel, however navigated.

category 1 share management fishery means a fishery specified in Part 1 of Schedule 1.

category 2 share management fishery means a fishery specified in Part 2 of Schedule 1.

charter fishing boat licence means a licence for a boat issued under Part 4A and in force.

commercial fisher means a person who holds a commercial fishing licence.

commercial fishing licence means a commercial fishing licence issued under Division 1 of Part 4 and in force.

Commonwealth Act means the Fisheries Management Act 1991 of the Commonwealth.

Crown land means Crown land within the meaning of the Crown Lands Act 1989.

cultivate includes propagate, hatch, breed, rear and farm.

Department means the Department of Industry and Investment.

Director-General means the Director-General of the Department.

ecologically sustainable development has the same meaning as under section 6 (2) of the Protection of the Environment Administration Act 1991.

examine includes count, measure, weigh and grade.

exercise a function includes perform a duty.

fish is defined in section 5.

fisheries officer means a person for the time being appointed under Part 9 as a fisheries officer for the purposes of this Act.

Note. Under Part 9, a police officer is also a fisheries officer for the purposes of this Act.

fishery is defined in section 6.

fishing activity means the activity of taking fish, including:

(a)  searching for fish, or

(b)  any activity that can reasonably be expected to result in the locating, aggregating or taking of fish, or

(c)  carrying fish by boat from the place where they are taken to the place where they are to be landed.

fishing boat licence means a licence for a boat issued under Division 2 of Part 4 and in force.

fishing business is defined in section 34Q.

fishing business determination is defined in section 34Q.

fishing business transfer rules is defined in section 34T.

fishing closure is defined in section 8.

fishing gear means any equipment (other than a boat or aircraft) used for fishing activities.

foreign boat has the same meaning as it has in the Commonwealth Act.

freshwater means water in a river or creek that is not subject to tidal influence:

(a)  including any body of freshwater that is naturally or artificially stored (such as a freshwater lake, lagoon, dam, reservoir, pond, canal, channel or waterway), but

(b)  not including any coastal lake that is intermittently open to tidal influence.

      The regulations may, for the purpose of avoiding doubt about the application of this definition, specify the point at which any river, creek or other body of water becomes subject to tidal influence.

function includes a power, authority or duty.

habitat means any area occupied, or periodically or occasionally occupied, by fish or marine vegetation (or both), and includes any biotic or abiotic component.

leased area means the area that is the subject of an aquaculture lease.

Management Advisory Committee means a Management Advisory Committee for a fishery established under section 230.

management plan means:

(a)  in relation to a share management fishery—a management plan for the fishery made under Division 5 of Part 3, or

(b)  in relation to any other fishery—a management plan under the regulations referred to in section 40 (2) (a).

marine vegetation means any species of plant that at any time in its life must inhabit water (other than fresh water).

master of a boat means the master or other person for the time being in charge or command of the boat.

native title holder has the same meaning as it has in the Native Title Act 1993 of the Commonwealth.

net includes anything attached to a net.

noxious fish—see section 209.

noxious marine vegetation—see section 209.

owner of a fishing business is defined in section 34Q.

oyster means any bivalve mollusc of the family Ostreidae.

possession of a thing includes having the thing under control at any place, even though some other person has physical possession of the thing.

premises includes any structure, building or place, whether built on or not.

process fish means cut up, break up, shell, skin, shuck, purge, cook, pack, chill, freeze, can, preserve or otherwise treat or process fish.

prohibited size fish means a fish declared by the regulations under Division 2 of Part 2 to be a prohibited size fish.

public authority means a person or body established or constituted by an Act for a public purpose, and includes a Government Department, a local government authority or a state-owned corporation.

public water land means land submerged by water (whether permanently or intermittently), being:

(a)  Crown land, or

(b)  land vested in a public authority, or

(c)  land vested in trustees for public recreation or for any other public purpose, or

(d)  land acquired by the Minister under Division 1 of Part 8,

      but does not include land which is the subject of an aquaculture lease or land of which a person has exclusive possession under a lease under any other Act.

records includes documents containing financial or any other kind of information.

Note. 

The Interpretation Act 1987 defines document to include not only paper but also computer or other electronic records.

recreational fisher means a fisher who takes fish by any method, otherwise than for sale.

registered fish receiver means a fish receiver registered under Division 4 of Part 4.

registered native title body corporate has the same meaning as it has in the Native Title Act 1993 of the Commonwealth.

registered native title claimant has the same meaning as it has in the Native Title Act 1993 of the Commonwealth.

restricted fishery means an exploratory, developmental or other restricted fishery declared under Division 3 of Part 4.

sell includes:

(a)  sell by wholesale, retail, auction or tender, or

(b)  barter or exchange, or

(c)  supply for profit, or

(d)  offer for sale, receive for sale or expose for sale, or

(e)  consign or deliver for sale, or

(f)  have in possession for sale, or

(g)  cause or allow any of the above to be done.

Share Appeal Panel means the Share Management Fisheries Appeal Panel constituted under Division 9 of Part 3.

share management fishery means a fishery specified in Schedule 1.

share management plan means a management plan for a share management fishery.

Share Register means the Share Management Fisheries Register kept in accordance with Division 10 of Part 3.

species of fish includes fish that are of variety, domesticated form or hybrid of the species.

supporting plan, in relation to a share management fishery, means a supporting plan made under Division 5 of Part 3.

TAC Committee means the Total Allowable Catch Setting and Review Committee established under Division 4 of Part 2.

take fish includes:

(a)  catch or kill fish, or

(b)  gather or collect fish, or

(c)  remove fish from any rock or other matter,

      or attempt to do so.

vehicle includes aircraft, caravan or trailer.

(2)  In this Act, a reference to taking fish for sale includes a reference to taking fish for use as bait in taking fish for sale.

(3)  For the purposes of any provision of this Act that provides for an increased maximum penalty for a second or subsequent offence, an offence is to be regarded as a second or subsequent offence in relation to another offence only if:

(a)  a conviction was recorded in relation to the other offence, and

(b)  the other offence occurred on a separate occasion.

Note. Penalties for offences are expressed in penalty units. Under the Crimes (Sentencing Procedure) Act 1999, the amount of a penalty unit is currently $110.

5   Definition of “fish”

(1)  In this Act, fish means marine, estuarine or freshwater fish or other aquatic animal life at any stage of their life history (whether alive or dead).

(2)  In this Act, fish includes:

(a)  oysters and other aquatic molluscs, and

(b)  crustaceans, and

(c)  echinoderms, and

(d)  beachworms and other aquatic polychaetes.

(3)  In this Act, fish also includes any part of a fish.

(4)  However, in this Act, fish does not include whales, mammals, reptiles, birds, amphibians or other things excluded from the definition by the regulations.

6   Definition of “fishery”

(1)  In this Act, fishery means a class of fishing activity.

(2)  For the purposes of this Act, a fishery may be identified by reference to any one or more of the following:

(a)  a species or other class of fish,

(b)  an area of waters or seabed,

(c)  a method of fishing,

(d)  a class of boat,

(e)  a class of persons,

(f)  a purpose of activities.

7   Waters to which Act applies

(1)  This Act applies:

(a)  in relation to all waters that are within the limits of the State, and

(b)  except for purposes relating to a fishery, or a part of a fishery, that is to be managed in accordance with the law of the Commonwealth pursuant to an arrangement under Division 3 of Part 5 and except for purposes prescribed by paragraph (d)—in relation to any waters of the sea not within the limits of the State that are on the landward side of waters adjacent to the State that are within the Australian fishing zone, and

(c)  for purposes relating to a fishery, or a part of a fishery, that is managed in accordance with the law of the State pursuant to an arrangement under Division 3 of Part 5—in relation to any waters to which the legislative powers of the State extend with respect to that fishery, whether pursuant to section 5 of the Coastal Waters (State Powers) Act 1980 of the Commonwealth or otherwise, and

(d)  for purposes relating to recreational fishing activities engaged in otherwise than by use of a foreign boat (other than recreational activities prohibited or regulated under a plan of management determined under section 17 of the Commonwealth Act)—in relation to any waters to which the legislative powers of the State extend with respect to such activities.

Note. In many cases the legislative powers of the State will extend beyond three nautical miles, particularly in relation to recreational fishing.

(2)  This section is subject to any express limitations in this Act.

(3)  This Act is intended to have extraterritorial application in so far as the legislative powers of the State permit.

Note. Section 7 and Part 5 implement Commonwealth/State arrangements with respect to fisheries and are in the same form as the fisheries legislation of other States and Territories.

Part 1A Fishery management strategies

7A   Definitions

In this Part:

designated fishing activity means a fishing activity described in Schedule 1A.

EPA Act means the Environmental Planning and Assessment Act 1979.

fishing activity includes any activity that may be the subject of environmental assessment under Division 5 of Part 5 of the EPA Act.

fishing regulatory controls has the same meaning it has in Division 5 of Part 5 of the EPA Act.

7B   Declaration of designated fishing activities

(1)  Schedule 1A describes designated fishing activities for the purposes of this Part.

(2)  The Governor may, by proclamation published on the NSW legislation website on the recommendation of the Minister, amend Schedule 1A by inserting, omitting or amending the description of a fishing activity.

(3)  The regulations may make provisions of a savings or transitional nature consequent on the amendment of Schedule 1A.

7C   Fishery management strategy for designated activities

(1)  The Minister is to arrange for the preparation of a draft fishery management strategy for each designated fishing activity.

(2)  The Minister may, from time to time, revise the existing strategy for an activity or arrange for the preparation of a new draft strategy for the activity (whether or not a review of the existing strategy is required because performance indicators are not being met).

(2A)  An existing strategy may be revised by including provisions in a subsequent strategy (whether or not relating to the same activity) that are expressed to amend, replace or otherwise revise the provisions of the existing strategy.

(2B)  The Minister may set priorities, or revise priorities, for the implementation of any action contemplated by an existing strategy, in particular, for the purpose of co-ordinating the implementation of actions that are common to 2 or more strategies.

(3)  (Repealed)

(4)  A draft fishery management strategy becomes the existing fishery management strategy when it is approved by the Minister. However, the first fishery management strategy to be approved in respect of a designated fishing activity must be approved in accordance with section 7F.

7D   Purpose of fishery management strategy

(1)  A fishery management strategy is the strategy for achieving the objectives of this Act with respect to the designated fishing activity for which it is prepared. The draft strategy is the basis for environmental assessment under Division 5 of Part 5 of the EPA Act of that activity.

(2)  A draft strategy is to be prepared (in accordance with guidelines agreed between the Minister administering this Act and the Minister administering the EPA Act) so as to enable:

(a)  an environmental assessment consistent with the principles on which assessments of activities are undertaken under Part 5 of the EPA Act, and

(b)  the cumulative environmental impact of fisheries approvals under this Act to be assessed.

Note. Division 5 of Part 5 of the EPA Act makes special provision for the environmental assessment of designated fishing activities. Section 115I of that Act requires the preparation of a draft fishery management strategy for any fishing activity that is subject to environmental assessment under that Division. The draft strategy is subject to public consultation in conjunction with the environmental impact statement for the assessment.

7E   Content of fishery management strategy

A fishery management strategy is to:

(a)  describe the designated fishing activity for which it is prepared, and

(b)  incorporate any management plan or draft management plan for the fishery concerned, and

(c)  outline the fishing regulatory controls or proposed fishing regulatory controls applicable to the designated fishing activity, and

(d)  outline the likely interaction of the designated fishing activity with other fishing activities, and

(e)  include performance indicators to monitor whether the objectives of the strategy (and the management plan) and ecologically sustainable development are being attained, and

(f)  describe how the designated fishing activity is to be monitored, and

(g)  specify at what point a review of the strategy is required when a performance indicator is not being satisfied.

Note. See section 57 for content of a management plan for a share management fishery.

7F   Revision of draft strategy and publication of approved strategy following environmental assessment

(1)  Following a determination under Division 5 of Part 5 of the EPA Act, the Minister is to revise the draft fishery management strategy for the designated fishing activity concerned and make any amendment that is necessary to reflect the result of the determination.

(2)  (Repealed)

(3)  The Minister is to publish the approved strategy (as so revised) in connection with the publication of the determination under Division 5 of Part 5 of the EPA Act.

7G   Management plan not to be made until completion of environmental assessment

(1)  Until a determination is made under Division 5 of Part 5 of the EPA Act with respect to a designated fishing activity, the first management plan for the fishery concerned cannot be made.

(2)  If the management plan for a share management fishery has not been made within the time required by section 42 (3), the Minister is not required to recommend that the description of the fishery be omitted from Schedule 1 if the Management Advisory Committee for the fishery approves of the retention of the fishery as a share management fishery.

Part 2 General fisheries management

Division 1 Fishing closures

8   Closure of waters to fishing

(1)  The Minister may from time to time, by notification, prohibit, absolutely or conditionally, the taking of fish, or of a specified class of fish, from any waters or from specified waters.

(2)  Any such prohibition is called a fishing closure.

9   Publication of notification of closures

(1)  The notification of a fishing closure is to be published in the Gazette.

(2)  However, if the Minister considers that the fishing closure is required urgently, the Minister may publish the notification:

(a)  in a newspaper circulating, or by radio or television broadcast, in the area adjacent to the waters to which the fishing closure applies, or

(b)  by causing a copy of the notification to be exhibited in a prominent place adjacent to the waters to which the fishing closure applies.

(3)  In any such urgent case, the Minister is to publish the notification in the Gazette as soon as practicable.

10   Duration of closures

(1)  A fishing closure takes effect on the publication of the notification or on a later date specified in the notification.

(2)  A fishing closure remains in force, subject to this Act, for the period (not exceeding 5 years) specified in the notification.

11   Amendment or revocation of closures

The Minister may from time to time amend or revoke a fishing closure by a further notification published in accordance with this Division.

12   General provisions relating to closures

Sections 42–45 of the Interpretation Act 1987 apply to notifications of fishing closures in the same way as they apply to statutory rules within the meaning of that Act.

Note. The above provisions of the Interpretation Act 1987 relate to standard provisions authorising the adoption of other publications by reference, the making of differential closures, the amendment or repeal of closures and judicial notice and presumptions as to validity for closures.

13   Regulations relating to closures

The regulations may make provision for or with respect to giving effect to fishing closures or to any other matter relating to fishing closures.

14   Offences relating to closures

(1)  A person who takes fish in contravention of a fishing closure is guilty of an offence.

Maximum penalty:

(a)  in the case of an individual:

(i)  200 penalty units or imprisonment for 6 months (or both) for a first offence, or

(ii)  400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or

(b)  in the case of a corporation:

(i)  1,000 penalty units for a first offence, or

(ii)  2,000 penalty units for a second or subsequent offence.

(2)  A person who is in possession of fish taken in contravention of a fishing closure is guilty of an offence.

Maximum penalty:

(a)  in the case of an individual:

(i)  200 penalty units or imprisonment for 6 months (or both) for a first offence, or

(ii)  400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or

(b)  in the case of a corporation:

(i)  1,000 penalty units for a first offence, or

(ii)  2,000 penalty units for a second or subsequent offence.

(3)  It is a defence to a prosecution for an offence under subsection (2) if the person charged satisfies the court that the person did not know and could not reasonably have known that the fish had been taken in contravention of a provision of or made under this Act.

Division 2 Offences relating to size, quantity and particular species of fish

14A   Definitions

(1)  In this Division:

commercial quantity of a priority species of fish means:

(a)  in relation to an offence against section 16—the quantity specified as a commercial quantity of fish for the species concerned in Column 3 of Part 1 of Schedule 1B, or

(b)  in relation to an offence against section 17 or 18—the quantity specified as a commercial quantity of fish for the species concerned in Column 3 of Part 2 of Schedule 1B.

priority species of fish means:

(a)  in relation to an offence against section 16—a species of fish specified in Column 1 of Part 1 of Schedule 1B, or

(b)  in relation to an offence against section 17 or 18—a species of fish specified in Column 1 of Part 2 of Schedule 1B.

(2)  If the commercial quantity of a priority species of fish is specified by reference to the total weight of the fish concerned, the total weight of the fish is to be determined in accordance with the regulations.

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

(4)  The Governor may, by regulation made on the recommendation of the Minister, amend Schedule 1B to insert, alter or omit any matter in that Schedule.

15   Declaration of prohibited size fish

(1)  The regulations may declare that fish of a specified species that do not comply with a minimum size, maximum size or range of sizes specified for fish of that species are prohibited size fish.

(1A)  The regulations may declare different prohibited size fish for different classes of persons or for different circumstances.

(2)  The regulations may prescribe the method of determining the size of any class of fish.

(3)  The regulations may specify the size of fish by reference to measurement or weight (or both), or by reference to the number of individuals in any specified weight.

16   Prohibited size fish

(1)  A person who has prohibited size fish in the person’s possession is guilty of an offence.

Maximum penalty:

(a)  in the case of an individual:

(i)  200 penalty units or imprisonment for 6 months (or both) for a first offence, or

(ii)  400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or

(b)  in the case of a corporation:

(i)  1,000 penalty units for a first offence, or

(ii)  2,000 penalty units for a second or subsequent offence.

(2)  A person who has prohibited size fish in the person’s possession, in circumstances of aggravation, is guilty of an offence.

Maximum penalty:

(a)  in the case of an individual:

(i)  400 penalty units or imprisonment for 12 months (or both) for a first offence, or

(ii)  800 penalty units or imprisonment for 18 months (or both) for a second or subsequent offence, or

(b)  in the case of a corporation:

(i)  2,000 penalty units for a first offence, or

(ii)  4,000 penalty units for a second or subsequent offence.

(3)  A person who sells prohibited size fish is guilty of an offence.

Maximum penalty:

(a)  in the case of an individual:

(i)  200 penalty units or imprisonment for 6 months (or both) for a first offence, or

(ii)  400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or

(b)  in the case of a corporation:

(i)  1,000 penalty units for a first offence, or

(ii)  2,000 penalty units for a second or subsequent offence.

(4)  A person who sells prohibited size fish, in circumstances of aggravation, is guilty of an offence.

Maximum penalty:

(a)  in the case of an individual:

(i)  400 penalty units or imprisonment for 12 months (or both) for a first offence, or

(ii)  800 penalty units or imprisonment for 18 months (or both) for a second or subsequent offence, or

(b)  in the case of a corporation:

(i)  2,000 penalty units for a first offence, or

(ii)  4,000 penalty units for a second or subsequent offence.

(5)  For the purposes of subsections (2) and (4), a person has possession of prohibited size fish, or sells prohibited size fish, in circumstances of aggravation if:

(a)  the prohibited size fish in possession or sold by the person are a priority species of fish, and

(b)  the quantity of prohibited size fish in possession or sold by the person is a commercial quantity of that species of fish.

17   Bag limits—taking of fish

(1)  The regulations may specify the maximum quantity of fish of a specified species, or of a specified class, that a person may take on any one day (the daily limit).

(2)  A person who takes on any one day more fish than the daily limit of those fish is guilty of an offence.

Maximum penalty:

(a)  in the case of an individual:

(i)  200 penalty units or imprisonment for 6 months (or both) for a first offence, or

(ii)  400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or

(b)  in the case of a corporation:

(i)  1,000 penalty units for a first offence, or

(ii)  2,000 penalty units for a second or subsequent offence.

(2A)  A person who takes on any one day more fish than the daily limit of those fish, in circumstances of aggravation, is guilty of an offence.

Maximum penalty:

(a)  in the case of an individual:

(i)  400 penalty units or imprisonment for 12 months (or both) for a first offence, or

(ii)  800 penalty units or imprisonment for 18 months (or both) for a second or subsequent offence, or

(b)  in the case of a corporation:

(i)  2,000 penalty units for a first offence, or

(ii)  4,000 penalty units for a second or subsequent offence.

(2B)  For the purposes of subsection (2A), a person takes fish in circumstances of aggravation if:

(a)  the fish taken are a priority species of fish, and

(b)  the quantity of fish taken is a commercial quantity of that species of fish.

(3)  The regulations may specify different daily limits for commercial fishers or other classes of fishers or in any other circumstances specified in the regulations. The regulations may also include restrictions as to size or otherwise in respect of any daily limit of fish.

(3A)  The regulations may specify a daily limit of zero for fish of a specified species or of a specified class. In that case, a reference in this section to taking more fish than the daily limit of those fish is to be read as a reference to taking any of those fish.

(4)  This section does not authorise the taking of fish in contravention of a fishing closure or other provision of or made under this Act.

(5)  The regulations may provide that the maximum quantity of any fish that may be taken applies to a period other than one day. In that case, a reference in this section to any one day is to be read as a reference to that other period.

(6)  The Minister is required to consult the Advisory Council on Recreational Fishing about any proposal to specify or change daily limits under this section or possession limits under section 18.

18   Bag limits—possession of fish

(1)  The regulations may specify the maximum quantity of fish of a specified species, or of a specified class, that a person may have in possession in any specified circumstances (the possession limit).

(2)  A person who has in the person’s possession more than the possession limit of those fish is guilty of an offence. This subsection applies irrespective of the period over which the fish were taken.

Maximum penalty:

(a)  in the case of an individual:

(i)  200 penalty units or imprisonment for 6 months (or both) for a first offence, or

(ii)  400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or

(b)  in the case of a corporation:

(i)  1,000 penalty units for a first offence, or

(ii)  2,000 penalty units for a second or subsequent offence.

(2A)  A person who has in the person’s possession, in circumstances of aggravation, more than the possession limit of any fish is guilty of an offence. This subsection applies irrespective of the period over which the fish were taken.

Maximum penalty:

(a)  in the case of an individual:

(i)  400 penalty units or imprisonment for 12 months (or both) for a first offence, or

(ii)  800 penalty units or imprisonment for 18 months (or both) for a second or subsequent offence, or

(b)  in the case of a corporation:

(i)  2,000 penalty units for a first offence, or

(ii)  4,000 penalty units for a second or subsequent offence.

(2B)  For the purposes of subsection (2A), a person has possession of fish in circumstances of aggravation if:

(a)  the fish in the person’s possession are a priority species of fish, and

(b)  the quantity of fish in the person’s possession is a commercial quantity of that species of fish.

(3)  The regulations may specify different possession limits for commercial fishers or other classes of fishers or in any other circumstances specified in the regulations. The regulations may also include restrictions as to size or otherwise in respect of any possession limit of fish.

(3A)  The regulations may specify a possession limit of zero for fish of a specified species or of a specified class. In that case, a reference in this section to being in possession of more than the possession limit of those fish is to be read as a reference to being in possession of any of those fish.

(4)  The possession limit of any fish need not be the same as the daily limit of those fish.

(5)  This section does not authorise the possession of fish in contravention of any other provision of or made under this Act.

18A   Additional monetary penalty for bag limit offences involving priority species

(1)  A court that finds a person guilty of an offence against section 17 or 18 in respect of any species of fish that is a priority species of fish in relation to the offence concerned may impose an additional penalty for the offence of up to 10 times the market value of the fish the subject of the offence.

(2)  The market value of the fish the subject of the offence is the amount determined by the court as the price at which the fish might reasonably have been expected to be sold by the person who committed the offence at the time the offence was committed.

(3)  In determining the market value of the fish the subject of the offence, the court may have regard to the following:

(a)  the price for which fish of that species were being sold at the time of the offence (whether or not to purchasers within this State and whether or not legally),

(b)  the price for which the fish were sold, or for which fish of that species have previously been sold, by the person who committed the offence,

(c)  any other matters it considers appropriate.

(4)  The court may determine the market value of the fish the subject of the offence by reference to the weight of the fish the subject of the offence, the number of fish the subject of the offence or by any other method it considers appropriate.

(5)  The penalty provided for by this section is in addition to the maximum penalty provided for by this Act in respect of the particular offence concerned.

19   Protected fish

(1)  The regulations may declare that fish of a specified species are protected fish.

(2)  A person who takes protected fish is guilty of an offence.

(3)  A person who has protected fish in the person’s possession is guilty of an offence.

(4)  The regulations may declare the possession of any protected fish to be prohibited absolutely.

(5)  If the possession of protected fish is prohibited absolutely, subsection (3) applies whether or not the fish are taken from waters to which this Act applies.

Maximum penalty:

(a)  in the case of an individual:

(i)  200 penalty units or imprisonment for 6 months (or both) for a first offence, or

(ii)  400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or

(b)  in the case of a corporation:

(i)  1,000 penalty units for a first offence, or

(ii)  2,000 penalty units for a second or subsequent offence.

20   Fish and waters protected from commercial fishing

(1)  The regulations may declare that fish of a specified species are protected, absolutely or conditionally, from all or a class of commercial fishing.

(2)  The regulations may declare specified waters to be waters in which all or a class of commercial fishing is prohibited absolutely or conditionally.

(3)  A person who:

(a)  takes fish of a species declared under subsection (1) in breach of the declaration, or

(b)  takes fish from waters declared under subsection (2) in breach of the declaration, or

(c)  sells fish taken in breach of a declaration under subsection (1) or (2),

      is guilty of an offence.

Maximum penalty:

(a)  in the case of an individual:

(i)  1,000 penalty units or imprisonment for 6 months (or both) for a first offence, or

(ii)  2,000 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or

(b)  in the case of a corporation:

(i)  2,000 penalty units for a first offence, or

(ii)  4,000 penalty units for a second or subsequent offence.

(4)  The regulations may declare the sale of any species of fish that is protected from commercial fishing under subsection (1) to be prohibited absolutely.

(5)  A person who sells fish of a species declared under subsection (4) is guilty of an offence.

Maximum penalty:

(a)  in the case of an individual:

(i)  1,000 penalty units or imprisonment for 6 months (or both) for a first offence, or

(ii)  2,000 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or

(b)  in the case of a corporation:

(i)  2,000 penalty units for a first offence, or

(ii)  4,000 penalty units for a second or subsequent offence.

(6)  Subsection (5) applies whether or not the fish were taken from waters to which this Act applies.

(7)  A person cannot be found guilty of both an offence against subsection (3) (c) and an offence against subsection (5) in respect of the same sale.

(8)  Nothing in this section limits the power of the Minister to make a fishing closure in relation to commercial fishing.

20A   Fish and waters protected from recreational fishing

(1)  The regulations may declare that fish of a specified species are protected, absolutely or conditionally, from all or a class of recreational fishing.

(2)  The regulations may declare specified waters to be waters in which all or a class of recreational fishing is prohibited absolutely or conditionally.

(3)  A person who:

(a)  takes fish of a species declared under subsection (1) in breach of the declaration, or

(b)  takes fish from waters declared under subsection (2) in breach of the declaration,

      is guilty of an offence.

Maximum penalty:

(a)  in the case of an individual:

(i)  200 penalty units or imprisonment for 6 months (or both) for a first offence, or

(ii)  400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or

(b)  in the case of a corporation:

(i)  1,000 penalty units for a first offence, or

(ii)  2,000 penalty units for a second or subsequent offence.

(4)  Nothing in this section limits the power of the Minister to make a fishing closure in relation to recreational fishing.

21   Defences

(1)  It is a defence to a prosecution for an offence under this Division if the person charged satisfies the court that:

(a)  the fish were lawfully taken from or lawfully cultivated in waters to which this Act does not apply, or

(b)  the fish were cultivated under the authority conferred by an aquaculture permit, or

(c)  the fish were taken or in possession under the authority conferred by any other permit under this Act, or

(d)  the person has any other defence that is prescribed by the regulations.

(2)  Subsection (1) (a) does not apply to the following offences:

(a)  an offence under section 19 (3), if the possession of the protected fish is prohibited absolutely by the regulations,

(b)  an offence under section 20 (5).

Division 2A Trafficking in fish

21A   Definitions

(1)  In this Division:

indictable quantity of a species of fish means the quantity specified as an indictable quantity of fish for the species concerned in Column 3 of Schedule 1C.

indictable species of fish means a species of fish specified in Column 1 of Schedule 1C.

(2)  If an indictable quantity of a species of fish is specified by reference to the total weight of the fish concerned, the total weight of the fish is to be determined in accordance with the regulations.

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

(4)  The Governor may, by regulation made on the recommendation of the Minister, amend Schedule 1C to insert, alter or omit any matter in that Schedule.

21B   Trafficking in fish

(1)  A person must not traffic in an indictable species of fish.

Maximum penalty: Imprisonment for 10 years.

(2)  For the purposes of this Division, a person traffics in an indictable species of fish if:

(a)  the person dishonestly takes, sells, receives or possesses fish of an indictable species, and

(b)  the taking, selling, receiving or possession of the fish by the person contravenes another provision of this Act or of the regulations, and

(c)  the quantity of fish of an indictable species taken, sold, received or possessed is not less than an indictable quantity of the species concerned.

(3)  Any defence that is applicable to proceedings for an offence in respect of a contravention of another provision of this Act or of the regulations also applies to proceedings for an offence against this section in respect of the same contravention.

(4)  A person may be found guilty of an offence against this section in relation to a contravention of another provision of this Act whether or not the person has been found guilty of an offence against another provision of this Act in relation to that contravention.

21C   Additional monetary penalty may be imposed

(1)  A court that finds a person guilty of an offence against section 21B may impose an additional penalty for the offence of up to 10 times the market value of the fish the subject of the offence.

(2)  The market value of the fish the subject of the offence is the amount determined by the court as the price at which the fish might reasonably have been expected to be sold by the person who committed the offence at the time the offence was committed.

(3)  In determining the market value of the fish the subject of the offence, the court may have regard to the following:

(a)  the price for which fish of that species were being sold at the time of the offence (whether or not to purchasers within this State and whether or not legally),

(b)  the price for which the fish were sold, or for which fish of that species have previously been sold, by the person who committed the offence,

(c)  any other matters it considers appropriate.

(4)  The court may determine the market value of the fish the subject of the offence by reference to the weight of the fish the subject of the offence, the number of fish the subject of the offence or by any other method it considers appropriate.

(5)  The penalty provided for by this section is in addition to the maximum penalty provided for by this Act in respect of the offence concerned.

Division 3 Fishing gear

22   Registration of fishing gear

(1)  The regulations may make provision for or with respect to the registration of specified classes of fishing gear.

(2)  If a class of fishing gear is registrable, a person who uses unregistered gear of that class to take fish is guilty of an offence.

Maximum penalty: In the case of a corporation, 50 penalty units or, in any other case, 25 penalty units.

23   Regulations relating to fishing gear

The regulations may make provision for or with respect to fishing gear (including the classes of nets or traps that may lawfully be used for taking fish).

24   Lawful use of nets or traps

(1)  A person must not use a net or trap for taking any fish unless its use by the person for taking those fish is declared by the regulations to be a lawful use of the net or trap.

Maximum penalty:

(a)  in the case of an individual:

(i)  200 penalty units or imprisonment for 6 months (or both) for a first offence, or

(ii)  400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or

(b)  in the case of a corporation:

(i)  1,000 penalty units for a first offence, or

(ii)  2,000 penalty units for a second or subsequent offence.

(2)  This section does not affect any other prohibition of the use of a net or trap under a fishing closure or other provision of or made under this or any other Act.

25   Possession of illegal fishing gear

(1)  A person who is in possession of any fishing gear in, on or adjacent to any waters is guilty of an offence if:

(a)  the use by that person of that fishing gear for taking fish from those waters is, at that time, prohibited by or under this Act, or

(b)  the taking of fish from those waters is, at that time, prohibited by or under this Act.

Maximum penalty:

(a)  in the case of an individual:

(i)  200 penalty units or imprisonment for 6 months (or both) for a first offence, or

(ii)  400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or

(b)  in the case of a corporation:

(i)  1,000 penalty units for a first offence, or

(ii)  2,000 penalty units for a second or subsequent offence.

(2)  A person who is on board a boat is taken to be in possession of any fishing gear found in the boat.

(3)  It is a defence to a prosecution for an offence under this section if the person charged satisfies the court that the fishing gear was being transported, in accordance with the written authority of a fisheries officer, to waters where the person could lawfully take fish with that gear.

(4)  It is a defence to a prosecution for an offence under this section if the person charged satisfies the court that the fishing gear was in his or her possession for a lawful purpose (including any purpose prescribed as lawful by the regulations).

Division 4 Total allowable catches

26   Establishment of TAC Committee

A Total Allowable Catch Setting and Review Committee (the TAC Committee) is established.

27   Composition and procedure of TAC Committee

(1)  The TAC Committee is to consist of at least 4 members, as follows:

(a)  a person appointed by the Minister as the Chairperson of the TAC Committee, being a person who is neither engaged in the administration of this Act nor engaged in commercial fishing,

(b)  a person appointed by the Minister who is a natural resource economist not employed by the Government,

(c)  a person appointed by the Minister who is a fishery scientist not employed by the Government,

(d)  persons appointed by the Minister who have appropriate fisheries management qualifications.

(2)  Schedule 2 has effect with respect to the members and procedure of the TAC Committee.

28   Function of TAC Committee

(1)  The TAC Committee may determine, in accordance with this Division, the total allowable catch of fish in any fishery for the commercial fishing sector.

(2)  The TAC Committee is required to determine a specified total allowable catch for a share management fishery if the management plan for the fishery so requires.

(3)  The TAC Committee is required to determine any other total allowable catch if (and only if) required to do so by the Minister.

(4)  The TAC Committee may also determine, in accordance with this Division, any other matter relating to fishing effort in a share management fishery if (and only if) required to do so by the Minister. This Division applies to the determination of any such matter in the same way as it applies to the determination of a total allowable catch.

29   TAC Committee not subject to Ministerial control

(1)  The TAC Committee is not subject to the control or direction of the Minister as to any determination to be made by it.

(2)  However, the Minister may direct the TAC Committee on the procedure to be followed and, subject to this Division, the matters to be taken into account in making a determination.

(3)  The Minister may require the TAC Committee to reconsider a determination.

30   General considerations for TAC Committee

(1)  In determining total allowable catches under this Division, the TAC Committee is to give effect to the objects of this Act and is to have regard to all relevant scientific, industry, community, social and economic factors.

(2)  The TAC Committee is also to have regard to:

(a)  the need to ensure that the exploitation of fisheries resources is conducted in a manner that will conserve fish stocks in the long term, and

(b)  the impact of fishing activities on all species of fish and the aquatic environment, and

(c)  the precautionary principle, namely, that if there are threats of serious or irreversible damage to fish stocks, lack of full scientific certainty should not be used as a reason for postponing measures to prevent that damage.

31   Public consultation by TAC Committee

(1)  Before the TAC Committee determines a total allowable catch under this Division (or reviews any such determination), the TAC Committee is required to call for public submissions on the appropriate total allowable catch.

(2)  When the TAC Committee determines a total allowable catch under this Division it is to have regard to any public submissions it receives within the time fixed by it for the making of those submissions.

32   Review of determinations by TAC Committee

(1)  The TAC Committee is to keep its determinations of total allowable catches under review.

(2)  Following a review, the TAC Committee may decide not to alter its existing determination, to determine a different total allowable catch or to revoke its determination of a total allowable catch.

(3)  However, the TAC Committee may not revoke a determination that it is required to make by a management plan for a share management fishery or by the Minister, unless it is replaced by a new determination.

(4)  Despite section 31, a review of a determination of total allowable catch made by the TAC Committee (an initial determination) may be carried out without calling for public submissions on the appropriate total allowable catch if:

(a)  the review is conducted, and any new or different determination of total allowable catch made as a result of the review is made, within 6 months after the initial determination was made, and

(b)  before making the initial determination, the TAC Committee called for public submissions in relation to the appropriate total allowable catch.

(5)  Subsection (4) does not apply if the Minister directs the TAC Committee to call for public submissions in relation to a review.

(6)  If the TAC Committee conducts a review of an initial determination without calling for public submissions, the TAC Committee must, in making any decision in relation to the review, have regard to any public submissions that it was required to have regard to when it made the initial determination.

33   Publication and duration of determinations

(1)  A determination of the TAC Committee of a total allowable catch is to be published in the Gazette by the Minister.

(2)  The determination takes effect on the date (on or after that publication) that is specified in the determination.

(3)  The determination has effect for the period specified in the determination or, if no such period is specified, until it is revoked by another determination.

(4)  However, if the determination relates to a total allowable catch required under a management plan for a share management fishery, the determination does not cease to have effect until revoked by a new determination of that total allowable catch.

34   Implementation of determinations

(1)  The Minister is required to review, in the light of any determination of the TAC Committee, the regulations and other instruments under this Act regulating the taking of fish by commercial fishers and other fishers.

(2)  If the determination relates to a total allowable catch required under the management plan for a share management fishery, the determination is to be implemented in accordance with this Act and the management plan.

Division 4A Recreational fishing fee

34A   Definitions

In this Division:

fishing fee means a recreational fishing fee payable under this Division.

fishing fee exemption certificate means a certificate issued under section 34I and in force.

official receipt means a receipt issued under this Division for payment of a recreational fishing fee, being:

(a)  if the fishing fee was paid in person—the hard copy receipt issued as evidence of payment (or a copy of that receipt), or

(b)  if the fishing fee was paid over the telephone or by electronic means—the receipt number issued as evidence of payment, or

(c)  any other evidence of payment of a fishing fee prescribed by the regulations.

34AA   Purpose of fishing fees

The purpose of fishing fees is to provide revenue to assist activities supported through the recreational fishing trust funds established under Division 3 of Part 8, including the following:

(a)  enhancing, maintaining or protecting recreational fishing,

(b)  carrying out research into fish and their ecosystems,

(c)  managing recreational fishing,

(d)  ensuring compliance with recreational fishing regulatory controls.

34B   Recreational fishing fee

A recreational fishing fee is payable by recreational fishers as required by this Division.

34C   Recreational fishers required to pay fishing fee

(1)  A fishing fee is payable by all recreational fishers, unless exempted by or under this section.

(2)  A fisher is exempt from paying a fishing fee:

(a)  if the fisher is under 18 years of age, or

(b)  if the fisher is of or over 18 years of age and is only assisting a fisher under 18 years of age to take fish by means of a single rod or line, or

(c)  if the fisher holds a licence, permit or other authority under this Act or the regulations and is taking fish in accordance with that licence, permit or other authority, or

(d)  if the fisher is engaging in recreational fishing activities that are exempt from payment of a fishing fee by virtue of a fishing fee exemption certificate that is in force, or

(e)  if the fisher is taking fish from water subject to an aquaculture permit and is taking fish to which the permit relates, or

(f)  if the fisher is an Aboriginal person, or

(g)  if the fisher is taking fish from an aquarium, or from a body of water of a class exempted by the regulations, or

(h)  if the fisher is a fisher of a class exempted by the regulations.

(3)  The regulations may require recreational fishers to produce evidence that they are exempt from paying a fishing fee.

34D   Periods for which fishing fee payable

(1)  A fishing fee is payable for any period during which a recreational fisher takes fish from any waters otherwise than for sale.

(2)  A fishing fee may be paid for any of the following periods:

(a)  a period of 3 days,

(b)  a period of 1 month,

(c)  a period of 12 months,

(d)  a period of 3 years.

(3)  The regulations may prescribe other periods for which a fishing fee may be paid (whether in addition to, or substitution for, the periods referred to in subsection (2)).

34E   Amount of fishing fee

(1)  The amount of the fishing fee is (subject to this section):

(a)  for a period of 3 days—$5, or

(a1)  for a period of 1 month—$10, or

(b)  for a period of 12 months—$25, or

(c)  for a period of 3 years—$70.

(2)  The regulations may prescribe a different amount for any such period and may prescribe the amount for any other period for which a fishing fee may be paid.

34F   Reductions in fishing fee payable

The regulations may provide for reductions in the amount of the fishing fee otherwise payable by persons of a specified class.

34G   Issue of receipt on payment of fishing fee

(1)  A person who pays a fishing fee is entitled to be issued with an official receipt for the payment.

(2)  A receipt is evidence of the payment of the fishing fee and not an authority to take fish, and accordingly cannot be refused or made subject to any conditions.

(3)  A receipt is to be in a form approved by the Minister.

(3A)  The Director-General is to make appropriate arrangements to ensure that a person who pays a fishing fee is issued with an official receipt for the payment.

(4)  The regulations may make provision for the issue of replacement receipts for receipts that are lost, destroyed or damaged.

(5)  A receipt is not transferable.

34H   Arrangements for collection of fishing fees and issue of receipts

(1)  The Director-General may enter into arrangements with any person for the collection of fishing fees and the issue of official receipts. A person who enters into such an arrangement is an authorised agent for the purposes of this Act.

(2)  The Director-General is to ensure that sufficient arrangements are made to enable the payment of fishing fees in convenient locations throughout the State.

(3)  An arrangement may make provision for the payment of a commission to the authorised agent, whether by way of the retention of a percentage of the amount of fishing fees paid or by way of a separate payment.

(4)  An arrangement may make provision for the authorised agent to make specified records, and follow specified procedures, with respect to the collection and remittance of fishing fees and the issue of official receipts.

34I   Fishing fee exemption certificates

(1)  The Minister may issue a fishing fee exemption certificate in respect of any recreational fishing activities.

(2)  A certificate exempts persons carrying out those recreational fishing activities from the obligation to pay a fishing fee under this Division.

(3)  A certificate may be issued:

(a)  to a person in respect of recreational fishing activities that are carried out under the supervision or guidance of the person (or an employee or agent of the person), or

(b)  to the owner of a boat (or another person authorised by the owner) in respect of recreational fishing activities that are carried out on the boat, or

(c)  to such other persons or class of persons, and in respect of such other activities, as the regulations may prescribe.

(4)  The fee (if any) payable for the certificate and other matters concerning the certificate are to be prescribed by the regulations. The fee for the certificate is taken to be a fishing fee paid under this Division for the purposes of Division 3 of Part 8.

34J   Offences

(1)  A recreational fisher who is required by this Division to pay a fishing fee is guilty of an offence if the fisher fails to pay the fishing fee.

Maximum penalty: 20 penalty units.

(2)  A recreational fisher who is required by this Division to pay a fishing fee is guilty of an offence if the fisher does not have an official receipt for the payment of the fishing fee in his or her immediate possession when taking fish from any waters.

Maximum penalty: 20 penalty units.

(3)  For the purposes of proceedings under this section, a person who is in possession of fishing gear on, in or adjacent to any waters is presumed conclusively to be taking fish from those waters (even though the person takes or proposes to take fish only from other waters outside the State). The regulations may provide exemptions from this subsection.

(4)  For the purposes of this section, a person has an official receipt in his or her immediate possession only if the person is able to immediately produce the official receipt if required.

Division 4B Acquisition of commercial fishing entitlements

34K   Purpose of Division

The purpose of this Division is to provide an equitable mechanism for the reallocation of fisheries resources and for the payment of compensation to commercial fishers for the acquisition of their fishing entitlements.

34L   Declaration by Minister of acquisition of entitlements

(1)  The Minister may, by order published in the Gazette:

(a)  declare that any fishery (or part of a fishery) specified in the order is a fishery to which this Division applies, and

(b)  specify the relevant commercial fishing entitlements that are to be acquired under this Division.

(2)  For the purposes of this Division:

(a)  any such declaration is an acquisition declaration, and

(b)  the fishery (or the part of a fishery) to which the declaration relates is the declared fishery, and

(c)  the specified commercial fishing entitlements are the acquired entitlements.

34M   Consultation on proposed acquisition declaration

The Minister is required to give the following persons and bodies an opportunity to make submissions on any proposed acquisition declaration and to take any submission that is duly made into account:

(a)  the persons whose commercial fishing entitlements are proposed to be acquired,

(b)  any advisory council on recreational fishing and any relevant advisory council on commercial fishing established under section 229,

(c)  the local community in the area affected by the proposed declaration.

Note. Section 284 sets out the public consultation procedure.

34N   Termination of commercial fishing entitlements following declaration of acquisition

(1)  As soon as practicable after an acquisition declaration, the Minister is to cancel the acquired entitlements.

(2)  For that purpose, the Minister may do any one or more of the following:

(a)  cancel any shares in a share management fishery,

(b)  cancel a commercial fishing licence,

(c)  take any other action available to the Minister.

34O   Entitlement to compensation for acquired entitlements

(1)  The persons who held acquired entitlements that are cancelled under this Division are entitled (subject to this Division) to compensation from the State for the market value of the entitlements they held:

(a)  as at 19 January 2000, subject to paragraph (b), or

(b)  as at a later date notified in the acquisition declaration.

(2)  If the amount of the compensation is not agreed between the Minister and the person entitled to compensation, the Minister is to determine the amount after a review of the matter by a panel constituted by the Minister in accordance with the regulations.

(3)  If the person entitled to compensation is not satisfied with the review of the matter by the panel, the Minister may (at the person’s request) refer the matter to the Valuer-General for advice as to the amount of compensation required to be paid under this section.

(4)  A person who is dissatisfied with the amount of compensation offered to the person under this Division or with any delay in the payment of compensation may appeal to the Land and Environment Court.

(5)  The regulations may make provision for or with respect to the payment of compensation in accordance with this Division.

Division 4C Fishing businesses

34P   Definitions

In this Division:

fishing authority means a licence, permit, share, endorsement or any other authority relating to fishing activities issued or given under this Act or any other law (whether or not of this State).

NSW fishing authority means a fishing authority issued or given under this Act.

transfer of a fishing business or a component of a fishing business means the transfer, transmission, conveyance or assignment of a fishing business or component of a fishing business, and includes any other dealing in a fishing business or component of a fishing business of a kind prescribed by the regulations.

34Q   Fishing business determinations

(1)  The Director-General may, from time to time:

(a)  determine that a business that the Director-General considers to be a separate and identifiable fishing business is a fishing business, and

(b)  determine the components of that fishing business.

(2)  Such of the following as the Director-General considers to be owned, used, held or acquired in connection with a fishing business may be determined to be a component of the fishing business:

(a)  one or more fishing boats,

(b)  fishing gear,

(c)  any fishing authority held by a person,

(d)  the catch history of any person (determined in accordance with this Act and the regulations).

(3)  For the purposes of this Act:

(a)  a fishing business is a business determined by the Director-General to be a fishing business under this section, and

(b)  the fishing business is comprised of those components that are determined by the Director-General to be components of the fishing business.

(4)  The Director-General may, from time to time, amend or revoke a determination under this section by making a further determination.

(5)  A determination by the Director-General under this section is called a fishing business determination.

(6)  A fishing business determination is to be made:

(a)  in accordance with such provisions (if any) relating to the making of fishing business determinations as may be contained in the regulations or a management plan for a fishery (or both), and

(b)  in a manner consistent with any guidelines relating to transfers of fishing businesses, approved by the Director-General before the commencement of this section, that had effect in relation to any transfer made before the fishing business transfer rules took effect.

(7)  The Director-General may make a fishing business determination at any time:

(a)  on his or her own initiative, or

(b)  on an application made, in a form and manner approved by the Director-General, by the person (or persons) who own the business in respect of which the determination is sought.

(8)  The Director-General is required to give the person (or persons) who own a business that is the subject of a fishing business determination notice in writing of the determination.

(9)  A reference in this Act to the owner of a fishing business is a reference to the person (or persons) who, from time to time, owns or own a business that is, or has been, determined to be a fishing business by the Director-General under this section.

34R   Allocation of fishing business number

(1)  The Director-General is to allocate a unique identification number to each fishing business.

(2)  The Director-General may endorse a NSW fishing authority that is a component of a fishing business with the number allocated to the fishing business.

34S   Register of fishing business determinations

(1)  The Director-General is required to keep a register of fishing business determinations.

(2)  For each fishing business determination there is to be recorded in the register:

(a)  the name of the person (or persons) who own the business the subject of the determination,

(b)  the number allocated by the Director-General to the fishing business,

(c)  particulars of the components of the fishing business,

(d)  such other particulars as are required by the regulations to be recorded in the register in relation to a fishing business.

(3)  The register may be kept wholly or partly by means of a computer.

(4)  The register is to be made available for public inspection at the head office of the Department during ordinary business hours.

(5)  If the register is kept wholly or partly by means of a computer, subsection (4) may be complied with by making the contents of the register available on the website of the Department.

(6)  The Director-General may correct any error in or omission from the register.

(7)  A certificate signed or purporting to be signed by the Director-General, or an officer of the Department authorised in writing by the Director-General to exercise the functions conferred by this subsection, that certifies that, on a specified date or during a specified period, the particulars contained in the register as to specified matters were as so specified, is admissible in any proceedings and is evidence of the matters so certified.

34T   Fishing business transfer rules

(1)  The regulations or the management plan for a fishery (or both) may make provision for or with respect to the transfer of a fishing business (or components of a fishing business) and provide for the recognition, or restriction, of fishing rights following any such transfer. Such provisions are referred to as fishing business transfer rules.

(2)  In particular, the fishing business transfer rules may provide that a person to whom a component of a fishing business is transferred does not, as a consequence of that transfer, acquire any right to be issued with or given a NSW fishing authority unless all components of the fishing business are either transferred to the person or surrendered to the Minister for cancellation.

Note. Some components of a fishing business, for example, endorsements in a restricted fishery, may not be transferable (see section 114). The fishing business transfer rules may require such endorsements to be surrendered to the Minister for cancellation if other components of the fishing business are transferred to another person.

(3)  The fishing business transfer rules may authorise the Minister to cancel a NSW fishing authority that is a component of a fishing business if any other component of the fishing business is transferred in contravention of the fishing business transfer rules.

(4)  No compensation is payable by or on behalf of the State for the cancellation of a NSW fishing authority in accordance with the fishing business transfer rules.

Division 5 General

35   Possessing fish illegally taken

(1)  A person who is in possession of fish which were illegally taken is guilty of an offence.

Maximum penalty:

(a)  in the case of an individual:

(i)  200 penalty units or imprisonment for 6 months (or both) for a first offence, or

(ii)  400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or

(b)  in the case of a corporation:

(i)  1,000 penalty units for a first offence, or

(ii)  2,000 penalty units for a second or subsequent offence.

(2)  It is a defence to a prosecution for an offence under this section if the person charged satisfies the court that the person could not reasonably have known that the fish had been illegally taken.

(3)  In this section:

illegally taken means taken in contravention of a provision of or made under:

(a)  this Act, or

(b)  a law of another State or Territory, or of the Commonwealth, relating to fisheries.

36   Defence for accidental etc taking of fish

(1)  It is a defence to a prosecution for an offence against this Act or the regulations relating to the taking of fish if the person charged satisfies the court that, on becoming aware of the taking of the fish, the person took immediate steps to return the fish to its natural environment with the least possible injury.

(2)  The defence provided under subsection (1) extends to fish taken and immediately released in the course of a sport fishing activity (being an activity conducted in accordance with any requirements of the regulations).

(3)  The defence provided under subsection (1) is not available in proceedings for an offence under Part 7A.

Note. See Division 4 of Part 7A for defences to offences under that Part.

37   Defence—special permits for research or other authorised purposes

(1)  The Minister may issue to any person a permit which authorises the person to take and possess fish or marine vegetation of any kind or of a specified kind for any or all of the following purposes:

(a)  research purposes,

(b)  aquaculture purposes,

(c)  aquarium collection purposes,

(c1)  Aboriginal cultural fishing purposes,

(d)  any purpose prescribed by the regulations,

(e)  any other purpose approved by the Minister that is consistent with the objects of this Act.

(2)  A permit may authorise the holder to take fish or marine vegetation by any method or by any specified method, from any waters or any specified waters or in any other specified way, despite any provision of or made under this Act to the contrary.

(2A)  A permit may authorise a specified person or a specified class of persons, in addition to the permit holder, to take and possess fish or marine vegetation as authorised by the permit.

(3)  It is a defence to a prosecution for an offence against this Act or the regulations if the person charged satisfies the court that the act or omission of the person constituting the offence was authorised by a permit under this section.

(3A)  An application for a permit under this section is to be in a form approved by the Minister.

(4)  A permit under this section:

(a)  is subject to such conditions as are prescribed by the regulations or specified in the permit, and

(b)  remains in force for the period of 1 year or such other period as is specified in the permit, and

(c)  may be cancelled or suspended by the Minister at any time by notice given to the permit holder.

(5)  The Minister may from time to time, by notice given to the permit holder, vary the conditions of a permit under this section.

(6)  The regulations may make provision for or with respect to permits under this section.

(7)  The power to issue permits under this section is limited by section 220ZW (Licence to harm threatened species etc).

(8)  The Minister is not to issue a permit to a person for Aboriginal cultural fishing purposes if to authorise the fishing activities and practices concerned would be inconsistent with native title rights and interests under an approved determination of native title (within the meaning of the Native Title Act 1993 of the Commonwealth) or with the terms of an indigenous land use agreement (within the meaning of that Act).

37A   Defence—permits authorising sale of fish for charitable purposes

(1)  The Minister may issue to a person or body a permit that authorises the sale of fish, by auction, for a charitable purpose.

(2)  Any such permit may also authorise a person, or any class of persons specified in the permit, to take and possess fish, in connection with the sale of the fish by auction, by any method or by any specified method, from any waters or any specified waters or in any other specified way, despite any provision of or made under this Act to the contrary.

(3)  A person who takes fish, or is in possession of fish, in connection with a sale authorised by a permit issued under this Part, and in accordance with the authority granted by the permit, is not considered to be taking that fish, or in possession of that fish, for sale.

(4)  It is a defence to a prosecution for an offence against this Act or the regulations if the person charged satisfies the court that the act or omission constituting the offence was authorised by a permit issued under this section.

(5)  A permit under this section:

(a)  is subject to such conditions as are prescribed by the regulations or specified in the permit, and

(b)  remains in force for the period specified in the permit, and

(c)  may be cancelled or suspended by the Minister at any time by notice given to the permit holder.

(6)  The Minister may from time to time, by notice given to the permit holder, vary the conditions of a permit under this section.

(7)  The regulations may make provision for or with respect to permits under this section. In particular, the regulations may prescribe the fee payable for the issue of a permit.

(8)  The power to issue permits under this section is limited by section 220ZW (Licence to harm threatened species, population or ecological community or damage habitat).

(9)  In this section:

charitable purpose includes any benevolent, philanthropic or patriotic purpose.

38   Right to fish in certain inland waters

(1)  A person may take fish from waters in a river or creek that are not subject to tidal influence despite the fact that the bed of those waters is not Crown land if, for the purpose of taking those fish, the person is in a boat on those waters or is on the bed of the river or creek.

(2)  The right conferred by this section is subject to the other provisions of this Act.

(3)  In this section, bed of a river or creek includes any part of the bed of the river or creek which is alternatively covered and left bare with an increase or decrease in the supply of water (other than during floods).

39   Obstruction of recognised fishing grounds

(1)  A commercial fisher may request a person to remove anything which has been placed or left by the person, without lawful excuse, on a recognised fishing ground and which is obstructing the lawful net fishing activities of the commercial fisher.

(2)  A person who fails to remove any such obstruction after being directed by a fisheries officer to do so is guilty of an offence.

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

(3)  A court that convicts a person of an offence against this section may order the person to remove the obstruction. If the obstruction is not removed in accordance with the order, the Minister may cause it to be removed and recover the cost of the removal from the person as a debt in a court of competent jurisdiction.

(4)  In this section, recognised fishing ground means any area of the sea or of other public water land used regularly or intermittently for net fishing by commercial fishers, being an area identified by or in accordance with the regulations as a recognised fishing ground.

40   Regulations relating to general management of fisheries

(1)  The regulations may make provision for or with respect to any matter relating to the management of fishery resources.

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

(a)  the development of plans for the management of fishery resources and the establishment of planning committees for that purpose,

(b)  preventing interference with the fishing activities of fishers,

(c)  preventing interference with set fishing gear,

(d)  determining the priority between fishers engaged in fishing activities in the same area,

(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,

(e)  prohibiting the use of explosives, electrical devices or other dangerous substances for the purpose of taking fish and regulating the use of explosives, electrical devices and other dangerous substances in any waters,

(f)  the identification of fishing boats,

(g)  the tagging or other identification of fish taken from any waters,

(h)  the identification of containers of fish consigned for sale,

(i)  the shucking, cutting or other processing of fish before they are landed or sold,

(j)  the taking and use of bait for fishing,

(k)  the measurement of fishing gear,

(l)  the period and manner of any consultation required to be undertaken under this Act so that the persons concerned are fully consulted,

(m)  the fees payable in respect of an application for, or the issue of, a permit under this Act.

Part 3 Commercial share management fisheries

Division 1 Overview

41   Staged implementation of share management fisheries

This Part provides for the implementation of share management fisheries in the following stages:

(a)  Stage 1 (Consultation)
the first stage when the Minister consults relevant industry bodies about which fisheries should become share management fisheries.

(b)  Stage 2 (Identification of fishery and shareholders)
the second stage when a fishery is identified as a share management fishery by the inclusion of a description of the fishery in Schedule 1. During the second stage, an interim Management Advisory Committee for the fishery is established, the criteria for the allocation of shares in the fishery are determined, eligible persons are invited to apply for shares and shares are issued provisionally.

(c)  Stage 3 (Access to fishery limited to shareholders)
the third stage when access to the fishery is limited to provisional shareholders (and also to any person claiming to be eligible to receive shares). During the third stage, appeals against the provisional issue of shares are determined and a draft management plan for the fishery is prepared.

(d)  Stage 4 (Full implementation)
the fourth and final stage when the management plan for the fishery commences and the fishing, share transfer and other rights of shareholders are fully identified and exercisable and subject to review.

41A   Categories of share management fishery

There are 2 categories of share management fishery, as follows:

(a)  category 1 share management fisheries,

(b)  category 2 share management fisheries.

Note. The principal differences between category 1 and category 2 share management fisheries are as follows:

(a)  Shares in a category 1 share management fishery are issued for a 10-year period and are automatically renewed. If the share management fishery is terminated, all the shares in the fishery are cancelled and compensation is payable to the shareholders. Shareholders in the fishery are liable to pay a community contribution for their right of access to the fishery.

(b)  Shares in a category 2 share management fishery are issued for a 15-year period and are renewable. If the share management fishery is terminated by the Minister, the shares expire at the end of the 15-year period for which they were issued or renewed. Compensation is payable for the termination of the fishery (by its omission from Schedule 1) before the expiry of the current term of the shares, but is not payable for a termination by the Minister after that expiry. Shareholders in the fishery are not liable for a community contribution, but must pay a rental charge for their right of access to the fishery.

Division 2 Declaration of share management fisheries

42   Declaration of share management fisheries

(1)  Schedule 1 specifies share management fisheries for the purposes of this Act.

(2)  The Governor may, by proclamation published on the NSW legislation website on the recommendation of the Minister, amend Schedule 1 by inserting or omitting the description of any fishery.

(3)  The Minister is required to recommend to the Governor that the description of a fishery be omitted from Schedule 1 if the management plan for the fishery has not commenced within 5 years after the description was inserted in Schedule 1.

Note. The first management plan for a fishery cannot be made until the completion of environmental assessment—see section 7G.

43   Consultation with industry

(1)  The Minister is required to consult relevant commercial fishing industry bodies about which fisheries should become share management fisheries.

(2)  The Minister is also required to consult relevant commercial fishing industry bodies before a fishery ceases to be a share management fishery.

44   Omission of share management fishery

(1)  This section has effect if the description of a share management fishery is omitted from Schedule 1, including an omission for the purpose of redefining an existing share management fishery.

(2)  When the description of the fishery is omitted, all shares in the fishery are cancelled.

(3)  If the description of the fishery is omitted after the commencement of the management plan for the fishery, the holders of the cancelled shares are entitled to compensation from the State for the market value before the cancellation of the shares they held.

(4)  The amount of compensation payable is to be determined by agreement between the Minister and the person entitled to compensation. If the amount of compensation is not agreed, it is to be determined by the Valuer-General.

(5)  A person entitled to compensation may agree to accept instead shares in another share management fishery which replaces the omitted fishery wholly or partly.

(6)  A person who is dissatisfied with the amount of compensation offered to the person under this section or with any delay in the payment of compensation may appeal to the Land and Environment Court.

(7)  The regulations may make provision for or with respect to the payment of compensation in accordance with this section.

(8)  This section does not apply:

(a)  if a description of a fishery is omitted from Part 2 of Schedule 1 after the fishery is terminated in accordance with Division 2A, or

(b)  if a description of a fishery is omitted from Part 2 of Schedule 1 and inserted in Part 1 of Schedule 1 (that is, the fishery is converted in accordance with Division 2A).

45   Redefinition of share management fishery

(1)  This Part applies to the redefinition of an existing share management fishery by the replacement, wholly or partly, of the description of that fishery in Schedule 1, subject to any modifications of this Part prescribed by the regulations.

(2)  The regulations may, in particular, combine any of the stages of implementation of the new share management fishery.

Division 2A Termination and conversion of category 2 share management fisheries

45A   Termination of category 2 share management fishery

(1)  The Minister may, by order published in the Gazette, terminate a category 2 share management fishery.

(2)  The termination takes effect when the current term of the shares in the fishery expires.

Note. Shares in a category 2 share management fishery are issued for 15-year periods. Under section 73A, if a new management plan is not made by the end of the first 10 years of that 15-year period, and an order has not been made terminating the fishery, the shares are automatically renewed for a further 15 years. The effect of that provision is that shareholders must be given at least 5 years’ notice of the termination of the fishery.

(3)  When the termination takes effect, the fishery is taken to cease to be a share management fishery.

(4)  The Minister is to recommend to the Governor that the description of the fishery be omitted from Schedule 1 after the termination takes effect.

45B   Regulations relating to terminated fisheries

(1)  The regulations may make provision for or with respect to the regulation and management of a category 2 share management fishery that is terminated under this Division.

(2)  Without limiting subsection (1), the regulations may declare the fishery to be a restricted fishery from the date the termination takes effect.

45C   Conversion of category 2 share management fishery to category 1

(1)  A category 2 share management fishery may be converted to a category 1 share management fishery.

(2)  A category 2 share management fishery is converted to a category 1 share management fishery if Schedule 1 is amended so as to omit the description of the fishery from Part 2 of Schedule 1 and insert that description of the fishery in Part 1 of Schedule 1.

(3)  A category 2 share management fishery cannot be redefined at the time of its conversion to a category 1 share management fishery, but the fishery may be redefined before or after its conversion.

45D   Poll of shareholders

(1)  The Management Advisory Committee for a category 2 share management fishery may request the Minister to hold a poll of shareholders on the question of whether the fishery should be converted to a category 1 share management fishery.

(2)  Within 60 days after the request is made, the Minister is to:

(a)  direct that the poll be taken, or

(b)  refer the matter back to the Management Advisory Committee for reconsideration.

If the Committee confirms its request, the Minister must, within 60 days, direct that the poll be taken.

(3)  For the purposes of a poll under this section:

(a)  shareholders are entitled to one vote irrespective of the number of shares they hold, and

(b)  2 or more persons who hold shares jointly are entitled to only one vote, and

(c)  a corporation that holds shares is required to nominate an individual to vote in the poll.

(4)  The conversion of the fishery is supported at a poll if the number of votes in support of the conversion constitutes a majority of the persons eligible to vote in the poll.

(5)  If the conversion of the fishery is supported at the poll, the Minister is, within 90 days, to recommend to the Governor that the appropriate amendment be made to Schedule 1 to effect the conversion.

(6)  A poll in respect of a fishery is not to be conducted under this section more than twice during the period in which the management plan for the fishery remains in force.

(7)  The regulations may make provision for or with respect to:

(a)  the conduct of polls under this section, and

(b)  the recovery of the costs of or in connection with a poll from shareholders in the fishery.

45E   General provisions relating to conversion

(1)  If a category 2 share management fishery is converted to a category 1 share management fishery:

(a)  the fishery is taken, subject to the regulations, to continue to be a category 2 share management fishery for the purposes of this Part until the commencement of the management plan for the category 1 share management fishery, and

(b)  the management plan for the category 2 share management fishery continues in force until that commencement (subject to any amendment of that plan in accordance with this Part), and

(c)  any entitlement to compensation under section 44 for the omission of the fishery from Schedule 1 before that commencement is to be determined on the basis that the fishery remains a category 2 share management fishery.

(2)  When the management plan for the category 1 share management fishery commences, all shares in the category 2 share management fishery are cancelled.

(3)  The regulations may make provision for or with respect to the conversion of a category 2 share management fishery to a category 1 share management fishery, including by modifying the application of this Part to the implementation of the category 1 share management fishery.

Division 3 Issue of shares

46   Invitation for shares

(1) Giving public notice
As soon as practicable after a fishery becomes a share management fishery, the Minister must give public notice of that fact and invite applications for shares by eligible persons.

(2) How given
For the purposes of this section, public notice is notice:

(a)  published in the Gazette, in a newspaper circulating throughout New South Wales and in such other publications as the Minister considers appropriate, and

(b)  given to each holder of a commercial fishing licence or, in the case of a restricted fishery, to each person authorised to take fish in the fishery.

(3) Content
The public notice must:

(a)  describe the share management fishery, and

(b)  state that after the issue of shares in the fishery access to the fishery will be restricted to shareholders, and

(c)  set out the criteria for the allocation of shares in the fishery (giving full particulars of the method of determining the persons eligible to apply for those shares and their entitlement to shares under this Division), and

(d)  provide information on the rights and obligations relating to dealings in the shares before the commencement of the management plan for the fishery, and

(e)  invite applications for shares by eligible persons (and specify the manner and time within which applications are to be made and any application fee), and

(f)  contain such other information as is prescribed by the regulations or as the Minister considers appropriate.

(4) Amendment
A public notice may be varied by a further public notice under this section.

47   Application for shares

(1)  An eligible person may apply to the Minister for the issue of shares in a share management fishery if an invitation for applications has been given by public notice under this Division.

(2)  The application is to be in writing in the form approved by the Minister and lodged with the Minister within the time specified in the public notice.

(3)  The application is to be accompanied by the application fee specified in the public notice. Any such fee is not to exceed any maximum fee prescribed by the regulations.

(4)  The Minister may require the applicant to supply additional information to support the application. The Minister may reject the application if the additional information is not supplied within the time required by the Minister.

(5)  The Minister may also obtain information from other sources in relation to the application.

48   Provisional issue of shares to applicants

(1)  The Minister is to consider each application for shares that has been duly made and issue shares to eligible applicants in accordance with their entitlement to shares under this Division. If the applicant is not eligible to apply for shares, the Minister is to refuse the application.

(2)  The shares are to be issued on a provisional basis pending the commencement of the management plan for the fishery.

(3)  The Minister must, as soon as practicable:

(a)  notify each applicant of the result of the application, and

(b)  give to each applicant a statement in writing of the names of the applicants who were provisionally issued with shares and of the number of shares issued to each such applicant, together with a statement of any rights of appeal by the applicant to the Share Appeal Panel.

(4)  Any shares issued as a result of a decision of the Share Appeal Panel are also to be issued on a provisional basis under this section.

(5)  The Minister may set aside shares available for issue to an eligible person who does not apply for the issue of the shares. The Minister may issue any such shares as the Minister sees fit, including by their issue to other applicants or by their sale by auction, tender or ballot.

49   Who may hold shares

(1)  The persons eligible to hold shares are not limited to the holders of commercial fishing licences or natural persons.

(2)  However, the regulations may prohibit a class of persons from holding shares. For example, the regulations may prohibit persons from holding shares if they have a record of offences against this Act or if they are individuals not resident in Australia or they are companies in which any such individuals have a controlling interest.

(3)  Two or more persons may jointly hold the same share.

(4)  This section does not affect any disqualification from holding shares under this Act.

50   Method of determining eligibility and entitlement to shares

(1)  The determination of the persons eligible to apply for shares in a share management fishery and their entitlement to shares is to be made in accordance with this Division and the criteria specified in the public notice inviting applications for shares.

(2)  Shares in a fishery are (subject to this section) to be allocated to persons who are the holders of current commercial fishing licences or fishing boat licences and who lawfully took fish for sale in the fishery before it became a share management fishery. If the fish were taken as an employee of some other person, the allocation is to be made to that other person.

(3)  Shares are (subject to this section) to be allocated to eligible persons in proportion to their catch history in the fishery. If more than one class of fish was caught in the fishery, the allocation is to take into account the value of each class of fish that was part of the catch history.

(4)  If a restricted fishery becomes a share management fishery, the persons entitled to shares in the fishery are the persons who, immediately before it ceased to be a restricted fishery, were entitled to take fish for sale in the restricted fishery or, if a person is entitled to take fish for sale in the restricted fishery as the employee or nominee of some other person, that other person. The allocation of shares to any such persons may be made having regard to existing entitlements in the restricted fishery.

(5)  However, if a restricted fishery is described as an exploratory or developmental fishery, the entitlement to shares in the fishery is to be determined in accordance with the regulations.

(6)  If a share management fishery is redefined, the entitlement to shares is to be determined in such manner as the Minister considers equitable having regard to the proportion of shares held in an existing fishery being redefined, the proportion of the redefined fishery to which the old shares applied, the catch history of shareholders and any other factor the Minister considers relevant.

(7)  If a category 2 share management fishery is converted to a category 1 share management fishery after the commencement of limited access to the fishery, the persons entitled to shares in the fishery are the persons who are shareholders in the category 2 share management fishery. The allocation of shares to any such person is to be made having regard to the shares held by the person in the category 2 share management fishery.

(8)  For the purpose of allocating shares in a share management fishery, if the catch history of a person is a component of a fishing business, the catch history of the person is taken to be the catch history of the person (or persons) who own that fishing business when shares are allocated.

51   Catch history

(1)  The catch history of a person is (subject to the regulations) to be determined under and in accordance with the criteria specified by the Minister in the public notice inviting eligible persons to apply for shares.

(2)  The criteria are to specify the period before the fishery becomes a share management fishery during which the catch history of a person is to be determined. The criteria may allow persons to choose their best catch history for a specified part of the relevant period.

(3)  (Repealed)

(4)  The catch history of a person is, subject to any appeal under this Part, to be determined by the Minister having regard to the records, kept by the Director-General, of fish taken by the person or such other documents as are prescribed by the regulations.

(5)  The Minister may increase the catch history of a person for any period during which the person was unable to engage in the person’s usual fishing activities because of the person’s duties as a representative of the commercial fishing industry.

52   Final issue of shares

(1)  After all appeals to the Share Management Fisheries Appeal Panel have been disposed of in connection with a share management fishery, the Minister is to make the final issue of shares to eligible persons with effect from the commencement of the management plan for the fishery.

(2)  For that purpose, the Minister may redetermine the provisional issue of shares and cancel shares so issued or issue new shares.

(3)  The Minister must, as soon as practicable:

(a)  notify each applicant for shares of the final result of the application, and

(b)  give to each applicant a statement in writing of the names of the persons who were finally issued with shares and of the number of shares issued to each such person.

(4)  The Minister must also, as soon as practicable, publish in the Gazette the names of all the persons who were finally issued with shares and the number of shares issued to each such person.

(5)  A person who was the holder of provisional shares in a fishery is not entitled to compensation because of a redetermination of the provisional issue of shares (whether under this section or as a result of any legal proceedings).

(6)  Shares are to be in such form as the Minister approves.

52A   Shares subject to appeal

(1)  Despite section 52, the Minister may cancel provisional shares or issue final shares in a share management fishery, and the management plan for that fishery may be made, even if any appeal relating to the issue of provisional shares is still outstanding.

(2)  If the Minister considers that a person’s entitlement to shares may be affected by any such appeal, the Minister may issue shares in the fishery as shares subject to appeal.

(3)  Shares subject to appeal are subject to the following special conditions:

(a)  the transfer of, or any other registrable dealing in, the shares is only permitted with the consent of the Minister,

(b)  no compensation is payable by or on behalf of the State for cancellation of the shares for any reason, including:

(i)  cancellation by the Minister resulting from a determination in relation to the appeal, or

(ii)  cancellation due to the termination of the fishery as a share management fishery,

(c)  any other conditions prescribed by the regulations.

(4)  On completion of the relevant appeal:

(a)  the Minister must cancel the shares subject to appeal, and

(b)  the Minister may, if appropriate, issue a person with shares in accordance with this Act.

Division 4 Limited access to fishery after issue of shares

53   Commencement of limited access to fishery

(1)  Shares issued provisionally in a share management fishery do not take effect until a day appointed by the Minister by order published in the Gazette for the commencement of shareholding in the fishery and for limited access to the fishery.

(2)  The day so appointed is to be at least 6 months after the fishery became a share management fishery, except in the circumstances prescribed by the regulations.

54   Limiting access to shareholders etc before commencement of management plan

(1)  After the day appointed for the commencement of limited access to a share management fishery and until the commencement of the management plan for the fishery, the fishery is a limited access fishery.

(2)  A commercial fishing licence does not authorise a person to take fish in a limited access fishery unless:

(a)  the licensee is the holder of shares in the fishery (irrespective of the number of shares held) or is an applicant for shares who has duly lodged an appeal to the Share Management Fisheries Appeal Panel and whose appeal is pending, or

(b)  the licensee is duly nominated in the Share Register by that holder or applicant to take fish on behalf of that holder or applicant,

      and the licence is duly endorsed under this Part for the taking of fish in the fishery.

(3)  A holder of shares is not entitled to have his or her licence endorsed to take fish in a 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 for the purposes of this section.

Note. An example of an acquisition that may be authorised by the regulations is an acquisition in a fishery that was previously a restricted fishery to which access could previously have been obtained by other fishers.

55   Fishery that is existing restricted fishery

(1)  A share management fishery that is also a restricted fishery ceases to be a restricted fishery when it becomes a limited access fishery.

(2)  The endorsement of a commercial fishing licence to take fish in such a restricted fishery becomes, on the fishery so ceasing to be a restricted fishery, an endorsement under this Part to take fish in the share management fishery. This subsection applies only if the person concerned is entitled under this Part to have the licence so endorsed.

(3)  Any provisions of the regulations that apply to such a restricted fishery apply (with any necessary modifications) as provisions of the regulations that apply to the limited access fishery, until those provisions are repealed.

Division 5 Management plans

56   Preparation of draft management plan

(1)  The Minister is to arrange for the preparation of a draft management plan for a share management fishery as soon as practicable after the fishery becomes a limited access fishery.

(2)  The Minister may arrange for the preparation of a new draft management plan for the fishery following a fishery review in accordance with this Part.

57   Content of management plan

(1)  The management plan for a share management fishery may make provision for or with respect to the following:

(a)  the objectives of the plan,

(b)  the classes of shares in the fishery and the provisions of the plan applicable to each such class,

(c)  the rights of shareholders to take fish or nominate others to take fish in the fishery,

(d)  the fish that may be taken in the fishery,

(e)  the area for taking fish in the fishery,

(f)  the times or periods for taking fish in the fishery,

(g)  the use of boats and fishing gear in the fishery,

(h)  the conduct of fishery reviews for the purposes of the preparation of a new plan,

(i)  the species or group of species of fish taken in the fishery that are to be subject to a total allowable catch for the commercial fishing sector,

(j)  the protection of the habitats of the species of fish that may be taken in the fishery (including habitats at all stages of the life history of any such species),

(k)  the taking of bait for use in the fishery,

(l)  the matters expressly authorised by this Act to be included in the plan,

(m)  any other matters relating to the management of the fishery that are consistent with this Act and its objects.

(2)  A management plan must:

(a)  include performance indicators to monitor whether the objectives of the plan and ecologically sustainable development are being attained, and

(b)  specify at what point a review of the management plan is required when a performance indicator is not being satisfied.

57A   Supporting plan

(1)  The Minister may arrange for the preparation of a draft plan relating to management of all or any specified class of share management fisheries (a supporting plan).

(2)  A supporting plan may make provision for or with respect to any matter for which a fishery management plan may make provision, but cannot contain any provision that could not be contained in a management plan.

(3)  A management plan for a fishery may adopt by reference any of the provisions of a supporting plan as in force at a particular time or as in force from time to time and with or without modification.

(4)  Any provisions so adopted are taken to form part of the management plan for the fishery.

(5)  A provision of a supporting plan has no effect in relation to a share management fishery except to the extent that the provision is adopted by the management plan for the fishery under this section.

(6)  The Minister may arrange for the preparation of a new supporting plan following a fishery review under this Part or at such other times as the Minister considers appropriate.

58   Public and industry consultation

(1)  The Minister is required to give the public an opportunity to make submissions on any proposed management plan or supporting plan (or proposed new plan) and to take any submission that is duly made into account.

(2)  The Minister is required to consult relevant commercial or recreational fishing bodies, and bodies representing indigenous and conservation interests, about any such proposed plan, including, in the case of a proposed management plan (or proposed new management plan), the Management Advisory Committee for the fishery to which it relates.

59   (Repealed)

60   Making of plan by regulation

(1)  A management plan for a fishery, or a supporting plan, including any amendment or new plan, is to be made by a regulation.

(2)  Any such regulation is not repealed by the operation of Part 3 of the Subordinate Legislation Act 1989.

61   Commencement of management plan or supporting plan

(1)  A management plan for a fishery commences when the regulation making the plan commences.

(2)  A supporting plan commences when the regulation making the plan commences.

62   Plan prevails over other regulations and closures

(1)  If a provision of the management plan for a fishery (or a provision of a supporting plan adopted by the management plan) is inconsistent with any other regulation under this Act or any fishing closure, the management plan prevails.

(2)  However, the management plan does not prevail over a provision of a regulation or fishing closure which is expressed to have effect despite the management plan.

(3)  Before a provision referred to in subsection (2) is made, the Minister is required to consult with the Management Advisory Committee for the fishery and certify in writing to the Governor that the matter cannot be delayed until a new management plan is made. Any such provision in a fishing closure must be approved by the Governor.

(4)  Subsection (3) does not apply to a provision that deals with an environmental emergency and which has effect for a period not exceeding 8 weeks.

63   Fisheries reviews—new plan

(1)  A management plan for a fishery is not to be replaced by a new plan until at least 5 years after the existing plan was made, unless the existing plan otherwise provides.

(2)  The Director-General is to arrange a review into each share management fishery at such times as the management plan for the fishery provides and, subject to that plan, at such other times as the Minister determines. A review must be held before the term of the shares in the fishery is due to expire.

(3)  The Director-General is to constitute a representative group of persons to assist in the conduct of the review. The group is to include representatives of the Management Advisory Committee for the fishery, and any other relevant commercial or recreational fishing industry bodies, as appropriate.

(4)  The Director-General is to report to the Minister on the review.

(5)  The Minister is to consider the report of the review and take such action (including the preparation of a new management plan) under this Act with respect to the fishery the subject of the review as the Minister considers appropriate.

64   Amendment of plan

A management plan for a fishery or supporting plan may not be directly amended unless the amendment is of a kind authorised by the plan.

65   Contravention of plan

(1)  A shareholder in a share management fishery is guilty of an offence if the shareholder (or a person nominated by the shareholder to take fish in the fishery) contravenes a provision of a management plan for the fishery, being a contravention that is a designated contravention.

Maximum penalty: In the case of a corporation, 1,000 penalty units or, in any other case, 500 penalty units.

(2)  A designated contravention is a contravention of a provision of a management plan that is designated as an offence by:

(a)  the management plan, or

(b)  a supporting plan (if adopted by the management plan).

(3)  A management plan or supporting plan may also designate whether any such offence is an offence for which the shares of the shareholder are liable to forfeiture under this Act.

Division 6 Fishing and other shareholding rights

66   Who may fish in share management fisheries after commencement of management plan

After the commencement of the management plan for a share management fishery, a commercial fishing licence does not authorise a person to take fish in the fishery unless:

(a)  the licensee is the holder of shares in the fishery or is duly nominated by that holder to take fish on behalf of that holder, and

(b)  that holder has not less than the minimum shareholding in the fishery required under this Division, and

(c)  the licence is duly endorsed, in accordance with this Division, for the taking of fish in the fishery.

67   Minimum shareholding required to fish after commencement of management plan

(1)  A person who holds shares in a share management fishery is not entitled, after the commencement of the management plan for the fishery, to take fish in the fishery or to nominate another person to do so on his or her behalf unless the person has the minimum shareholding for that fishery fixed by the management plan.

(2)  A separate minimum shareholding may be fixed in respect of a person who acquires shares after the initial issue of shares or a different minimum shareholding may be fixed for any such shareholding. Different minimum shareholdings may also be set for different classes of shares.

(3)  Minimum shareholdings may be fixed so that the minimum is increased during subsequent periods.

(4)  A management plan may provide that the requirement for a minimum shareholding may be satisfied by taking into account the shareholder’s shares in other share management fisheries or shareholder’s entitlements or catch history in other fisheries.

68   Endorsements on licences

(1)  The Minister may endorse a commercial fishing licence for the taking of fish in a share management fishery.

(2)  (Repealed)

(3)  A licence may be so endorsed only if:

(a)  the licensee is the holder of shares in the share management fishery or is duly nominated by that holder to take fish on behalf of that holder, and

(b)  the shareholder has not less than the minimum shareholding in the share management fishery required under this Division, or the minimum such shareholding for the class of shares concerned, and

(c)  any community contribution, management charge or other amount due and payable by the holder under this Part has been paid.

(4)  The licence of the holder of shares may not be endorsed if the holder has duly nominated some other commercial fisher to take fish on behalf of that holder. This subsection is subject to the management plan for the fishery.

(4A)  The licence of the holder of shares (or of a person nominated by the holder) may not be endorsed if the holder is not eligible for an endorsement as a consequence of a contravention of the fishing business transfer rules.

(4B)  The licence of a shareholder may not be endorsed if the shareholder is already authorised, by endorsement, to take fish in another share management fishery, unless the further endorsement is authorised by the management plan for each fishery in which the shareholder is, or will (as a consequence of the further endorsement), be authorised to take fish.

(4C)  Subsection (4B) does not prevent a shareholder from nominating another person to take fish on behalf of the shareholder in any fishery in which the shareholder is prevented from holding an endorsement, subject to compliance with any requirements under section 69.

(5)  An application for an endorsement is to be made in the form and manner approved by the Minister and accompanied by the fee prescribed by the regulations.

(6)  An endorsement:

(a)  remains in force for the period specified in the endorsement, and

(b)  may be renewed by the grant of an endorsement for a further period.

(6A)  The authority conferred by such an endorsement is subject to such conditions as are prescribed by the regulations or specified in the endorsement.

(6B)  The Minister may, at any time by notice in writing to the holder of a licence who is authorised by an endorsement to take fish in a share management fishery, revoke or vary the conditions of the endorsement or add new conditions. This subsection does not apply to conditions prescribed by the regulations.

(6C)  The holder of a commercial fishing licence who contravenes any condition of an endorsement on the licence under this section is guilty of an offence.

Maximum penalty:

(a)  200 penalty units or imprisonment for 6 months (or both) for a first offence, or

(b)  400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence.

(7)  An endorsement may be suspended or cancelled by the Minister:

(a)  if the holder of the licence ceases to be eligible to have the licence endorsed, or

(b)  if the shareholder fails to pay any community contribution, management charge or other amount due under this Part, or

(c)  for any other reason authorised by the management plan for the fishery or the fishing business transfer rules.

(8)  If an endorsement of a shareholder is suspended or cancelled, the shareholder is not entitled to nominate another person to take fish on the shareholder’s behalf.

(8A)  An endorsement of the licence of a shareholder, or of the licence of a nominated fisher of a shareholder, may also be revoked by the Minister on a request made by the shareholder in accordance with the requirements (if any) of the management plan for the fishery.

(8B)  The Director-General is to record particulars of any endorsement under this section, and any suspension, cancellation or revocation of an endorsement, in the Share Register.

(8C)  The Minister may approve arrangements under which a person who is eligible for an endorsement is given such an endorsement in the form of a separate document from the commercial fishing licence of the person. Any such document is taken to be an endorsement on the commercial fishing licence of the person authorised by the endorsement to take fish in the fishery, and references in this Act or the regulations to an endorsement extend to an endorsement in that form.

(9)  Until the commencement of the management plan for a fishery, the Minister may determine the matters required by this section to be determined by the plan. During that period, the requirement for a minimum shareholding does not apply and this section has effect subject to any other necessary modification.

69   Nomination of commercial fisher by holder of shares

(1)  The holder of shares in a share management fishery may nominate a commercial fisher to take fish in the fishery on behalf of that holder.

(2)  After the commencement of the management plan for the fishery, the holder may not do so unless the holder has at least the minimum shareholding in the fishery required under this Division.

(3)  The nomination is to be made in a form and manner approved by the Director-General.

(4)  The holder may nominate 2 or more commercial fishers in respect of the same shareholding if authorised to do so under the management plan for the fishery.

(5)  The holder may nominate a commercial fisher who is a shareholder in the same fishery. In that case, the shares of the nominated fisher do not, while the fisher is so nominated and unless the management plan for the fishery otherwise provides, confer any entitlement to take fish in the fishery.

(6)  However, the holder (the nominating shareholder) may not:

(a)  nominate a commercial fisher who is nominated by another shareholder in the same fishery, unless authorised to do so by the management plan for the fishery, or

(b)  nominate a commercial fisher who is nominated by another shareholder in another fishery, unless authorised to do so by the management plan for each fishery in which the commercial fisher will be authorised to take fish as a consequence of the nominations.

(7)  The management plan for a fishery may make further provision for nominations under this section, and for the revocation of nominations, including by requiring a shareholder to keep a record of a nomination or revocation of a nomination.

(8)  The Director-General is to record any nomination under this section, and any revocation of the nomination, in the Share Register.

(9)  Until the commencement of the management plan for a fishery, the Minister may determine the matters that, under this section, may be provided for by the plan.

70   Special endorsements to take fish in share management fishery

(1)  The Minister may endorse a commercial fishing licence for taking fish for sale in a share management fishery even though the commercial fisher is not entitled under this Part to have the licence so endorsed.

(2)  The Minister may do so only if the Minister is satisfied, after consultation with the Management Advisory Committee for the fishery, and with any other relevant commercial or recreational fishing industry bodies, that an available fisheries resource would not otherwise be utilised.

(3)  A commercial fishing licence endorsed under this section authorises the holder to take fish in accordance with the authority conferred by the endorsement.

(4)  An endorsement under this section:

(a)  is subject to such conditions as are prescribed by the regulations or specified in the endorsement, and

(b)  remains in force for the period of 6 months or such shorter period as is specified in the endorsement, and

(c)  may be cancelled or suspended by the Minister at any time.

(4A)  The Minister may, at any time by notice in writing to the holder of a licence who is authorised by an endorsement under this section to take fish in a share management fishery, revoke or vary the conditions of the endorsement or add new conditions. This subsection does not apply to conditions prescribed by the regulations.

(4B)  The holder of a commercial fishing licence who contravenes any condition of an endorsement on the licence under this section is guilty of an offence.

Maximum penalty: 100 penalty units.

(5)  The regulations may make provision for or with respect to endorsements under this section. In particular, the regulations may prescribe the fee payable for such an endorsement.

(6)  The Minister may approve arrangements under which a person who is proposed to be given an endorsement under this section is given the endorsement in the form of a separate document from the commercial fishing licence of the person. Any such document is taken to be an endorsement on the commercial fishing licence of the person authorised by the endorsement to take fish in the fishery, and references in this Act or the regulations to an endorsement extend to an endorsement in that form.

71   Transfer and other dealings in shares

(1)  A share in a share management fishery may be transferred, assigned, transmitted or mortgaged and any other interest of a kind prescribed by the regulations may be created in the share.

(2)  Without limiting subsection (1), shares may be transferred for the purpose of enabling 2 or more shareholders to hold their shares jointly.

(3)  A transaction that transfers, assigns, transmits, mortgages or otherwise creates an interest in a share in a share management fishery is required to be registered in the Share Register under Division 10.

(4)  This section is subject to any restriction imposed by the management plan for the fishery.

(5)  Before the commencement of the management plan for the fishery, this section applies only to the extent authorised by the regulations.

71A   Issue of further classes of shares in fishery

(1)  A management plan for a share management fishery may provide for the creation and issue of further classes of shares in the share management fishery.

(2)  Any such further classes of shares in the fishery are to be allocated to shareholders on the basis of criteria provided for by the management plan.

(3)  The criteria are to provide for the recognition of catch history of persons in the fishery during the period from 1986 to 1993 (both years inclusive) or during such other period as the plan provides.

(4)  For the purpose of allocating shares in the fishery, if the catch history of a person is a component of a fishing business, the catch history of the person is taken to be the catch history of the person (or persons) who own that fishing business when shares are allocated.

(5)  If a management plan provides for the issue of further classes of shares in a share management fishery, it is to include provision for the making of appeals to the Share Appeal Panel against decisions made under the plan in relation to the allocation of the shares.

72   Maximum shareholding permitted

(1)  The maximum shareholding in a share management fishery is the maximum shareholding fixed in the management plan for the fishery.

(2)  If no maximum shareholding is fixed in the plan, the maximum shareholding is 5% of the number of shares in the fishery at the commencement of the plan.

(3)  The maximum shareholding in a fishery fixed under this section does not apply to or affect the provisional issue of shares or the final issue of shares on the commencement of the management plan for the fishery, or the transfer of those shares to another person.

(4)  If the maximum shareholding is decreased at any time after it is fixed, the decrease in that maximum does not affect an existing shareholder. While any such existing shareholder continues to hold those shares, the maximum shareholding in respect of that shareholder is the previous maximum shareholding.

(5)  Shares in a share management fishery in excess of the maximum shareholding may not be issued to a person by the Minister or recorded in the Share Register.

(6)  Any excess shares are to be cancelled by the Minister. However, the Minister may allow a person who has acquired excess shares to dispose of those shares in accordance with this Part.

(7)  For the purposes of this section, the shareholding of a person is taken to include the shareholding of any other person who has an interest in the shares of the first-mentioned person (within the meaning of the Banks (Shareholdings) Act 1972 of the Commonwealth).

73   Duration of shareholding—category 1 share management fishery

(1)  Shares in a category 1 share management fishery are to be issued initially for a period of 10 years (calculated from the commencement of the management plan for the fishery).

(2)  If during that 10-year period (or any subsequent period for which the shares are renewed) a fishery review is conducted and a new management plan is made under this Part, the shares are taken to be renewed (from the date the new plan commences) for a further period of 10 years and the balance of the current period is terminated.

(3)  If a new management plan is not made by the end of that 10-year period (or any subsequent period for which the shares are renewed), the shares are taken to be renewed, at the end of their current period, for a further period of 10 years.

73A   Duration of shareholding—category 2 share management fishery

(1)  Shares in a category 2 share management fishery are to be issued initially for a period of 15 years (calculated from the commencement of the management plan for the fishery).

(2)  If by the end of the first 10 years of that 15-year period (or any subsequent period for which the shares are renewed):

(a)  a new management plan has not been made under this Part, and

(b)  there is no order in force under Division 2A that terminates the fishery at the end of current term of the shares in the fishery,

      the shares are taken to be renewed for a further period of 15 years and the balance of the current period is terminated.

(3)  If by the end of the first 10 years of that 15-year period (or any subsequent period for which the shares are renewed) a fishery review has been conducted and a new management plan has been made under this Part, the shares are taken to be renewed (from the date the new plan commences) for a further period of 15 years and the balance of the current period is terminated.

74   Surrender of shares

(1)  The holder of shares in a share management fishery may surrender those shares to the Minister.

(2)  The Minister is, if requested by the shareholder, to sell those shares by public tender and pay 85% of the purchase price to that holder. The balance of the purchase price (after deduction of the expenses reasonably incurred in connection with the sale) is to be credited to the Consolidated Fund.

(3)  However, if that holder does not request the Minister to sell the shares, the shares are to be cancelled and new shares are not to be issued in their place.

75   Forfeiture of shares for certain contraventions of Act

(1)  For the purposes of this section, an offence against this Act or the regulations is a share forfeiture offence for a fishery if it is designated in the management plan for the fishery as such an offence.

(2)  A court which convicts a shareholder in a share management fishery, or a commercial fisher taking fish in the fishery on behalf of the shareholder, of a share forfeiture offence may order that the shares (or any of the shares) of the shareholder be forfeited.

(3)  A court which orders the forfeiture of any such shares may also order that the holder of the shares is not eligible to hold shares in the fishery for the period specified by the court.

(4)  The regulations may also provide for the forfeiture of shares by the Minister:

(a)  for any record of convictions of a shareholder in a share management fishery, or a commercial fisher taking fish in the fishery on behalf of the shareholder, for share forfeiture offences, or

(b)  for any failure by the shareholder to pay a community contribution or other amount due under this Part (but only to the extent of the amount due).

(5)  The Minister may cancel or sell forfeited shares to which this section applies.

(5A)  Any forfeited shares sold by the Minister are to be sold by public tender.

(6)  The purchase price is to be paid to the credit of the Consolidated Fund, subject to this section.

(7)  If any amount is due under this Part in respect of the forfeited shares that would, on payment, be paid into the Commercial Fishing Trust Fund, that amount is to be deducted from the purchase price and paid to the credit of the Commercial Fishing Trust Fund, and the balance after payment is to be paid to the credit of the Consolidated Fund.

(8)  If shares are forfeited for a failure by the shareholder to pay a community contribution or other amount due under this Part, the following provisions apply:

(a)  any community contribution due under this Part is to be deducted from the purchase price and paid to the credit of the Consolidated Fund,

(b)  any other amount due under this Part that would, on payment, be paid into the Commercial Fishing Trust Fund, is to be deducted from the purchase price and paid to the credit of the Commercial Fishing Trust Fund,

(c)  any reasonable costs incurred by or on behalf of the Minister in connection with the sale of the shares are to be deducted from the purchase price and paid to the credit of the Consolidated Fund,

(d)  the balance (if any) remaining after payment of the amounts referred to in paragraphs (a)–(c) is to be paid to the shareholder.

(9)  The regulations may authorise or require the payment of any part of the purchase price to a person (other than the shareholder) who had an interest in the shares. Any such payment may be made only after payment of the amounts referred to in subsection (8) (a)–(c).

(10)  The Minister may recover from a person, as a debt in any court of competent jurisdiction, any reasonable costs incurred by or on behalf of the Minister in selling shares forfeited by the person, being costs not otherwise recovered as provided by this section.

(11)  The Minister is not liable to pay any community contribution or other amount under this Act that becomes payable in respect of forfeited shares following the forfeiture.

Division 7 Management charges and community contributions

76   Management charges

(1)  The Minister may, subject to this section, determine the management charge payable by holders of shares in a share management fishery. The charge is payable annually, or as otherwise determined by the Minister.

(2)  The management charge is to be such amount as the Minister considers necessary to meet the costs of management for that fishery, being costs of management that are attributed to industry by the management plan for the fishery.

(3)  The management charge is not to exceed the amount prescribed by the management plan for the fishery.

(4)  The management charge is payable by shareholders in proportion to their shareholding or as otherwise provided by the management plan.

(4A)  The management charge may be fixed to provide for, and the provisions of a management plan relating to the management charge may facilitate, either or both of the following:

(a)  the calculation of a single management charge for more than one share management fishery (that is, so that holders of shares in more than one share management fishery are not liable to pay a separate management charge in respect of each fishery),

(b)  the calculation of a single management charge for a single fishing business (even if the fishing business is comprised of, or includes, shares in more than one share management fishery).

(5)  The management plan may authorise the payment of management charges by instalments.

(6)  If a management charge, or an instalment of a management charge, is unpaid after the due date for its payment, the Minister may charge interest on the overdue amount at the rate payable from time to time in respect of judgments of the Supreme Court or, if some other rate is prescribed by the management plan for the fishery, that rate.

(7)  Interest may be charged under subsection (6) for each day that has elapsed between the date on which payment is due and the date of payment.

(7A)  Interest charged on an overdue management charge, or an instalment of a management charge, under subsection (6) is taken to be part of the management charge.

(8)  Until the commencement of the management plan for a fishery, the Minister may (after consultation with the Management Advisory Committee for the fishery) determine the matters that may be provided for by the plan.

77   Community contribution for access to category 1 share management fishery

(1)  Shareholders in a category 1 share management fishery are required to make a periodic contribution for their right of access to the fishery (a community contribution).

(2)  The community contribution is payable after the commencement of, and in accordance with, the management plan for the fishery.

(3)  The community contribution is to be credited to the Consolidated Fund.

(4)  The community contribution is to be based on the size of the shareholding in the fishery, or as otherwise provided by the management plan for the fishery.

(5)  The rate of the community contribution, method of its payment and other matters concerning its payment are to be prescribed by the management plan, and not otherwise.

(6)  The management plan for the fishery may exempt a shareholder from making the community contribution (or reduce any such contribution) if the full rights to take fish in the fishery in accordance with the shareholding have not been exercised during the relevant period.

(7)  The Treasurer’s concurrence is required before any provisions relating to community contributions are inserted in a management plan.

77A   Rental charge for access to category 2 share management fishery

(1)  Shareholders in a category 2 share management fishery are required to pay a rental charge for their right of access to the fishery.

(2)  The amount of the rental charge, the method of its payment and other matters concerning its payment are to be provided for by the management plan.

(3)  The maximum rental charge is $100 for a 12-month period.

(4)  The management plan for a fishery may provide for the adjustment of the maximum rental charge to take into account changes in the consumer price index. In that case, the maximum rental charge is the amount so adjusted.

(5)  A person is exempt from paying the rental charge:

(a)  if the person holds shares in another category 2 share management fishery and has paid a rental charge for the same period in respect of that other fishery (unless the management plan otherwise provides), or

(b)  in such other circumstances as may be provided for by the management plan.

(6)  This section applies in respect of a category 2 share management fishery:

(a)  if the fishery is, before the commencement of limited access to the fishery, also a restricted fishery—on and from the day the fishery becomes a share management fishery, or

(b)  in any other case—on and from the day appointed for the commencement of limited access to the fishery.

(7)  Until the commencement of the management plan for the fishery, the Minister may determine the matters that under this section may be provided for by the plan.

(8)  For the purposes of this section:

(a)  an applicant for shares in a category 2 share management fishery who has duly lodged an appeal to the Share Appeal Panel, and whose appeal is pending, is taken to be a shareholder in the fishery, and

(b)  if a category 2 share management fishery is also a restricted fishery—a person authorised to take fish in the fishery or, if a person is authorised to take fish in the fishery as the employee or nominee of some other person, that other person is taken to be a shareholder in the fishery.

Division 8 Allocation of total allowable commercial catch among shareholders

78   Allocation of total allowable catch among shareholders in fishery

(1)  This section applies to any determination of the total allowable catch of fish for the commercial fishing sector that is required under the management plan for a share management fishery.

(2)  The Minister is to allocate among shareholders in all relevant share management fishery the whole total allowable catch of fish for the commercial fishing sector.

(3)  An allocation among shareholders in a particular fishery is to be made in proportion to the shareholdings of the persons concerned.

(3A)  The management plan for a fishery that includes different kinds of fish may, for the purposes of this section, provide for different classes of shareholders in the fishery having regard to the kind of fish taken by the shareholders (including in connection with any catch history on which the criteria for shareholding in the fishery was based). The management plan may provide (despite subsection (3)) for the allocation of the total allowable catch of a particular kind of fish among the relevant class of shareholders only.

(4)  If 2 or more fisheries are involved in the allocation, the total amount allocated to each fishery is to be determined by the TAC Committee having regard to the relative composition of the catch of fish for each fishery concerned.

(5)  An allocation is to be made to all shareholders, whether or not they hold the minimum shareholding required to fish in the fishery.

(6)  The Minister may delay making an allocation and not restrict the catch of shareholders.

(7)  However, if it appears that the total allowable catch may be exceeded because of any such delay, the Minister is to allocate the balance of the total allowable catch during the remaining fishing period to which it applies in accordance with this section. A shareholder is not entitled to any such allocation if the shareholder would become entitled to take more fish than the shareholder would have been entitled to take if the allocation had not been delayed.

(8)  If any shares have been forfeited or surrendered, but not yet sold, an allocation is to be made in respect of those shares and dealt with in such manner as the Minister thinks fit.

(9)  An allocation is to be notified in writing to each shareholder concerned.

79   Transfer of allocations

(1)  A shareholder in a share management fishery may transfer to any other shareholder in that fishery the whole or any part of his or her allocation under this Division of the total allowable catch concerned in accordance with the management plan for the fishery.

(2)  Subject to the management plan:

(a)  a shareholder may not acquire by any such transfers more than twice the amount of the shareholder’s actual allocation, and

(b)  a transfer may not be made after the end of the fishing period to which the allocation relates.

(3)  A transaction that purports to have the effect of transferring the whole or any part of an allocation does not have effect until it is notified in writing to the Director-General.

80   Carry over to, or borrowing from, future allocations

(1)  The management plan for a share management fishery may authorise a shareholder in the fishery:

(a)  to transfer to the next fishing period any part of the allocation of the total allowable catch for the current fishing period that is not taken during the current period, or

(b)  to transfer to the allocation of the total allowable catch for the current fishing period part of the allocation for the next fishing period.

(2)  Subject to any such management plan, a transfer under this section takes effect when it is notified to the Director-General in writing by the shareholder.

81   Payment for fish caught in excess of allocation or forfeiture of shares

(1)  A shareholder who, during any period, takes more fish than the shareholder’s allocation under this Division (whether personally or by means of a nominated fisher) is required to pay to the Director-General the value of the excess fish so caught. The amount paid is to be credited to the Consolidated Fund.

(2)  If the amount required to be paid by the shareholder is not paid within the time specified by the Minister in a written notice to the shareholder, the requisite number of shares of the shareholder specified in that notice are forfeited.

(3)  The requisite number of shares is the number of shares that, if sold by public tender, would in the Minister’s opinion raise an amount equivalent to the amount required to be paid by the shareholder.

(4)  If the shareholder does not have sufficient shares, the balance of the amount required to be paid by the shareholder may be recovered by the Minister as a debt in a court of competent jurisdiction.

(5)  The value of fish for the purposes of this section is the value that the Minister considers to be the market value of the fish. If the Minister is satisfied that the shareholder did not intend to exceed the shareholders’ allocation, the Minister is to reduce the value by the amount the Minister considers appropriate for the costs incurred by the shareholder in taking the fish.

(6)  The Minister is to sell any shares forfeited under this section by public tender. The purchase price (after deduction of the expenses reasonably incurred in connection with the sale) is to be credited to the Consolidated Fund.

(7)  Before finally selling any such share by public tender, the Minister is required to offer to sell the share to the original holder for the tender price.

(8)  For the purposes of this section, fish taken by a shareholder include fish taken on behalf of the shareholder by a commercial fisher duly nominated by the shareholder under this Part.

(9)  Nothing in this section precludes proceedings being taken for an offence against this Act or the regulations.

(10)  The management plan for a fishery may provide that this section does not apply in specified circumstances to the taking of fish in the fishery.

Division 9 Share Management Fisheries Appeal Panel

82   Establishment of Panel

A Share Management Fisheries Appeal Panel (the Share Appeal Panel) is established.

83   Composition and procedure of Panel

(1)  The Share Appeal Panel is to consist of 3 members, as follows:

(a)  a person appointed by the Minister as the Chairperson of that Panel, being a person who is neither engaged in the administration of this Act nor in commercial fishing,

(b)  the Director-General or a nominee of the Director-General,

(c)  a person appointed by the Minister on the nomination of such relevant commercial fishing industry bodies as the Minister determines, being a person with extensive practical experience in the commercial fishing industry.

(2)  The Minister may constitute that Panel with different members for different share management fisheries.

(3)  A person who has a financial interest in a commercial fishery to which an appeal relates is not eligible to be appointed under subsection (1) (c) to that Panel for the purpose of hearing that appeal.

(4)  Schedule 3 has effect with respect to the members of the Panel.

84   Making of appeals

(1)  An applicant for shares in a share management fishery may appeal to the Share Appeal Panel against a decision under this Part relating to the provisional issue of shares in the fishery under section 48.

(1A)  An appeal cannot be made to that Panel under subsection (1) after the making of a share management plan for the fishery to which the appeal relates. However, the making of a share management plan does not affect any appeal that was made, but not finally determined, before the making of the plan.

(2)  The regulations may provide for other appeals to that Panel against decisions under this Part relating to a share management fishery.

(3)  An appeal is to be made within the time and in the manner prescribed by the regulations.

(4)  An appeal is to be accompanied by such fee or deposit as is prescribed by the regulations.

85   Hearing and determination of appeals

(1)  The Share Appeal Panel is to hear each appeal duly made to it.

(2)  The Panel may, for the purpose of the appeal, exercise the functions of the person who made the decision concerned.

(3)  That Panel may:

(a)  uphold the decision, or

(b)  vary the decision, or

(c)  set the decision aside and substitute a new decision.

(4)  A decision as varied or substituted is to be given effect to under this Part.

Note. See sections 48 and 52.

(5)  That Panel is to give to each party to an appeal a written statement of its determination and of the reasons for its determination.

86   Procedure at appeals

(1)  In proceedings before the Share Appeal Panel:

(a)  the procedure of that Panel is, subject to this Act and the regulations, to be determined by the Panel, and

(b)  the proceedings are to be conducted with as little formality and technicality, and as quickly, as the requirements of this Act and the proper consideration of the matter permit, and

(c)  that Panel is not bound by the rules of evidence but may inform itself on any matter in any way it thinks appropriate.

(2)  The time, date and place for the hearing of an appeal is to be fixed by the Chairperson of that Panel and notified in writing by the Chairperson to each party to the appeal.

(3)  The Chairperson of that Panel is to preside at any hearing of an appeal.

(4)  At the hearing of an appeal, a party to the appeal may appear in person or be represented by an Australian legal practitioner or any other person.

(5)  Hearings may be conducted in public or in private.

(6)  The Panel may, with the approval of the appellants, hear 2 or more appeals together.

(7)  An appeal may be heard and determined despite the absence or vacancy in the office of one of its members (other than the Chairperson). This subsection applies only if the appellant consents to the continuation of the hearing.

(8)  An appeal may continue to be heard and determined despite a change in the membership of the Panel (other than the Chairperson).

(9)  An appeal and any question concerning the appeal are to be determined according to the opinion of the majority of the members of the Panel hearing the appeal. If there are only 2 members, they are to be determined according to the opinion of the Chairperson.

87   Power to summon witnesses and take evidence

(1)  The Chairperson of the Share Appeal Panel may summon a person to appear at a hearing of an appeal to give evidence and to produce such documents (if any) as are referred to in the summons.

(2)  The Chairperson of that Panel may require a person appearing at the hearing of an appeal to produce a document.

(3)  That Panel may, at a hearing, take evidence on oath or affirmation and, for that purpose:

(a)  the Chairperson of that Panel may require a person appearing at the hearing to give evidence either to take an oath or to make an affirmation in a form approved by the Chairperson, and

(b)  the Chairperson may administer an oath or affirmation to a person so appearing at the hearing.

(4)  A person served with a summons to appear at a hearing to give evidence must not, without reasonable excuse:

(a)  fail to attend as required by the summons, or

(b)  fail to attend from day to day unless excused, or released from further attendance, by the Chairperson of that Panel.

Maximum penalty: 20 penalty units.

(5)  A person appearing at a hearing to give evidence must not, without reasonable excuse:

(a)  when required to take an oath or make an affirmation—refuse or fail to comply with the requirement, or

(b)  refuse or fail to answer a question that the person is required to answer by the Chairperson of that Panel, or

(c)  refuse or fail to produce a document that the person is required to produce by a summons served under this section.

Maximum penalty (subsection (5)): 20 penalty units.

88   Power to obtain documents

(1)  The Chairperson of the Share Appeal Panel may, by notice in writing served on a person, require the person:

(a)  to attend, at a time and place specified in the notice, before a person specified in the notice, being the Chairperson or a person authorised by the Chairperson in that behalf, and

(b)  to produce, at that time and place, to the person so specified a document specified in the notice.

(2)  A person must not, without reasonable excuse, refuse or fail to comply with a notice served on the person under this section.

Maximum penalty: 20 penalty units.

Division 10 Share Management Fisheries Register

89   Establishment and keeping of Share Register

(1)  The Director-General is required to establish and keep a Share Management Fisheries Register (the Share Register).

(2)  The Share Register may be kept wholly or partly by means of a computer.

(3)  If the Share Register is kept wholly or partly by means of a computer:

(a)  references in this Act to an entry in the Share Register are to be read as including references to a record of particulars kept by means of the computer and comprising the Share Register or part of the Share Register, and

(b)  references in this Act to particulars being registered, or entered in the Share Register, are to be read as including references to the keeping of a record of those particulars as part of the Share Register by means of the computer, and

(c)  references in this Act to the rectification of the Share Register are to be read as including references to the rectification of the record of particulars kept by means of the computer and comprising the Share Register or part of the Share Register.

90   Registration of shares

(1)  The Director-General must register any shares in a share management fishery issued by the Minister by entering in the Share Register the following particulars:

(a)  the name of the person to whom the shares are issued,

(a1)  if the shares are a component of a fishing business, the number allocated to the fishing business by the Director-General under this Act,

(b)  the number of shares issued,

(c)  the share management fishery for which the shares are issued,

(d)  the period for which the shares are issued,

(e)  such other particulars (if any) as are prescribed by the regulations.

(2)  The Director-General must register any renewal of shares in a share management fishery by entering in the Share Register the following particulars:

(a)  the fact that the shares have been renewed,

(b)  the period for which the shares are renewed,

(c)  such other particulars (if any) as are prescribed by the regulations.

91   Registration of dealings in shares

(1)  A transaction that purports to have the effect of transferring, assigning, transmitting, mortgaging or otherwise creating an interest in a share in any share management fishery does not have that effect until it is registered in the Share Register.

(2)  A party to such a transaction may make an application to the Director-General for the transaction to be registered.

(3)  Such an application must be in a form approved by the Director-General and must be accompanied:

(a)  by the document that embodies the transaction, and

(b)  by a document setting out such particulars (if any) as are prescribed by the regulations for the purposes of this paragraph, and

(c)  by duplicates of the documents referred to in paragraphs (a) and (b), and

(d)  by such fee (if any) as is prescribed by the regulations.

(4)  If such an application is approved by the Director-General, the Director-General must:

(a)  register the transaction by entering in the Share Register particulars of the name of the person acquiring the interest and a description of the transaction, and

(b)  endorse on the document relating to the transaction and the duplicate of that document the fact of the entry having been made, together with the date and time of the making of the entry.

(5)  When those entries in the Share Register have been made:

(a)  the duplicate of the document relating to the transaction is to be retained by the Director-General and made available for inspection in accordance with this Division, and

(b)  the original document is to be returned to the person who made the application for registration.

(6)  The Director-General is not to register a dealing in a share in any share management fishery if the dealing would result in a shareholder acquiring more shares in the fishery than is permitted by this Act or if the dealing would otherwise contravene this Act.

92   Trusts not registrable

(1)  The Director-General is taken not to have notice of any kind of trust relating to shares in a share management fishery.

(2)  Notice of any such trust must not be registered by the Director-General.

93   Power of holder to deal with shares

(1)  The holder of any share in a share management fishery may, subject to this Part, deal with the share as its absolute owner and give good discharges for any consideration for any such dealing.

(2)  Subsection (1):

(a)  is subject to any rights appearing in the Share Register to belong to another person, and

(b)  only protects a person who deals with the holder of the share as a purchaser in good faith for value and without notice of any fraud on the part of the holder.

(3)  Equities in relation to a share in a share management fishery may be enforced against the holder of the right except to the prejudice of a person protected by subsection (2).

94   Surrender of shares to be noted in Share Register

If a share in a share management fishery is surrendered, the Director-General must make an entry in the Share Register to that effect.

95   Cancellation or forfeiture of shares to be noted in Share Register

(1)  If a share in a share management fishery is cancelled, forfeited or otherwise ceases to have effect, the Director-General must make an entry in the Share Register to that effect.

(2)  If, because of a decision made by the Minister or a court, an entry made by the Director-General under subsection (1) is no longer correct, the Director-General must rectify the Share Register.

(3)  If:

(a)  the Director-General makes an entry in the Share Register under subsection (1), or rectifies the Share Register under subsection (2), concerning a share, and

(b)  a person other than the holder of the share has an interest in the share, and

(c)  the interest is one in relation to which a transaction has been registered under section 91 (Registration of dealings in shares),

      the Director-General must give the person written notice of the entry or rectification.

96   Director-General not concerned as to the effect of documents lodged for registration

The Director-General is not concerned with the effect in law of any document lodged under section 91 (Registration of dealings in shares) and the registration of the transaction concerned does not give to the document any effect that it would not have if this Division had not been enacted.

97   Inspection of Share Register and registered documents

(1)  On payment by a person of the prescribed fee (if any), the Director-General must, during the ordinary business hours of the Director-General’s office, make available for inspection the Share Register and all copies of registered documents retained by the Director-General in accordance with section 91 (Registration of dealings in shares).

(2)  If the Share Register is kept wholly or partly by means of a computer, this section is taken to be complied with by making the contents of the Share Register available for inspection on the website of the Department.

98   Evidentiary provisions

(1)  The Share Register is evidence of any particulars registered in it.

(2)  If the Share Register is wholly or partly kept by means of a computer, a document issued by the Director-General producing in writing particulars included in the Share Register, or the part kept by means of a computer, is admissible in legal proceedings as evidence of those particulars.

(3)  A copy of the Share Register or an entry in the Share Register is, if purporting to be signed by the Director-General, admissible in evidence in legal proceedings as if the copy were the original.

(4)  A copy of a document, or part of a document, retained by the Director-General under section 91 (Registration of dealings in shares) is, if purporting to be signed by the Director-General, admissible in evidence in legal proceedings as if the copy were the original.

(5)  The Director-General must, on application made by a person in a form approved by the Director-General, provide the person with a document or copy that is admissible in legal proceedings because of this section.

99   Correction of Share Register

The Director-General may correct any error or mistake in the Share Register.

100   Exculpation for liability for anything done under this Division

The Minister, the Director-General and other persons employed in the administration of this Division are not liable in any civil proceedings for anything done or omitted to be done in good faith in the exercise or purported exercise of any function imposed or conferred by this Division.

101   Offences under the Division

A person must not:

(a)  make, or cause to be made or concur in making, an entry in the Share Register knowing it to be false or misleading in a material respect, or

(b)  produce or tender in legal proceedings a document knowing that it falsely purports to be an instrument (or copy of an instrument) lodged with the Director-General under this Division or a copy of the Share Register or of an entry in the Share Register.

Maximum penalty: 50 penalty units.

Part 4 Licensing and other commercial fisheries management

Division 1 Commercial fishing licences

102   Commercial fishers required to be licensed

(1)  A person must not take fish for sale from waters to which this Act applies unless the person is authorised to do so by a commercial fishing licence.

Maximum penalty:

(a)  in the case of an individual:

(i)  1,000 penalty units for a first offence, or

(ii)  2,000 penalty units for a second or subsequent offence, or

(b)  in the case of a corporation:

(i)  2,000 penalty units for a first offence, or

(ii)  4,000 penalty units for a second or subsequent offence.

(2)  This section does not apply to a member of the crew of a boat licensed under Division 2 who takes fish as an employee or agent of the master of the boat.

Note. A commercial fishing licence will, under other provisions of this Act, require an endorsement if the holder is to take fish in a share management fishery or in a restricted fishery.

103   Who may hold licence

(1)  A corporation may not hold a commercial fishing licence.

(2)  An individual may hold a commercial fishing licence only if:

(a)  the individual is a shareholder in a share management fishery or is duly nominated by the shareholder under Part 3 to take fish on behalf of the shareholder, or

(b)  the individual held a fisherman’s licence under section 25 of the Fisheries and Oyster Farms Act 1935 immediately before the repeal of that section by this Act, or

(c)  the individual is otherwise authorised by the regulations to hold a commercial fishing licence.

(3)  If an individual is only entitled to a licence under subsection (2) (a), the licence must be restricted to the taking of fish in the share management fishery concerned.

104   Provisions relating to licensing of commercial fishers

(1)  Any eligible person may apply to the Minister for a commercial fishing licence.

(2)  An application is to be in the form approved by the Minister.

(3)  The Minister is required to issue a licence to an eligible applicant unless the Minister is authorised by the regulations to refuse the application.

(4)  A commercial fishing licence:

(a)  is subject to such conditions as are prescribed by the regulations or specified in the licence, and

(b)  remains in force for such period as is specified in the licence, and

(c)  may be renewed from time to time in accordance with the regulations, and

(d)  is not transferable, and

(e)  may be cancelled or suspended by the Minister in the circumstances authorised by the regulations.

(5)  The regulations may prescribe different classes of licences.

(6)  The Minister may, at any time by notice in writing to the holder of a commercial fishing licence, revoke or vary the conditions of or endorsements on the licence or add new conditions or endorsements. This subsection does not apply to conditions prescribed by the regulations.

(7)  The holder of a commercial fishing licence who contravenes any condition of the licence is guilty of an offence.

Maximum penalty: 100 penalty units.

(8)  The regulations may make provision for or with respect to commercial fishing licences. In particular, the regulations may prescribe the qualifications relating to fishing activities required for the issue of a licence and the fee or fees payable in respect of an application for the issue or renewal of a licence.

105   Evidentiary provision

The fact that a person holds a commercial fishing licence is evidence that fish taken by the person or in the person’s possession were fish taken or in possession for sale.

106   (Repealed)

Division 2 Commercial fishing boats

107   Commercial fishing boat to be licensed

(1)  The master of a boat must not use the boat for any of the following purposes unless the boat is licensed under this Division:

(a)  to take fish for sale from waters to which this Act applies,

(b)  to land fish in New South Wales that were taken from other waters (after the boat departed from a port in New South Wales).

Maximum penalty: 100 penalty units.

(2)  The regulations may provide that a boat licensed under a law of the Commonwealth or of another State or a Territory is taken to be licensed under this Division.

108   Provisions relating to licensing of boats

(1)  The owner of a boat (or a person authorised by the owner) may apply to the Minister for the issue of a licence for the boat.

(2)  An application is to be in the form approved by the Minister.

(3)  The Minister is required to issue a licence for a boat if application for the licence is duly made unless the Minister is authorised by the regulations to refuse the application.

(4)  The licence for a boat:

(a)  is subject to such conditions as are prescribed by the regulations or specified in the licence, and

(b)  remains in force for such period as is specified in the licence, and

(c)  may be renewed from time to time in accordance with the regulations, and

(d)  may be cancelled or suspended by the Minister in the circumstances authorised by the regulations.

(5)  The regulations may prescribe different classes of licences for boats.

(6)  The Minister may, at any time by notice in writing to the holder of a licence for a boat, revoke or vary the conditions of the licence or add new conditions. This subsection does not apply to conditions prescribed by the regulations.

(7)  The holder of the licence for a boat who contravenes any condition of the licence is guilty of an offence.

Maximum penalty: 100 penalty units.

(8)  The regulations may make provision for or with respect to licences for boats. In particular, the regulations may prescribe the fee or fees payable in respect of an application for the issue or renewal of a licence.

109   Evidentiary provision

The fact that a boat is a licensed fishing boat is evidence that fish taken by use of the boat, or landed from the boat, were fish taken for sale.

110   Crew of fishing boats

(1)  Each member of the crew of a licensed fishing boat which is being used to take fish must (subject to this section) be registered by the Director-General.

(2)  A person who is not registered may act as a member of the crew of a boat if a registered crew member is not available when the boat leaves port.

(3)  Registration is not limited to any particular boat.

(4)  A crew member is not required to be registered if he or she holds a commercial fishing licence.

(5)  A commercial fishing licence or the licence for a boat may authorise the use of persons who are not registered as crew members on a boat.

(6)  Application for registration may be made to the Director-General by the crew member or by the master of the boat.

(7)  Application for registration is to be in the form approved by the Director-General and accompanied by such fee (if any) as is prescribed by the regulations.

(8)  The Director-General is required to register a crew member if application is duly made for that registration.

(9)  If a member of the crew of a licensed fishing boat is not registered when required by this section, the master of the boat is guilty of an offence.

Maximum penalty: 50 penalty units.

(10)  The regulations may make provision for or with respect to the registration of crew members, the maximum number of crew members to be used on a boat and the records to be kept about crew members.

Division 3 Exploratory, developmental and other restricted fisheries

111   Declaration of restricted fisheries

(1)  The regulations may declare that a fishery (not being a share management fishery in respect of which shares issued in the fishery have taken effect) is a restricted fishery for the purposes of this Act.

(2)  The fishery may be described in the declaration as an exploratory, developmental or other class of restricted fishery.

(3)  Before a fishery is declared to be a restricted fishery, the Minister is required to consult relevant commercial or recreational fishing industry bodies about the proposed declaration and to notify the proposal publicly.

(4)  A fishery that is declared to be a restricted fishery ceases to be a restricted fishery if the declaration is revoked by the regulations or if the period (if any) specified by the regulations as the period during which the fishery is a restricted fishery expires.

Note. A fishery also ceases to be a restricted fishery if it becomes a limited access share management fishery—see section 55.

112   Commercial fishing licence to be endorsed for restricted fishery

(1)  A commercial fishing licence does not authorise a person to take fish for sale in a restricted fishery unless the holder is authorised by the Minister, by an endorsement on the licence, to do so.

(2)  The authority conferred by such an endorsement is subject to such conditions as are prescribed by the regulations or specified in the endorsement.

(3)  The Minister may, at any time by notice in writing to the holder of a licence who is authorised by an endorsement to take fish in a restricted fishery, revoke or vary the conditions of the endorsement or add new conditions. This subsection does not apply to conditions prescribed by the regulations.

(4)  The holder of a commercial fishing licence who contravenes any condition of an endorsement on the licence under this section is guilty of an offence.

Maximum penalty:

(a)  200 penalty units or imprisonment for 6 months (or both) for a first offence, or

(b)  400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence.

(5)  The Minister may approve arrangements under which a person who is eligible for an endorsement in a restricted fishery is given an endorsement in the form of a separate document from the commercial fishing licence of the person. Any such document is taken to be an endorsement on the commercial fishing licence of the person authorised by the endorsement to take fish in the fishery, and references in this Act or the regulations to an endorsement extend to an endorsement in that form.

113   Restriction on the number of licences endorsed for restricted fishery

(1)  The regulations may fix the maximum number of commercial fishing licences that may be endorsed in respect of a specified restricted fishery.

(2)  Eligibility for endorsement of commercial fishing licences is to be determined in accordance with the regulations.

114   Endorsements not transferable

An endorsement of a commercial fishing licence under this Division is not transferable, unless authorised by the regulations.

115   Compensation not payable

Compensation is not payable by or on behalf of the State because a fishery ceases to be a restricted fishery at the end of the period for which it was declared to be a restricted fishery or at any time during that period.

115A   Annual contribution to industry costs

(1)  A participant in a restricted fishery must, if the regulations so require, pay to the Minister an annual contribution towards one or more of the following:

(a)  the costs of taking measures to enhance, maintain or protect the effective management of commercial fishing,

(b)  the costs of carrying out research into commercial fishing,

(c)  the costs of management and administration of commercial fishing,

(d)  the costs of ensuring compliance with commercial fishing regulatory controls,

(e)  the costs of consultative arrangements with commercial fishers.

(2)  For the purposes of this section, a participant in a restricted fishery means:

(a)  a person who has an endorsement on his or her commercial fishing licence that authorises the person to take fish for sale in the restricted fishery, or

(b)  the owner of a fishing business of which the endorsement is a component.

(3)  The amount of the contribution is to be specified in or determined under the regulations.

(4)  The regulations may provide for payment of the annual contribution by instalments.

(5)  If a contribution, or an instalment of a contribution, is unpaid after the due date for its payment, the Minister may charge interest on the overdue amount at the rate payable from time to time in respect of judgments of the Supreme Court or, if some other rate is prescribed by the regulations, that rate.

(6)  Interest may be charged for each day that has elapsed between the date on which payment is due and the date of payment.

(7)  Interest charged on an overdue annual contribution, or instalment of a contribution, under subsection (5) is taken to be part of the contribution.

116   Other regulations

The regulations may make provision for or with respect to:

(a)  the endorsement of commercial fishing licences and the cancellation, suspension or transfer of those endorsements, and

(b)  imposing restrictions on the quantity of fish taken in a restricted fishery or on the method or times for taking those fish, and

(c)  otherwise giving effect to this Division.

Division 4 Fish receivers

117   Fish receiver to be registered

(1)  A person who receives fish, for resale or other commercial use, from a person whom he or she knows or reasonably suspects to be a commercial fisher (or a person acting on behalf of such a commercial fisher) is guilty of an offence unless the fish receiver is registered under this Division.

Maximum penalty: In the case of a corporation, 500 penalty units or, in any other case, 100 penalty units or imprisonment for 3 months, or both.

(2)  The person is not required to be registered under this Division if:

(a)  (Repealed)

(b)  the person has received from all commercial fishers (or persons acting on their behalf) less than the minimum quantity of fish prescribed by the regulations during the period so prescribed, or

(c)  the fish are received in the person’s capacity as an employee or agent of another fish receiver, or

(d)  the fish are received for the purpose only of transporting them on behalf of the owner of the fish, or

(e)  the regulations otherwise provide.

118   Provisions relating to registration

(1)  Any person may apply to the Minister to be registered under this Division as a fish receiver.

(2)  An application is to be in the form approved by the Minister and is to be accompanied by such fee (if any) as is prescribed by the regulations.

(3)  The Minister is required to register an applicant as a fish receiver unless the Minister is authorised by the regulations to refuse the application.

(4)  The regulations may prescribe different classes of registered fish receivers.

(5)  The registration of a fish receiver:

(a)  is subject to such conditions as are prescribed by the regulations or specified in the certificate of registration, and

(b)  remains in force for the period of 1 year or such other period as is specified in the certificate of registration, and

(c)  may be renewed from time to time in accordance with the regulations, and

(d)  may be cancelled or suspended by the Minister in the circumstances authorised by the regulations.

(6)  The Minister may, at any time by notice in writing to a registered fish receiver, revoke or vary the conditions of the registration or add new conditions. This subsection does not apply to conditions prescribed by the regulations.

(7)  A registered fish receiver who contravenes any condition of the registration is guilty of an offence.

Maximum penalty: 100 penalty units.

(8)  The regulations may make provision for or with respect to the registration of fish receivers.

119   Fish receiver to supply information

(1)  A fisheries officer may, by written notice to a registered fish receiver, require the fish receiver:

(a)  to give the fisheries officer, within such reasonable time as is specified in the notice, such information relating to fish received by the fish receiver as is specified in the notice, and

(b)  to verify that information by statutory declaration.

(2)  The regulations may make provision for or with respect to the information to be given by registered fish receivers.

(3)  A registered fish receiver must not, without reasonable excuse, refuse or fail to give information required by or under this section.

Maximum penalty: In the case of a corporation, 500 penalty units or, in any other case, 100 penalty units or imprisonment for 3 months, or both.

120   Evidentiary provision

The fact that a person is a registered fish receiver is evidence that fish in the person’s possession were fish taken or in possession for sale.

Division 5 Fish records

121   Records to be made by commercial fishers

(1)  A commercial fisher must make such records as the regulations require in respect of fishing activities engaged in by the commercial fisher for commercial purposes.

(2)  In particular, the regulations may require a record to be made of the following:

(a)  particulars of all fishing activities engaged in by a commercial fisher for commercial purposes (including those where no fish were taken),

(b)  particulars of all fish taken during those fishing activities,

(c)  the location in which the fishing activities were carried out,

(d)  the fishing gear used in connection with the fishing activities,

(e)  any period in which the commercial fisher did not engage in any fishing activities for commercial purposes.

(3)  The record must be made in such form and manner as is prescribed by the regulations or (subject to the regulations) as is approved by the Minister.

(4)  A commercial fisher who fails to make a record as required by this section is guilty of an offence.

Maximum penalty: 200 penalty units.

(5)  A commercial fisher who is required to make a record under this section must, if the regulations so require, ensure that a copy of the record is sent to the Director-General within such period as the regulations prescribe.

Maximum penalty: 10 penalty units.

122   Records to be made by employers of commercial fishers

(1)  A fishing employer must make such records as the regulations require in respect of fishing activities engaged in by a nominated fisher on behalf of the fishing employer.

(2)  In particular, the regulations may require a record to be made of the following:

(a)  particulars of all fishing activities engaged in by a nominated fisher on behalf of the fishing employer (including those where no fish were taken),

(b)  particulars of all fish taken during those fishing activities,

(c)  the location in which the fishing activities were carried out,

(d)  the fishing gear used in connection with the fishing activities,

(e)  any period in which the nominated fisher did not engage in any fishing activities on behalf of the fishing employer.

(3)  The record must be made in such form and manner as is prescribed by the regulations or (subject to the regulations) as is approved by the Minister.

(4)  A fishing employer who fails to make a record as required by this section is guilty of an offence.

Maximum penalty: In the case of a corporation, 500 penalty units or, in any other case, 200 penalty units.

(5)  A nominated fisher who engages in any fishing activity on behalf of a fishing employer must not fail to provide the fishing employer with such information concerning those activities as the fishing employer may reasonably require to comply with this section.

Maximum penalty: 200 penalty units.

(6)  A fishing employer who is required to make a record under this section must, if the regulations so require, ensure that a copy of the record is sent to the Director-General within such period as the regulations prescribe.

Maximum penalty: 10 penalty units.

(7)  In this section:

fishing employer means a shareholder in a share management fishery, an owner of a fishing business, or any other person, who nominates a commercial fisher to take fish in a fishery on behalf of the shareholder, owner or other person.

nominated fisher of a fishing employer means a commercial fisher who is for the time being nominated by the fishing employer under this Act or the regulations to take fish in a fishery on behalf of the fishing employer.

122A   Records to be made by fish receivers

(1)  A registered fish receiver must make such records as the regulations require relating to fish received by the fish receiver.

(2)  The record must be made in such form and manner as are prescribed by the regulations or (subject to the regulations) as are approved by the Minister.

(3)  A registered fish receiver who fails to make a record as required by this section is guilty of an offence.

Maximum penalty: In the case of a corporation, 500 penalty units or, in any other case, 200 penalty units.

(4)  A registered fish receiver who is required to make a record under this section must, if the regulations so require, ensure that a copy of the record is sent to the Director-General within such period as the regulations prescribe.

Maximum penalty: 10 penalty units.

123   Records to be made by sellers

(1)  A person who sells any fish must make and deliver to the purchaser, on or before the sale, a record concerning the sale by the person of the fish in accordance with the regulations.

Maximum penalty:

(a)  in the case of an individual:

(i)  200 penalty units for a first offence, or

(ii)  400 penalty units for a second or subsequent offence, or

(b)  in the case of a corporation:

(i)  1,000 penalty units for a first offence, or

(ii)  2,000 penalty units for a second or subsequent offence.

(2)  A person who sells any fish (the seller) must:

(a)  make, before the sale, or

(b)  obtain, on or before the sale, from any other person from whom the person acquired the fish,

      a record concerning the seller’s acquisition of the fish in accordance with the regulations.

Maximum penalty:

(a)  in the case of an individual:

(i)  200 penalty units for a first offence, or

(ii)  400 penalty units for a second or subsequent offence, or

(b)  in the case of a corporation:

(i)  1,000 penalty units for a first offence, or

(ii)  2,000 penalty units for a second or subsequent offence.

(3)  A person who is required to make or obtain a record under this section must:

(a)  retain a copy of the record for not less than 5 years after the fish are sold by the person, and

(b)  during that 5-year period, produce the copy of the record when requested to do so by a fisheries officer.

Maximum penalty:

(a)  in the case of an individual:

(i)  200 penalty units for a first offence, or

(ii)  400 penalty units for a second or subsequent offence, or

(b)  in the case of a corporation:

(i)  1,000 penalty units for a first offence, or

(ii)  2,000 penalty units for a second or subsequent offence.

(4)  An offence under this section applies whether or not the fish were sold to a purchaser within the State.

(5)  This section does not apply in respect of oysters.

(6)  The regulations may provide that this section does not apply in respect of the sale of fish:

(a)  if the fish are sold in circumstances specified in the regulations, or

(b)  if the quantity of fish sold does not exceed a quantity specified by the regulations in respect of the fish or class of fish concerned, or

(c)  in any other circumstances prescribed by the regulations.

123A   Records of possession of fish

(1)  A person in possession of fish must produce a prescribed record concerning the possession of the fish when requested to do so by a fisheries officer if:

(a)  the person is a fishing industry participant, or

(b)  the quantity of fish in the person’s possession is equal to, or more than, a commercial quantity of fish.

Maximum penalty:

(a)  in the case of an individual:

(i)  200 penalty units for a first offence, or

(ii)  400 penalty units for a second or subsequent offence, or

(b)  in the case of a corporation:

(i)  1,000 penalty units for a first offence, or

(ii)  2,000 penalty units for a second or subsequent offence.

(2)  It is a defence to a prosecution for an offence under this section in respect of a defendant who is not a fishing industry participant if the defendant proves that the fish were in the defendant’s possession otherwise than for the purpose of sale, transportation for reward or storage for reward.

(3)  It is a defence to a prosecution for an offence under this section in respect of a defendant who is a fishing industry participant if:

(a)  the defendant was in possession of less than a commercial quantity of fish, and

(b)  the defendant proves that the fish were in the defendant’s possession otherwise than for the purpose of sale, transportation for reward or storage for reward.

(4)  An offence under this section applies whether or not the fish were taken from waters to which this Act applies.

(5)  This section does not apply:

(a)  to the possession of fish on any premises, or part of premises, occupied solely for residential purposes, or

(b)  to the possession of oysters.

(6)  The regulations may provide that this section does not apply in respect of the possession of fish:

(a)  if the fish are in possession in circumstances specified in the regulations, or

(b)  if the quantity of fish in possession does not exceed a quantity specified by the regulations in respect of the fish or class of fish concerned, or

(c)  in any other circumstances prescribed by the regulations.

(7)  In this section:

commercial quantity of fish means the quantity prescribed by the regulations as the commercial quantity for the species of fish, or class of fish, concerned.

fishing industry participant means:

(a)  the holder of a fishing authority (within the meaning of Part 9), or

(b)  a person who carries on the business of selling or processing fish or fish products.

124   False records

A person who makes an entry in a record, or copy, kept for the purposes of this Division knowing that the entry is false or misleading in a material particular is guilty of an offence.

Maximum penalty: 200 penalty units or imprisonment for 3 months, or both.

Division 6 Reviews by Administrative Decisions Tribunal

125   Definition of “relevant authority”

In this Division, relevant authority means:

(a)  a commercial fishing licence, or

(b)  an endorsement on a commercial fishing licence, or

(c)  a fishing boat licence, or

(d)  the registration of a member of the crew of a boat, or

(e)  a fish receiver’s registration.

126   Applications to Administrative Decisions Tribunal for reviews of certain decisions

(1)  A person who is dissatisfied with any of the following decisions under this Part may apply to the Administrative Decisions Tribunal for a review of the decision concerned:

(a)  the refusal to issue a relevant authority to the person or to renew the person’s relevant authority,

(b)  the imposition of conditions on the person’s relevant authority (otherwise than by regulation),

(c)  the suspension or cancellation of the person’s relevant authority.

(2)  For the purposes of this section, an application for the issue or renewal of a relevant authority is taken to have been refused if the authority is not issued or renewed within 60 days after the application was duly made.

127   (Repealed)

Part 4A Charter fishing management

127A   Meaning of charter fishing boat

(1)  For the purposes of this Part, a boat is a charter fishing boat if:

(a)  the boat is used for recreational fishing activities under an arrangement made with or on behalf of the persons using the boat, and

(b)  the boat is used for recreational fishing activities on a commercial basis, and

(c)  the boat is used for recreational fishing activities in any waters (whether or not within the limits of the State).

(2)  A boat is used for recreational fishing activities on a commercial basis if:

(a)  a payment or other consideration is required to be made or given by or on behalf of all or any of the persons using the boat for the right to fish from the boat or for any other activity or service (such as accommodation) provided in connection with the arrangement under which the boat is used, or

(b)  the boat is made available for recreational fishing activities by a commercial organisation and all or any of the persons using the boat for the recreational fishing activities are members of that commercial organisation, or

(c)  the boat is made available for recreational fishing activities under any other arrangement of a kind specified by the regulations to be a commercial charter fishing arrangement.

(3)  In this section, a commercial organisation means a club or other organisation that provides services (whether or not for profit) and that charges a fee for membership.

127B   Certain charter fishing boats to be licensed

(1)  The regulations may declare that all or any specified class of charter fishing boats are required to be licensed under this Part.

(2)  The master of a boat must not use the boat as a charter fishing boat if:

(a)  it is required by such a regulation to be licensed, and

(b)  the boat is not licensed under this Part.

Maximum penalty: 100 penalty units.

(3)  The owner of a boat must not permit the boat to be used as a charter fishing boat if:

(a)  it is required by such a regulation to be licensed, and

(b)  the boat is not licensed under this Part.

Maximum penalty: 100 penalty units.

(4)  The regulations may provide that a boat licensed under a law of the Commonwealth or of another State or a Territory as a charter fishing boat is taken to be licensed under this Part.

127C   Provisions relating to licensing of charter fishing boats

(1)  The owner of a boat (or a person authorised by the owner) may apply to the Minister for the issue of a licence for the boat under this Part.

(2)  An application is to be in the form approved by the Minister.

(3)  The Minister is required to issue a charter fishing boat licence if an application for the licence is duly made, unless the Minister is authorised by the regulations to refuse the application. Without limiting this subsection, the Minister may refuse the application because of any applicable restriction on charter fishing boats under a management plan prescribed by the regulations for the charter fishing industry.

(4)  A charter fishing boat licence:

(a)  is subject to such conditions as are prescribed by the regulations or specified in the licence, and

(b)  remains in force for such period as is specified in the licence, and

(c)  may be renewed from time to time in accordance with the regulations, and

(d)  may be cancelled or suspended by the Minister in the circumstances authorised by the regulations.

(5)  The regulations may prescribe different classes of charter fishing boat licences.

(6)  The Minister may, at any time, by notice in writing to the holder of a charter fishing boat licence, revoke or vary the conditions of the licence or add new conditions. This subsection does not apply to conditions prescribed by the regulations.

(7)  The holder of a charter fishing boat licence who contravenes any condition of the licence is guilty of an offence.

Maximum penalty: 100 penalty units.

(8)  The regulations may make provision for or with respect to charter fishing boat licences. In particular, the regulations:

(a)  may make provision 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, and

(b)  may prescribe the fee or fees payable in respect of an application for the issue of a licence or the renewal of a licence.

127D   Annual contribution to industry costs

(1)  The holder of a charter fishing boat licence must, if the regulations so require, pay to the Minister an annual contribution towards one or more of the following:

(a)  the costs of taking measures to enhance, maintain or protect charter fishing,

(b)  the costs of carrying out research into charter boat fishing,

(c)  the costs of management and administration of charter fishing boat operations,

(d)  the costs of ensuring compliance with charter fishing boat regulatory controls,

(e)  the costs of consultative arrangements with owners and operators of charter fishing boats.

(2)  The amount of the contribution is to be specified in or determined under the regulations.

(3)  The regulations may provide for payment of the annual contribution by instalments.

(4)  If a contribution, or instalment of a contribution, is unpaid after the due date for its payment, the Minister may charge interest on the overdue amount at the rate payable from time to time in respect of judgments of the Supreme Court or, if some other rate is prescribed by the regulations, that rate.

(5)  Interest may be charged for each day that has elapsed between the date on which payment is due and the date of payment.

(6)  Interest charged on an overdue annual contribution, or instalment of a contribution, under subsection (4) is taken to be part of the contribution.

(7)  The payment required under this section is taken to be a condition of every charter fishing boat licence.

127E   Charter fishing boat operators to make records of fishing activities

(1)  The master of a charter fishing boat must make such records as the regulations require in respect of the use of the boat for recreational fishing activities (regardless of whether those fishing activities are activities for which it is required to be licensed).

(2)  In particular, the regulations may require the master of a charter fishing boat to make a record of the following:

(a)  particulars of all recreational fishing activities engaged in (including those where no fish were taken),

(b)  particulars of all fish taken during the fishing activities,

(c)  the location in which the fishing activities were carried out,

(d)  the fishing gear used in connection with the fishing activities,

(e)  any period in which the charter fishing boat was not used for recreational fishing activities for which it is required to be licensed.

(3)  A record required under this section must be made in such form and manner as is prescribed by the regulations or (subject to the regulations) as is approved by the Minister.

(4)  A master of a charter fishing boat who fails to make a record as required by this section is guilty of an offence.

Maximum penalty: 200 penalty units.

(5)  A master of a charter fishing boat who is required to make a record under this section must, if the regulations so require, ensure that a copy of the record is sent to the Director-General within such period as the regulations prescribe.

Maximum penalty: 10 penalty units.

127EA   Records of recreational fishing activities—licence holders

(1)  The holder of a charter fishing boat licence must make such records as the regulations require in respect of the use of the licensed charter fishing boat for recreational fishing activities (whether or not those activities are activities for which it is required to be licensed).

(2)  In particular, the regulations may require the licence holder to make a record of the following:

(a)  particulars of all recreational fishing activities engaged in (including those where no fish were taken),

(b)  particulars of all fish taken during the fishing activities,

(c)  the location in which the fishing activities were carried out,

(d)  the fishing gear used in connection with the fishing activities,

(e)  any period in which the charter fishing boat was not used for recreational fishing activities for which it is required to be licensed.

(3)  The record must be made in such form and manner as are prescribed by the regulations or (subject to the regulations) as are approved by the Minister.

(4)  The holder of a charter fishing boat licence who fails to make a record as required by this section is guilty of an offence.

Maximum penalty: In the case of a corporation, 500 penalty units or, in any other case, 200 penalty units.

(5)  The master of a boat that is a licensed charter fishing boat must not fail to provide the holder of the licence for the boat with such information concerning the use of the boat for recreational fishing activities as the licence holder may reasonably require to comply with this section.

Maximum penalty: 200 penalty units.

(6)  The holder of a charter fishing boat licence who is required to make a record under this section must, if the regulations so require, ensure that a copy of the record is sent to the Director-General within such period as the regulations prescribe.

Maximum penalty: 10 penalty units.

(7)  If the holder of a charter fishing boat licence is also master of the boat, the holder of the licence is taken to have complied with this section if the holder complies with his or her obligations under section 127E.

127EB   False records

A person who makes an entry in a record, or copy, for the purposes of this Part knowing that the entry is false or misleading in a material particular is guilty of an offence.

Maximum penalty: 200 penalty units or imprisonment for 3 months, or both.

127F   Appeal rights

Division 6 of Part 4 applies to a charter fishing boat licence as if the licence were a relevant authority for the purposes of that Division.

Part 5 Co-operation with Commonwealth and other States in fisheries management

Division 1 Preliminary

128   Definitions

In this Part:

arrangement means an arrangement made by the State with the Commonwealth under Division 3, whether or not it is also made with another State or other States and, if the arrangement is varied, means the arrangement as varied.

coastal waters, in relation to the State, has the same meaning as it has in the Commonwealth Act.

Commonwealth Minister means the Minister for the time being administering the Commonwealth Act and any other Minister performing and exercising functions and powers under section 60 of the Commonwealth Act.

fishery, in relation to an arrangement under this Part, means a class of fishing activities identified in the arrangement as a fishery to which the arrangement applies.

Joint Authority means a Joint Authority established under section 61 of the Commonwealth Act of which the Minister is a member.

Joint Authority fishery means a fishery in respect of which there is in force an arrangement under Division 3 under which the fishery is to be under the management of a Joint Authority.

this Act includes Division 5 of Part 5 of the Environmental Planning and Assessment Act 1979.

Division 2 Joint Authorities

129   Powers and functions of Minister

(1)  The Minister may exercise and perform any power or function conferred on the Minister by Part 5 of the Commonwealth Act, including any power or function of the Minister as a member of a Joint Authority.

(2)  If, in the exercise of the power conferred by Part 5 of the Commonwealth Act, the Minister appoints a deputy, the deputy may exercise and perform the powers and functions conferred by that Act on the deputy of a member of a Joint Authority other than the Commonwealth Minister.

130   Judicial notice

All courts and persons acting judicially are to take judicial notice of the signature of a person who is or has been a member of a Joint Authority or a deputy of a member of a Joint Authority and of the fact that the person is, or was at a particular time, such a member or deputy.

131   Functions of Joint Authority

A Joint Authority has such functions in relation to a fishery in respect of which an arrangement is in force under Division 3 as are conferred on it by the law in accordance with which, under the arrangement, the fishery is to be managed.

132   Delegation

(1)  A Joint Authority may, by instrument in writing, either generally or as otherwise provided by the instrument, delegate to a person any of its powers under this Act other than this power of delegation.

(2)  If a power delegated under subsection (1) is exercised by the delegate, the power is, for the purposes of this Act, taken to have been exercised by the Joint Authority.

(3)  A delegation under this section may be expressed as a delegation to the person from time to time holding or performing the duties of a specified office, including an office:

(a)  in the service of, or

(b)  in the service of an authority of, or

(c)  under the law of,

      the Commonwealth, another State or a Territory of the Commonwealth.

(4)  A delegate of a Joint Authority is, in the exercise of the delegated powers, subject to the directions of the Joint Authority.

(5)  A delegation of a power under this section:

(a)  may be revoked, by instrument in writing, by the Joint Authority (whether or not constituted by the persons constituting the Joint Authority at the time the power was delegated), and

(b)  does not prevent the exercise of the power by the Joint Authority, and

(c)  continues in force despite any change in the membership of the Joint Authority.

(6)  A certificate signed by a member of a Joint Authority stating any matters with respect to a delegation under this section by the Joint Authority is evidence of that matter.

(7)  A document purporting to be a certificate referred to in subsection (6) is, unless the contrary is established, taken to be such a certificate and to have been duly given.

(8)  Nothing in this Part is intended to prevent the delegation by a Joint Authority, in accordance with the law of the Commonwealth, of powers conferred on the Joint Authority by that law.

133   Procedure of Joint Authorities

(1)  The provisions of sections 66–68 (inclusive) of the Commonwealth Act apply to and in relation to the performance by a Joint Authority of its functions under this Act.

(2)  A written record of a decision of a Joint Authority, if signed by the Commonwealth Minister, or that Minister’s deputy, who took part in or made the decision is evidence that the decision, as recorded, was duly made.

(3)  In proceedings in any court, an instrument or other document signed, on behalf of a Joint Authority, by a member of the Joint Authority is taken to have been duly executed by the Joint Authority and, unless the contrary is proved, is taken to be in accordance with a decision of the Joint Authority.

134   Report of Joint Authority

The Minister must cause a copy of a report of a Joint Authority prepared under section 70 of the Commonwealth Act to be laid before each House of Parliament as soon as practicable after the report is prepared.

Division 3 Arrangements with respect to the management of particular fisheries

135   Arrangement for management of certain fisheries

(1)  The State may, in accordance with section 74 of the Commonwealth Act, make an arrangement referred to in section 71 or 72 of that Act for the management of a particular fishery.

(2)  An arrangement may be varied or terminated as provided by the Commonwealth Act.

(3)  After an arrangement has been made or varied, but before the arrangement or variation takes effect, licences, endorsements and other instruments may be granted, issued, renewed, made or executed, and regulations may be made, for the purposes of the operation of this Act as affected by the arrangement or variation, as if the arrangement or variation had taken effect, but such a licence, endorsement, instrument or regulation does not have effect before the arrangement or variation takes effect.

(3A)  On the variation of an arrangement, licences, endorsements and other instruments granted, issued, renewed, made or executed, and regulations made, for the purpose of the operation of this Act as affected by the variation cease to have effect to the extent (if any) that they are inconsistent with the arrangement as varied.

(4)  On the termination of an arrangement, licences, endorsements and other instruments granted, issued, renewed, made or executed, and regulations made, for the purpose of the operation of this Act as affected by the arrangement cease to have effect.

(5)  After action for the purpose of the termination of an arrangement has been taken, but before the termination takes effect, licences, endorsements and other instruments may be granted, issued, renewed, made or executed, and regulations may be made, for the purposes of the operation of this Act as affected by the termination of the arrangement, as if the arrangement had been terminated, but such a licence, endorsement, instrument or regulation does not have effect before the termination of the arrangement takes effect.

136   Application of this Act to fisheries in accordance with arrangements

If there is in force an arrangement that provides that a particular fishery, or a part of a particular fishery, is to be managed in accordance with the law of the State, the provisions of this Act apply to and in relation to the fishery, or the part of the fishery, except that those provisions do not apply to or in relation to that fishery, or that part of the fishery, in respect of:

(a)  foreign boats or operations on or from foreign boats or persons on foreign boats, or

(b)  matters that occurred before the arrangement took effect.

137   Functions of Joint Authority

(1)  If, in respect of a fishery, there is in force an arrangement under which a Joint Authority has the management of the fishery and the fishery, or part of the fishery, is to be managed in accordance with the law of the State, the Joint Authority has the functions of keeping constantly under consideration:

(a)  the condition of the fishery, and

(b)  formulating policies and plans for the good management of the fishery, and

(c)  for the purposes of the management of the fishery, exercising the powers conferred on it by this Act and co-operating and consulting with other authorities (including other Joint Authorities within the meaning of the Commonwealth Act) in matters of common concern.

(2)  A Joint Authority has the following objectives in the performance of its functions under subsection (1):

(a)  ensuring, through proper conservation, preservation and fisheries management measures, that the living resources of the waters to which this Act applies are not endangered or overexploited, and

(b)  achieving the optimum utilisation and equitable distribution of those resources.

138   Joint Authority to exercise certain powers instead of Minister

(1)  Subject to this section, a licence or endorsement granted, issued, renewed or made under this Act otherwise than by virtue of this section does not authorise the doing of any act or thing in or in relation to a Joint Authority fishery.

(2)  In respect of a Joint Authority fishery that is to be managed in accordance with the law of the State, or part of which is to be managed in accordance with the law of the State, the powers conferred on the Minister or the Minister’s delegate by or under this Act (this Part excepted) or the regulations (including powers with respect to the issue, renewal, cancellation and suspension of licences) are exercisable by the Joint Authority to the exclusion of the Minister and the Minister’s delegate.

(3)  A licence granted under this Act by a Joint Authority is required to contain conditions and limitations that it does not apply in relation to a Joint Authority fishery, or Joint Authority fisheries, not managed by that Joint Authority.

(4)  A Joint Authority may endorse a licence under this Act (including such a licence granted by that Joint Authority or another Joint Authority) so as to extend the operation of the licence to matters to which the licensing powers of the Joint Authority under this Act are applicable and, if such an endorsement is made:

(a)  the endorsement ceases to have effect if the licence ceases to have effect, and

(b)  the Joint Authority may suspend or cancel the endorsement as if it were a licence granted by the Joint Authority.

(5)  Subject to section 141 (1) (b) and (c), if, at a time a fishery becomes a Joint Authority fishery, a regulation, notification or order under this Act would, but for this subsection, apply to the fishery, the regulation, notification or order, as the case may be, ceases so to apply.

(6)  This section does not empower a Joint Authority to grant, or to take other action in respect of, a licence in respect of a foreign boat or to endorse such a licence.

139   Application of certain provisions relating to offences

For the purposes of the prosecution of a person for an offence under this Act in respect of anything done to or in relation to fish to which a Joint Authority fishery relates or otherwise in relation to a Joint Authority fishery, a reference to an authority of a particular kind is to be read as a reference to such an authority granted, issued or renewed by the relevant Joint Authority.

140   Presumption relating to certain statements

A statement in an arrangement to the effect that specified waters:

(a)  in the case of an arrangement to which the Commonwealth and the State are the only parties—are waters adjacent to the State, and

(b)  in the case of any other arrangement—are waters adjacent to the States that are parties to the arrangement or are waters adjacent to a specified State or States,

is, for the purposes of this Act, to be conclusively presumed to be correct.

141   Regulations

(1)  If a Joint Authority is to manage a fishery, or a part of a fishery, in accordance with the law of the State, the Governor may, for the purpose of giving effect to a decision of the Joint Authority:

(a)  make regulations for the management of the fishery or the part of the fishery, or

(b)  make a regulation applying to the fishery or the part of the fishery a regulation made otherwise than pursuant to this section, or

(c)  amend a regulation made otherwise than pursuant to this section so that it is expressed to apply to the fishery or the part of the fishery, whether or not it also applies to any other fishery.

(2)  The power conferred on the Governor to make regulations otherwise than under subsection (1) does not extend to the making of a regulation of a kind referred to in subsection (1) (a) or (b) or the amendment of a regulation in the manner referred to in subsection (1) (c).

(3)  If a regulation affecting a fishery that is to be managed by a Joint Authority is expressed to be made under this section, it is to be conclusively presumed that it was made for the purpose of giving effect to a decision of the Joint Authority.

Division 4 State agreements

141A   Power to enter into agreements

(1)  The Minister may enter into an agreement with a Minister administering an Act of another State relating to fisheries, or with an authority of another State concerned in the administration of that Act, for the purpose of co-operation in carrying out the objects of this Act (whether in this State or in that other State).

(2)  In this section:

State includes a Territory.

141B   Functions under agreements

(1)  For the purposes of this Division, the Minister may exercise any function conferred on the Minister under the other Divisions of this Part as if the Commonwealth Act applied under this Division.

(2)  The other Divisions of this Part apply in respect of agreements under this Division, with such modifications as are prescribed by the regulations or as are necessary.

Part 6 Aquaculture management

Division 1 Preliminary

142   Definitions

In this Act:

aquaculture means:

(a)  cultivating fish or marine vegetation for the purposes of harvesting the fish or marine vegetation or their progeny with a view to sale, or

(b)  keeping fish or marine vegetation in a confined area for a commercial purpose (such as a fish-out pond),

but does not include:

(c)  keeping anything in a pet shop for sale or in an aquarium for exhibition (including an aquarium operated commercially), or

(d)  anything done for the purposes of maintaining a collection of fish or marine vegetation otherwise than for a commercial purpose, or

(e)  any other thing prescribed by the regulations.

development plan has the meaning given by section 143.

143   Aquaculture industry development plans

(1)  The Minister may, in accordance with this section, determine plans for the development of the commercial aquaculture industry (development plans).

(2)  A development plan may relate to any aspect of the commercial aquaculture industry, including aquaculture of a particular species of fish or marine vegetation or aquaculture in a particular area.

(3)  The Minister is to have regard to any relevant development plan in the exercise of the Minister’s functions under this Part.

(4)  A development plan may contain the following:

(a)  the objectives of the Minister in the administration of this Part or any provision of this Part,

(b)  the description of areas suitable for aquaculture and the type of aquaculture for which any such area is suitable,

(c)  suitable methods for undertaking aquaculture or any type of aquaculture,

(d)  suitable species of fish or marine vegetation for aquaculture in a particular area,

(e)  any other matter concerning aquaculture that the Minister considers appropriate.

(5)  A development plan must:

(a)  include performance indicators to monitor whether the objectives set out in the plan and ecologically sustainable development are being attained, and

(b)  specify at what point a review of the development plan is required when a performance indicator is not being satisfied.

(6)  The Minister may amend or replace a development plan.

(7)  A development plan (including any amendment or new plan) is to be published in the Gazette.

(8)  Before the Minister determines a development plan (including any amendment or new plan), the Minister is required to give the commercial aquaculture industry and the public an opportunity to make submissions on the proposed plan (or proposed amendment or new plan) and to take any submission that is duly made into account.

(9)  The exercise of a function under this Part is not invalid merely because it is inconsistent with a development plan.

Division 2 Aquaculture permits

144   Aquaculture prohibited except in accordance with a permit

(1)  A person must not undertake aquaculture except under the authority of an aquaculture permit.

Maximum penalty: In the case of a corporation, 200 penalty units or, in any other case, 100 penalty units.

(2)  Aquaculture permits may be of such different classes as are prescribed by the regulations.

(3)  This section applies to aquaculture undertaken in a leased area or in any other area.

(4)  However, this section does not apply:

(a)  to aquaculture undertaken by the Minister under a development plan or under Part 8, or otherwise for the purposes of the administration of this Act, or

(b)  to persons of a class excluded by the regulations from the operation of this section.

145   Applications for permits

(1)  Any person may apply to the Minister for an aquaculture permit.

(2)  An application for a permit must:

(a)  be in a form approved by the Minister, and

(b)  be accompanied by a commercial farm development plan describing the manner in which the applicant proposes to undertake the aquaculture, and

(c)  be accompanied by the fee prescribed by the regulations.

(3)  If different classes of aquaculture permits have been prescribed, the application must specify the class or classes of permits for which application is made.

(4)  The Minister may require an applicant to provide such further information in relation to the application as the Minister thinks necessary and may decline to deal further with the application if such a requirement is not complied with.

146   Issue or refusal of permit

(1)  The Minister may issue or refuse to issue an aquaculture permit to an applicant for the permit.

(1A)  The issue of an aquaculture permit in relation to integrated development within the meaning of section 91 of the Environmental Planning and Assessment Act 1979 is subject to Division 5 of Part 4 of that Act.

(2)  The Minister may only refuse to issue the permit if:

(a)  the application was not duly made, or

(b)  in the case of an individual—the applicant is disqualified under section 161 from holding an aquaculture permit, or

(c)  in the case of a corporation—the applicant or any of the directors or other persons concerned in the management of the corporation is disqualified under section 161 from holding an aquaculture permit, or

(d)  the Minister is not satisfied that the applicant has prepared an appropriate commercial farm development plan, or

(e)  the Minister is not satisfied that the applicant has the expertise necessary to undertake the aquaculture successfully, or

(f)  the area where the applicant proposes to undertake aquaculture is not available or suitable for that purpose, or

(g)  the application is inconsistent with any relevant aquaculture industry development plan, or

(h)  the Minister is otherwise authorised or required by the regulations, or by this or any other Act, to refuse to issue the permit.

(3)  Before refusing to issue a permit under this section, the Minister is required to give the applicant an opportunity to be heard on the matter or to make written submissions on the matter.

(4)  An applicant may apply to the Administrative Decisions Tribunal for a review of a refusal of the Minister to issue a permit under this section.

147   Permit to specify area and type of aquaculture

(1)  An aquaculture permit must specify the area or areas within which the holder is authorised to undertake aquaculture and the type of aquaculture authorised to be undertaken within any such area.

(2)  The aquaculture permit may specify separate leased or other areas, whether or not they are adjoining.

(3)  The aquaculture permit may specify the type of aquaculture authorised by the permit by specifying all or any of the following:

(a)  the species of fish or marine vegetation that may be cultivated or kept (including any hybrid or polyploid form of species),

(b)  the things that may be cultivated from fish or marine vegetation kept under the permit,

(c)  the part of the life cycle of a species during which the species may be cultivated or kept.

148   Variation of permits

(1)  The Minister may, at any time by notice in writing to the holder of an aquaculture permit:

(a)  vary the area or areas within which the holder is authorised to undertake aquaculture, or

(b)  vary the type of aquaculture that may be undertaken within any such area.

This subsection applies whether or not the variation has been requested by the permit holder.

(2)  The Minister must not, at the request of a permit holder, vary the area or areas within which the holder is authorised to undertake aquaculture if the Minister would have refused under section 146 (2) an application for an aquaculture permit in relation to the area or areas (as proposed to be varied).

Note. This section will enable a single permit to be issued in respect of all the leased areas held by the permit holder.

149   Authority to take fish

(1)  The holder of an aquaculture permit is not required to hold a commercial fishing licence or any other licence or permit under this Act for the purpose of taking fish or marine vegetation cultivated or kept under the authority of the aquaculture permit.

(2)  The holder of the aquaculture permit may use any fishing gear for the purpose of taking any fish or marine vegetation cultivated or kept under the authority of the aquaculture permit, whether or not the fishing gear may lawfully be used for that purpose.

(3)  This section is subject to the other provisions of this Part and the conditions of the aquaculture permit.

150   Inconsistency with lease

An aquaculture lease or a provision of an aquaculture lease does not authorise anything to be done which is contrary to this Division or the terms or conditions of an aquaculture permit relating to the leased area.

151   Duration of permits

(1)  An aquaculture permit remains in force, unless otherwise provided in the permit, until it is cancelled or replaced with another permit under this Part.

(2)  The permit does not have effect while it is suspended under this Part.

152   Conditions of permits

(1)  An aquaculture permit is subject to:

(a)  such conditions as are prescribed by the regulations, and

(b)  such conditions as are specified in the permit or as the Minister notifies to the permit holder while the permit is in force.

(2)  Without limiting subsection (1), conditions may include:

(a)  conditions regulating the type of aquaculture that may be undertaken under the authority of the permit, and

(b)  conditions relating to the erection of structures on the area to which the permit relates, and

(c)  conditions relating to the escape of fish, effluent or any other thing from the area to which the permit relates, and

(d)  conditions requiring the permit holder to enter into a bond or guarantee or other financial arrangement for the due performance of the holder’s obligations under this Act (including for the destruction of noxious fish and the restoration of, or removal of material from, the area in which the aquaculture has been undertaken), and

(e)  conditions requiring the permit holder to maintain public liability insurance and to indemnify the State and its agents in connection with the undertaking of the aquaculture, and

(f)  conditions relating to the review of the commercial farm development plan of the permit holder.

(3)  The holder of an aquaculture permit is guilty of an offence if, without lawful excuse, a condition of the permit is contravened.

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

(4)  The Minister may, at any time by notice in writing to the holder of the permit, revoke or vary the conditions of an aquaculture permit (other than conditions prescribed by the regulations).

(5)  The regulations may make provision for or with respect to bonds, guarantees and other financial arrangements entered into under a condition of an aquaculture permit.

153   Holder of permit to provide information to the Minister

(1)  The Minister may, by notice in writing served on the holder of an aquaculture permit, require the holder to give to the Minister any specified written information in connection with aquaculture under the permit.

(2)  The regulations and the conditions of an aquaculture permit may also require the holder of an aquaculture permit to give the Minister periodic or other information in connection with aquaculture under the permit.

(3)  It is a condition of every aquaculture permit that the holder complies with a requirement in a notice or regulation under this section.

154   Register of permits

(1)  The Minister is required to keep a register of aquaculture permits for the purposes of this Part.

(2)  The Minister is required to enter in the register, in relation to each permit:

(a)  the name and business address of the permit holder, and

(b)  the date on which the permit was issued, and

(c)  the class or classes (if any) of the permit, and

(d)  the address or description of the area to which the permit applies, and

(e)  the type of aquaculture authorised by the permit within any such area, and

(f)  the conditions of the permit imposed by the Minister, and

(g)  particulars of any suspension or cancellation of the permit, and

(h)  any other matters prescribed by the regulations or determined by the Minister.

(3)  Particulars may be entered in the register by including in the register a copy of an aquaculture permit and any document that imposes conditions on the permit, or revokes or varies conditions of the permit, after the permit is issued.

(4)  The register may be kept wholly or partly by means of a computer.

(5)  Any person who attends the place where the register is kept during ordinary business hours is entitled to inspect the register.

(6)  If the register is kept wholly or partly by means of a computer, this section is taken to be complied with by providing a computer print-out or providing access to a computer terminal that can be used to view the register.

155   Change in particulars to be notified

The holder of an aquaculture permit must, within 28 days after there is a change in the business address of the permit holder, any director of the body corporate (if the holder is a body corporate) or any other matter prescribed by the regulations, give the Minister particulars in writing of that change.

Maximum penalty: 20 penalty units.

156   Annual contribution to cost of administration or research or to other industry costs

(1)  A permit holder must, if the regulations so require, pay to the Minister an annual contribution towards any of the following costs:

(a)  the cost of administration of this Part, being a cost that is identified in the regulations as a cost directly attributable to industry,

(b)  the cost of monitoring the quality of the environment in which aquaculture is undertaken and of testing the quality of the fish or marine vegetation cultivated or kept,

(c)  the cost of carrying out research into aquaculture,

(d)  any other costs relating to the aquaculture industry.

(2)  The amount of the contribution is to be specified in or determined by the regulations. The regulations may provide for the contribution to be based on the size of the area available for aquaculture or on any other basis and for the payment of the contribution by instalments or otherwise.

(3)  The payment required by this section is taken to be a condition of every aquaculture permit.

(4)  A contribution payable under this section is in addition to any rental payable by the permit holder for an aquaculture lease.

(5)  A contribution is payable under this section even if the aquaculture permit is suspended.

(6)  The Minister is to appoint a committee of persons to advise the Minister about the level of services provided to the aquaculture industry for the purposes referred to in subsection (1) (a) and about the amount of contributions for the costs of administration directly attributable to the aquaculture industry. The Minister is to ensure that a majority of the members of such a committee are relevant representatives of the aquaculture industry.

157   Annual contributions to be held in trust accounts

(1)  The Minister is to establish and operate trust accounts for annual contributions made by permit holders (except those referred to in section 156 (1) (a)).

(2)  The Minister may establish separate trust accounts for the different purposes for which the contributions are made.

(3)  Money in a trust account is, subject to the regulations, to be used only for the purpose for which the relevant contributions were made.

(4)  The Minister is to appoint a committee of persons to advise the Minister on the amount of contributions payable into any trust account and the expenditure of money in the trust account.

(5)  The Minister must not approve of any expenditure from a trust account without the concurrence of the committee appointed in respect of the account.

(6)  A single committee may be appointed in respect of 2 or more trust accounts.

(7)  The Minister is to ensure that a majority of the members of each committee are representatives of the aquaculture industry.

(8)  A committee is not subject to the control and direction of the Minister. However, the Minister may require a committee to reconsider any decision made by it.

(9)  The Minister may remove any member or all members of a committee from office.

(10)  The regulations may make provision for or with respect to:

(a)  the establishment and operation of trust accounts under this section, and

(b)  the establishment, membership and procedure of committees under this section.

157A   Minister may appoint advisory council as committee

(1)  The Minister may, if the Minister considers it appropriate to do so, appoint any advisory council established under section 229 for the aquaculture sector of the fishing industry as either or both of the following:

(a)  the committee required to be appointed under section 156 (6),

(b)  the committee required to be appointed under section 157 (4).

(2)  An advisory council may be so appointed only if its membership meets the requirement of section 156 (6) or 157 (7), as the case may be, with respect to the majority of members of the committee.

158   Overdue contribution

(1)  If an annual contribution by a permit holder is unpaid after the due date for its payment, the Minister may charge interest on the overdue amount at the rate payable from time to time in respect of judgments of the Supreme Court or, if some other rate is prescribed by the regulations, at that rate.

(2)  Interest may be charged for each day that has elapsed between the date on which payment is due and the date of payment.

(3)  Interest charged on an overdue annual contribution under this section is taken to be part of the contribution.

159   Power to cancel or suspend a permit without a hearing

The Minister may cancel or suspend an aquaculture permit if the holder of the permit:

(a)  dies or otherwise ceases to exist, or

(b)  asks the Minister to cancel or suspend the permit.

160   Power to cancel or suspend a permit after a hearing

(1)  The Minister may, by notice in writing to the holder of an aquaculture permit, cancel or suspend the permit if:

(a)  the application for the permit was false or misleading in a material particular, or

(b)  the permit holder has contravened this Part or the regulations under this Part, or

(c)  the permit holder has contravened Division 6 of Part 7 (Noxious fish) in the area to which the permit relates, or

(d)  the permit holder has contravened a condition of the permit, or

(e)  the permit holder has been convicted of stealing fish or marine vegetation, or

(f)  the permit holder is not undertaking aquaculture in accordance with the holder’s current commercial farm development plan, or

(g)  the area to which the permit relates has been varied since the issue of the permit and the Minister is satisfied that an application for an aquaculture permit would have been refused under section 146 (2) if made in relation to the area (as varied), or

(h)  in the case of a permit for an area subject to an aquaculture lease—the area is not being used for the purposes for which the lease was granted, or

(i)  in the case of a permit for an area subject to an aquaculture lease—the area is being so mismanaged that the production of fish or marine vegetation in that area or any surrounding area has been prejudicially affected or that the suitability of that area or any surrounding area for aquaculture is threatened, or

(j)  the Minister is otherwise authorised by the regulations to cancel the permit.

(2)  Before cancelling or suspending a permit under this section, the Minister is required to give the permit holder an opportunity to be heard on the matter or to make written submissions on the matter.

(3)  The Minister may at any time, by notice in writing to the holder of the permit, revoke a suspension under this section.

(4)  Nothing in this section affects any powers of the Minister to cancel an aquaculture lease.

(5)  A permit holder may apply to the Administrative Decisions Tribunal for a review of the cancellation or suspension of the holder’s permit under this section.

161   Power to declare person to be a disqualified person for the purposes of this Part

(1)  If an aquaculture permit issued to a person who is not a corporation is cancelled otherwise than at the request of the permit holder or is suspended, the Minister may, by notice in writing, declare the person to be a disqualified person for the purposes of this Part.

(2)  If an aquaculture permit issued to a corporation is cancelled otherwise than at the request of the permit holder or is suspended, the Minister may, by notice in writing, also declare the corporation or any director or other person concerned in the management of the corporation to be a disqualified person for the purposes of this Part.

(3)  A notice under this section may declare a person to be a permanently disqualified person or to be a disqualified person for a specified period or until the happening of a specified contingency.

(4)  The Minister may, either on the application of the person concerned or on the Minister’s own initiative, vary or revoke a declaration under this section.

(5)  A notice under this section takes effect when it is served on the person to whom it relates.

(6)  Before making a declaration under this section, the Minister is required to give the person concerned an opportunity to be heard on the matter or to make written submissions on the matter.

(7)  The person concerned may appeal to the Administrative Decisions Tribunal for a review of a declaration under this section.

162   Permit area to be maintained in a tidy condition

(1)  It is a condition of an aquaculture permit that the area to which the permit applies is, if it is subject to an aquaculture lease, to be maintained in a tidy condition.

(2)  The Minister may, by notice in writing served on the holder of such a permit, require the holder, within the period specified in the notice:

(a)  to carry out such work (including the removal of posts or any other thing from the area concerned) as the Minister considers to be necessary to achieve compliance with the condition referred to in subsection (1), or

(b)  to remove from land (other than the area concerned) anything that has been left by the holder on that land or that has come from the area and become deposited on that land.

(3)  A permit holder who fails to comply with such a notice is taken to have contravened a condition of the permit.

(4)  If such a notice is not complied with, the Minister or an agent of the Minister may:

(a)  enter the area concerned and, with the owner’s consent, the land concerned, and

(b)  carry out such work as is necessary to achieve compliance with the requirements of the notice.

(5)  The Minister may sell or otherwise dispose of anything removed from the area concerned or the land concerned in accordance with subsection (4).

(6)  The proceeds of such a sale are to be applied towards the costs and expenses of:

(a)  the sale, and

(b)  the disposal of anything removed but not sold, and

(c)  the carrying out of the work.

If the proceeds of sale (and of any forfeited bond or other security) are insufficient to enable those costs and expenses to be recouped, the balance can be recovered as a debt by the Minister by proceedings brought in a court of competent jurisdiction.

(7)  Compensation is not payable to a permit holder in respect of anything done under this section.

Division 3 Leases of public water land for aquaculture

163   Grant of aquaculture lease

(1)  Subject to this Part, the Minister may, on application or by auction, public tender or ballot, lease an area of public water land for use for aquaculture.

(2)  A lease of an area may be of the whole area or may be limited to a stratum of the area.

(3)  A lease must specify the type of aquaculture authorised to be undertaken within the leased area. This subsection does not authorise the use of a lease without an aquaculture permit.

(4)  The regulations may prescribe or provide for the form of an aquaculture lease granted or renewed under this Part and may provide in the form for the inclusion of such additional covenants and conditions as the Minister may determine.

(5)  The term of any lease granted under this section must not exceed 15 years.

(6)  The Minister may lease land under this section by auction, public tender or ballot even though an application has been made for a lease of the land.

(7)  The Minister must not grant a lease on an application unless satisfied that:

(a)  the land to which the application relates is available for lease, and

(b)  the application is consistent with any relevant development plan.

(7A)  Before granting a lease on an application, the Minister must:

(a)  cause to be published in the Gazette and in a newspaper circulating in the area in which the land is situated, a notice of receipt of the application, specifying in the notice that written objections to the granting of the lease may be lodged with the Director-General before the expiration of a period specified in the notice, and

(b)  consider any objections to the granting of the lease that are lodged within the period specified in the notice for the making of written objections.

(7B)  The Minister is not required to comply with subsection (7A) if:

(a)  the area to which the application relates is the subject of a development plan and the type of aquaculture proposed is a type that the development plan provides is suitable in that area, or

(b)  the person to whom the lease is to be granted has obtained a development consent under Part 4 of the Environmental Planning and Assessment Act 1979, or approval under Part 3A or Part 5.1 of that Act, to carry out development on the proposed leased area for the purposes of the aquaculture concerned.

(8)  The regulations may make provision for or with respect to applications for aquaculture leases or to auctions, public tenders and ballots for aquaculture leases.

164   Rights conferred by lease

(1)  An aquaculture lease vests in the lessee, the lessee’s executors, administrators, and assigns:

(a)  the exclusive right during the currency of the lease to undertake the type of aquaculture specified in the lease, subject to the provisions of or made under this Act and the provisions of the lease, and

(b)  the ownership of all fish or marine vegetation specified in the lease that are within the leased area.

(2)  An aquaculture lease does not confer the right of exclusive possession of the leased area.

(3)  An aquaculture lease is subject to the public right of fishing and to any right recognised by the regulations, except as provided by subsection (1) and the other provisions of or made under this Act.

(4)  Nothing in this section authorises a person to interfere with or damage anything on the leased area.

165   Lease rentals

(1)  The Minister is required to determine the rental of an aquaculture lease granted or renewed under this Division on the basis of the area of the lease.

(2)  The Minister may redetermine the rental of an aquaculture lease at such periods, being not less than 1 year, as the Minister thinks fit.

(3)  The amount paid in connection with an auction or a public tender for an aquaculture lease does not constitute the rental payable for the lease.

(4)  The regulations may make provisions for or with respect to the rental for aquaculture leases.

(5)  In particular, the regulations may prescribe a minimum rental for an aquaculture lease, either in respect of leases generally or leases of a particular class.

166   Overdue rental

(1)  If the rental of an aquaculture lease is unpaid after the date on which payment was due, the Minister may charge interest on the overdue amount at the rate payable from time to time in respect of judgments of the Supreme Court or, if some other rate is prescribed by the regulations, at that rate.

(2)  Interest may be charged for each day that has elapsed between the date on which payment is due and the date of payment.

(3)  Interest charged on the overdue rental of an aquaculture lease under this section is taken to be part of the rental.

167   Renewal of lease

(1)  The Minister may, on application by the lessee, renew an aquaculture lease for a term not exceeding 15 years.

(2)  The Minister may renew the lease if satisfied the area should continue to be available for aquaculture.

(3)  However, a lessee is entitled to the renewal of the lease if it is the first renewal of the lease (under this Act or its predecessor) after the grant of the lease.

(4)  Subject to this Part, the covenants and conditions on which a renewal of an aquaculture lease may be granted under this section are the same as the covenants and conditions on which the Minister could, at the time of the renewal, grant such a lease.

(5)  The Minister is to notify a lessee, at least 90 days before the lease is due to expire, of the date of expiry. The Minister may accept an application for the renewal of a lease that is made after the date of expiry.

(6)  If an application is made for the renewal of an aquaculture lease and the renewal is not granted before the end of the lease:

(a)  the lease continues in force until the renewal is granted or refused, and

(b)  the renewal may be granted even though the lease would, but for this subsection, have come to an end.

(7)  The regulations may make provision for or with respect to applications for the renewal of aquaculture leases.

168   Preferential rights

(1)  If a lessee duly applies for a renewal of an aquaculture lease of an area, the lessee has a preferential right to a lease of the area, as against any applicant or other person.

(2)  Even though a former lessee has not duly applied for a renewal of an aquaculture lease of an area, the former lessee has a preferential right to such a lease of the area, as against any applicant or other person, if that lessee applies for an aquaculture lease of the area within 30 days after the end of the expired lease.

(3)  A preferential right does not arise under this section unless the Minister is satisfied the lessee or former lessee has substantially observed and performed the covenants and conditions of the lease and is satisfied the area should continue to be available for aquaculture.

(4)  Nothing in this section requires the Minister to grant or renew an aquaculture lease.

169   Survey of leased area

(1)  The Minister may require as a condition of granting or renewing a lease, or of granting consent to the surrender of a part of a lease, that the lessee have a survey of the area carried out to a standard approved by the Minister.

(2)  The Minister:

(a)  may, by notice in writing served on the lessee of a leased area, require the lessee to have a survey of the area carried out to a standard approved by the Minister within such period as may be specified in the notice, or

(b)  may, if the lessee fails to comply with the notice, arrange for a survey of the area to be carried out to such a standard at the lessee’s expense.

(3)  The lessee of a leased area or any other person must not obstruct a survey carried out for the purposes of subsection (2) (b).

Maximum penalty: 50 penalty units.

(4)  A failure to comply with a notice served under subsection (2) (a), or a contravention of subsection (3), is a breach of a condition of the aquaculture lease concerned.

(5)  The cost of carrying out a survey under subsection (2) (b) is to be regarded as an additional amount of rental payable by the lessee on demand by the Minister.

(6)  The Minister may enter into arrangements with representatives of the commercial aquaculture industry for the payment of the cost of carrying out surveys under this section by lessees or on their behalf.

170   Lessee may fence leased area in certain cases

(1)  The Minister may, on the application of the lessee of a leased area, authorise the lessee to erect a fence on the area subject to such conditions as may be specified in the authority.

(2)  The Minister must not authorise the erection of a fence unless the Minister has had regard to any interference to navigation that could be caused by the erection of the fence.

(3)  If a fence is erected on a leased area otherwise than in accordance with an authority granted under this section or a condition to which such an authority is subject is contravened, the lessee:

(a)  is taken to have contravened a condition of the lease, and

(b)  is guilty of an offence.

Maximum penalty: 50 penalty units.

(4)  If a fence is erected on a leased area otherwise than in accordance with an authority granted under this section or a condition to which such an authority is subject is contravened, the Minister or an agent of the Minister may:

(a)  enter the area, and

(b)  carry out such work as is necessary to remove the fence or to achieve compliance with the condition.

(5)  The Minister may sell or otherwise dispose of anything removed in accordance with subsection (4). The proceeds of such a sale are to be applied towards the costs and expenses of:

(a)  the sale, and

(b)  the disposal of anything removed but not sold, and

(c)  the carrying out of the work concerned.

If the proceeds of sale (and of any forfeited bond or other security) are insufficient to enable those costs and expenses to be recouped, the balance can be recovered as a debt by the Minister by proceedings brought in a court of competent jurisdiction.

(6)  Compensation is not payable to a lessee in respect of anything done under this section.

171   Improvements on an expired lease

(1)  All improvements on leased areas vest in the State when the term of the lease expires or is otherwise terminated under this Part.

(2)  The Minister may allow the former lessee to remove any such improvements.

(3)  The Minister may, within 1 year after the termination of a lease, require the former lessee to remove any such improvements within the period notified in writing to the former lessee. The former lessee is guilty of an offence if the former lessee fails, without reasonable excuse, to do so.

Maximum penalty: 100 penalty units.

(4)  If the former lessee fails to remove improvements in accordance with a notice under subsection (3), the Minister or an agent of the Minister may:

(a)  enter the area, and

(b)  carry out such work as is necessary to remove the improvements.

(5)  The Minister may sell or otherwise dispose of anything removed in accordance with subsection (4). The proceeds of such a sale are to be applied towards the costs and expenses of:

(a)  the sale, and

(b)  the disposal of anything removed but not sold, and

(c)  the carrying out of the work concerned.

If the proceeds of sale (and of any forfeited bond or other security) are insufficient to enable those costs and expenses to be recouped, the balance can be recovered as a debt by the Minister by proceedings brought in a court of competent jurisdiction.

(6)  A lessee who has applied for a renewal of the lease of a leased area cannot be required, as a condition of the granting of the renewal, to pay for any improvements to the area.

172   Subletting with Minister’s consent

(1)  The lessee of a leased area may sublet the area or a part of the area, but only with the consent in writing of the Minister.

(2)  The giving of such a consent may be made subject to the payment of such fee as may be prescribed by the regulations.

173   Transfer with Minister’s consent

(1)  The lessee of a leased area may transfer the lease, but only with the consent in writing of the Minister.

(2)  The giving of such a consent may be subject to conditions and to the payment of such fee as may be prescribed by the regulations.

174   Surrender of lease

(1)  The lessee of a leased area may, with the consent in writing of the Minister, surrender the lease or a part of the leased area to the Minister.

(2)  The giving of such a consent may be made subject to conditions and to the payment of such fee as may be prescribed by the regulations.

(3)  A surrender under this section does not operate to extinguish any debt to the Crown or Minister relating to the lease concerned, except to the extent the Minister directs.

(4)  On surrender of part of the leased area, the Minister may, with the agreement of the lessee, redetermine the rental of the lease.

175   Minister can determine access way

(1)  The lessee of a leased area, or the owner or occupier of any land adjoining the area, may apply in writing to the Minister for the determination of an access way over the area.

(2)  On receiving such an application, the Minister must either:

(a)  determine an access way over the area concerned, or

(b)  refuse the application.

Before determining an access way, the Minister must, in the case of an application made by the owner or occupier of adjoining land, serve on the lessee notice of the application.

(3)  In determining an access way, the Minister may:

(a)  specify what notice of the access way is to be given, and

(b)  impose such conditions on the lessee, and direct the lessee to carry out such work for facilitating access by such way, as the Minister considers reasonable.

(4)  The Minister may refuse an application by the owner or occupier of adjoining land unless satisfactory arrangements are made for the payment by the owner or occupier of the cost of the work required to be carried out for the access way, and of the cost of compensation for the withdrawal from the lease of land for the access way.

(5)  The Minister may determine an access way without an application, but only after giving notice to the lessee concerned.

(6)  The Minister may vary or rescind a determination, condition or direction made, imposed or given under this section.

(7)  A failure to comply with a condition imposed on, or a direction given to, a lessee under this section is taken to be a breach of a condition of the lease of the area to which the condition or direction relates.

(8)  The Minister may under section 176 withdraw from an aquaculture lease any part of the leased area determined under this section to be an access way.

(9)  An access way determined under this section affects land brought under the provisions of the Real Property Act 1900 only when the Registrar-General has made an appropriate recording in the folio for the land.

(10)  A public authority or trustees in which a leased area is vested may exercise the functions of the Minister under this section.

(11)  An access way determined under this section is not affected by any renewal or transfer of the lease.

176   Power to withdraw land from lease

(1)  The Minister may, by notice published in the Gazette, withdraw from an aquaculture lease any land (whether the whole or any part of the leased area) required for a public purpose.

(2)  A public purpose is any public purpose for which land may, under section 136 of the Crown Lands Act 1989, be withdrawn from a lease under that Act.

(3)  On publication of the notice, the lessee becomes entitled to compensation. The provisions of the Land Acquisition (Just Terms Compensation) Act 1991 relating to the payment of compensation for land acquired by compulsory process apply (with such modifications as are prescribed by the regulations) to the payment of compensation under this section.

(4)  Compensation under this section:

(a)  is payable from money to be provided by Parliament, or

(b)  if the area concerned is withdrawn at the request of a public authority—is payable by that public authority.

(5)  The Minister may, by notice published in the Gazette, revoke or modify a withdrawal under this section.

(6)  A withdrawal under this section does not operate to extinguish any debt to the Crown or Minister relating to the land withdrawn, except to the extent the Minister directs.

(7)  On withdrawal of land from a lease under this section, the Minister is to redetermine the rental of the lease in accordance with this Part.

(8)  A provision of this section does not apply to an aquaculture lease to the extent that it is inconsistent with a special condition of the lease relating to the withdrawal of land from the lease for a public purpose.

177   Power of Minister to cancel leases in certain cases

(1)  The Minister may, by notice served on the lessee under an aquaculture lease, call on the lessee to show cause why the lease should not be cancelled on any one or more of the following grounds:

(a)  the leased area is not being used for the purposes for which the lease was granted,

(b)  the leased area is so polluted that fish or marine vegetation on the area are unfit for human consumption and the pollution is likely to continue indefinitely,

(c)  the lessee has not paid any rental or other amount due under the lease,

(d)  the lessee is in breach of any other condition of the lease for which the lease authorises its cancellation under this section.

(2)  After 1 month from the date of service of the notice the Minister may, by notice published in the Gazette, cancel the lease.

(3)  Before cancelling a lease, the Minister must consider any representations made by the lessee.

(4)  A lessee may apply to the Administrative Decisions Tribunal for a review of the cancellation of the lease.

178   Areas of public water land may be excluded from leasing

(1)  The Minister may exclude any public water land from being leased under this Part.

(2)  The Minister is to publish details of any such excluded area in such manner as the Minister thinks fit.

179   Protection of leased areas

(1)  A person, other than the lessee or the lessee’s agents or employees, must not:

(a)  remove, or in any way injure or interfere with, any fish or marine vegetation cultivated or kept within the leased area or any thing used for the purpose of aquaculture on a leased area, without the consent of the lessee, or

(b)  deposit anything on a leased area or dredge or dig within a leased area, except in accordance with Division 3 of Part 7 or, if that Division does not apply, by direction or authority of the lessee or the Minister.

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

(2)  This section does not apply to the placing of any thing on a leased area for the purpose of navigation.

(3)  A person who is found guilty of an offence against this section is liable to compensate the lessee for all damage that the lessee has sustained as a result of the person’s unlawful act. The lessee may, by proceedings brought in a court of competent jurisdiction, recover as a debt the amount of that compensation.

(4)  If the Minister fails to authorise an act referred to in subsection (1) (b) at the request of a public authority or trustees in whom the land concerned is vested, the matter may be referred to the Premier for resolution by the Minister responsible for the authority or trustees.

180   Leased area under Real Property Act 1900

When the land comprised in an aquaculture lease has been brought under the provisions of the Real Property Act 1900, any dealing with the lease must be effected in accordance with that Act.

Division 4 Diseased fish and marine vegetation

181   Definitions

In this Division:

declared disease means a disease in respect of which this Division applies under section 182 or 182A.

disease means a disease (including a pest or parasite) that kills or causes illness in fish or marine vegetation (or a particular species of fish or marine vegetation) or that kills or causes illness in people who eat the infected fish or marine vegetation.

marine vegetation includes any species of aquatic plant prescribed by the regulations.

quarantine area means an area declared to be a quarantine area by an order in force under section 183 (Minister may declare quarantine area).

182   Declared diseases

(1)  Each disease specified in Schedule 6B is a disease in respect of which this Division applies.

(2)  The common name of a species specified in Part 2 of Schedule 6B is for information purposes only and does not limit a description of species in that Schedule.

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

182A   Urgent declarations by Minister

(1)  If the Minister considers that urgent action is required in respect of a particular disease, the Minister may, by notice published in a newspaper circulating generally in the State, or by radio or television broadcast, declare that disease to be a disease in respect of which this Division applies.

(2)  In such an urgent case, the Minister is to publish the declaration in the Gazette as soon as practicable after it is made.

(3)  A declaration made by the Minister under this section may provide that specified provisions of this Division do not apply in respect of the disease or apply only in the circumstances specified in the declaration.

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

183   Minister may declare quarantine area

(1)  The Minister may, by order, declare any area specified in the order to be a quarantine area because of the presence or suspected presence of a declared disease.

(2)  An area may be declared a quarantine area if:

(a)  it is subject to an aquaculture permit, or

(b)  it is an area of water, or

(c)  it is an area in the immediate vicinity of an area of water, or

(d)  it is a pet shop or an aquarium kept for commercial purposes.

(3)  An order declaring a quarantine area is to be published in the Gazette. The order is not required to be so published if served on the owner or occupier of the area concerned.

(4)  An order declaring a quarantine area may:

(a)  prohibit the taking of fish or marine vegetation or specified fish or marine vegetation in or from the quarantine area, and

(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

(b)  require a relevant person to take such action as is specified in the order or directed by a fisheries officer (including the destruction or treatment of fish or marine vegetation cultivated or located in the area), and

(c)  contain any other provisions authorised by the regulations.

If the order is not published in the Gazette, the provisions of the order apply only to the persons on whom the order is served.

(4A)  For the purposes of this section, a relevant person means:

(a)  the holder of an aquaculture permit in respect of a quarantine area or part of a quarantine area, or

(b)  the owner or occupier of any land or premises (including any boat) within a quarantine area.

(5)  A person who, without reasonable excuse, contravenes a provision of an order declaring a quarantine area is guilty of an offence.

Maximum penalty: In the case of a corporation, 1,000 penalty units or, in any other case, 500 penalty units.

(6)  If a relevant person fails to take any action required by an order declaring a quarantine area, a fisheries officer may enter the quarantine area and take the required action.

(6A)  Subsection (6) does not authorise a fisheries officer to enter any premises used for residential purposes.

(7)  If the fisheries officer takes such action:

(a)  the relevant person is not entitled to any compensation for any loss reasonably caused in taking that action, and

(b)  the Minister may recover from the relevant person the costs of taking that action as a debt in a court of competent jurisdiction.

184   Intentional or reckless communication of declared disease to live fish or marine vegetation

A person must not intentionally or recklessly communicate a declared disease to live fish or marine vegetation.

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

185   Sale of diseased fish or marine vegetation prohibited

A person must not sell any fish or marine vegetation (whether live or dead) if the person knows or has reason to suspect that it is, or is infected with, a declared disease.

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

186   Diseased fish or marine vegetation not to be deposited in New South Wales waters

A person must not deposit in any waters any fish or marine vegetation (whether live or dead) if the person knows or has reason to suspect that it is, or is infected with, a declared disease.

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

187   Regulations relating to diseased fish and marine vegetation

(1)  The regulations may make provision for or with respect to eliminating or preventing the spread of declared diseases.

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

(a)  the destruction or treatment of fish or marine vegetation that is, or is suspected of being, a declared disease or infected with a declared disease, and

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

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

187A   Exemptions

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

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

Division 5 Miscellaneous provisions

188   Minister may order restoration work to be carried out in relation to illegal operations on aquaculture farm

(1)  If a person, not being the holder of an aquaculture permit, erects structures or carries out other works on public water land for the purpose of aquaculture, the Minister may, by order in writing given to the person, require the person to remove the structures or carry out other remedial works within such period as is specified in the order.

(2)  If a person, being the holder of an aquaculture permit, erects structures or carries out other works in contravention of the conditions of the permit, the Minister may, by order in writing given to the person, require the person, within such period as is specified in the order:

(a)  to remove the structures from the area concerned, or

(b)  to relocate them within that area, or

(c)  to carry out other remedial works.

(3)  If a person fails to comply with an order given under this section, the Minister:

(a)  may cause the work specified in the order to be carried out, and

(b)  may, by proceedings brought in a court of competent jurisdiction, recover from the person as a debt the cost of carrying out the work.

(4)  The Minister may give an order under this section whether or not any person has been charged with or convicted of an offence in respect of the matter.

189   When aquaculture operations can be closed

(1)  The Minister may, by a fishing closure under Part 2, prohibit during a specified period the taking of fish or marine vegetation cultivated or kept under an aquaculture permit from the area to which the permit applies if satisfied:

(a)  that the area is in such a condition that the taking of fish or marine vegetation from the area ought to be suspended, or

(b)  that the fish or marine vegetation are, or are likely to be, unfit for human consumption.

(2)  Any such fishing closure does not prevent the taking of fish or marine vegetation for any purpose authorised by the regulations or the fishing closure.

(3)  This section does not limit the application of a fishing closure under Part 2 to the taking of fish or marine vegetation from an area subject to an aquaculture permit and to which the permit does not apply.

190   Special provisions relating to oysters on public water or other land

(1)  All oysters on public water land, or on any area from which the taking of oysters is prohibited under this Act, and all oysters taken from any such land or area without lawful authority, are the property of the Crown.

(2)  A person who, without lawful authority, takes oysters from any public water land is guilty of an offence.

Maximum penalty: 50 penalty units.

(3)  A person has lawful authority to take oysters from public water land for personal consumption. However, this subsection is subject to any other prohibition or restriction imposed by or under this Act on the taking of oysters.

191   Regulations

The regulations may make provision for or with respect to the following:

(a)  the cultivation of fish or marine vegetation or the keeping of fish or marine vegetation in a confined area (whether or not it constitutes aquaculture within the meaning of this Part),

(b)  the taking of oysters and other shellfish from public water land and the protection of any such oysters and other shellfish,

(c)  the gathering or collection of marine vegetation, including the prohibition of the gathering or collection of marine vegetation for commercial purposes except under the authority of a permit,

(d)  the tagging or other identification of fish or marine vegetation cultivated or kept under the authority of an aquaculture permit,

(e)  the marking of boundaries of areas used for aquaculture,

(f)  preventing holders of aquaculture leases from obstructing access to areas adjoining their leased area,

(g)  mortgages, charges and other interests with respect to aquaculture leases,

(h)  the consolidation of leased areas,

(i)  the protection of the interests of holders of aquaculture permits,

(j)  the method of determining priority among applications for aquaculture leases in cases not specifically provided for by this Part,

(k)  the fixing, levying and collection of rents, charges and fees for the purposes of this Part,

(l)  the contents and review of commercial farm development plans,

(m)  the method of determining whether or not aquaculture is undertaken or able to be undertaken on a commercial basis, for example by reference to production levels or the size of the area available for aquaculture,

(n)  any other matter relating to the management or development of aquaculture.

Part 7 Protection of aquatic habitats

Division 1 Habitat protection plans

192   Preparation of habitat protection plans

(1)  The Minister may, in accordance with this section, determine plans for the protection of any habitat of fish (habitat protection plans), whether the habitat is essential for the survival of the species or required to maintain harvestable populations of the species.

(1A)  Without limiting subsection (1), a habitat protection plan may be determined for the protection of critical habitat declared under Part 7A.

(2)  A habitat protection plan:

(a)  may relate to habitat that is essential for spawning, shelter or other reason, and

(b)  may apply generally or to particular areas or fish, and

(c)  is to describe the importance of particular habitat features to which it applies, and

(d)  may set out practical methods for the protection of any such habitat features, and

(e)  may contain any other matter concerning the protection of the habitat of fish that the Minister considers appropriate.

(3)  The Minister may amend or replace a habitat protection plan.

(4)  A habitat protection plan (including any amendment or new plan) is to be published in the Gazette.

(5)  Before the Minister determines a habitat protection plan (including any amendment or new plan), the Minister is required to give the public an opportunity to make submissions on the proposed plan (or proposed amendment or new plan) and to take any submission that is duly made into account.

193   Implementation of habitat protection plans

(1)  The Minister is to have regard to any relevant habitat protection plan in the exercise of the Minister’s functions under this Part.

(2)  Public authorities are to have regard to any habitat protection plan that is relevant to the exercise of their functions.

(3)  A public authority is to notify the Minister of any function it proposes to exercise that is inconsistent with a habitat protection plan. The Minister may refer any dispute to the Minister responsible for the public authority. If the dispute cannot be resolved by those Ministers, it is to be referred to the Premier for resolution.

(4)  Any such resolution of a dispute is to be given effect to despite anything to the contrary in this section.

(5)  The exercise of a function is not invalid merely because it is inconsistent with a habitat protection plan.

(6)  This section:

(a)  does not render the exercise of a function invalid merely because it is inconsistent with a habitat protection plan, and

(b)  does not require or authorise action that is inconsistent with any statutory or other legal obligation of a Minister or a public authority.

Division 2 Aquatic reserves

Subdivision 1 Declaration of aquatic reserves

194   Declaration of aquatic reserves

(1)  The Minister may, by notice published in the Gazette, declare an area specified in the notice to be an aquatic reserve.

(2)  The purpose of declaring an area to be an aquatic reserve is to conserve the biodiversity of fish and marine vegetation and, consistently with that purpose:

(a)  to protect fish habitat in the reserve, or

(b)  to provide for species management in the reserve, or

(c)  to protect threatened species, populations and ecological communities (within the meaning of Part 7A) in the reserve, or

(d)  to facilitate educational activities and scientific research.

(3)  Land that is the subject of an aquaculture lease may be declared to be an aquatic reserve. However, nothing in this Division prevents the lessee from undertaking aquaculture in accordance with this Act in the area concerned during the currency of the lease.

(4)  Land that is dedicated for a public purpose may be declared to be an aquatic reserve. However, nothing in this Division prevents the land from being used for the purpose for which it is dedicated or permits the land to be used contrary to the provisions of any Act or statutory instrument applying to the land.

195   Consent required for declarations

(1)  The Minister is required to obtain the appropriate consent before declaring an area to be an aquatic reserve.

(2)  The appropriate consent for an area (other than an area of public water land) is the consent of the owner of the land concerned.

(3)  The appropriate consent for an area of public water land is:

(a)  in the case of public water land that is within a dam or reservoir used primarily for domestic water supply or within an area designated by or under an Act as a catchment area in respect of such a dam or reservoir—the consent of:

(i)  the authority controlling the dam or reservoir, and

(ii)  the Ministers respectively administering the Public Health Act 1991 and the Public Works Act 1912, and

(b)  in the case of public water land that is Crown land—the consent of the Minister administering the Crown Lands Act 1989, and

(c)  in the case of public water land (other than that referred to in paragraph (a)) that is vested in a public authority or in trustees for a public purpose—the consent of that authority or those trustees.

(4)  This section does not apply:

(a)  to an area of water (other than freshwater) and the land submerged by that water below mean high water mark, or

(b)  to an area vested in the Minister, or

(c)  to an area subject to an aquaculture lease.

195A   Consent of owners

If an owner of land whose consent is required under section 195 to the declaration of an area as an aquatic reserve cannot, after diligent inquiry, be found or identified, the declaration may be made without the consent of that owner.

195B   Meaning of “diligent inquiry”

(1)  For the purposes of section 195A, diligent inquiry to identify a person is the taking of the following actions:

(a)  the searching of the following registers:

(i)  the Register kept under the Real Property Act 1900, and

(ii)  the General Register of Deeds kept under the Conveyancing Act 1919, and

(iii)  the National Native Title Register kept under the Native Title Act 1993 of the Commonwealth,

(b)  placing, on a board or other structure in a conspicuous place on the land concerned, a notice:

(i)  stating that it is intended to declare the land as part of an aquatic reserve, and

(ii)  inviting the owner of the land to contact the Minister at a specified address,

(c)  publishing a notice referred to in paragraph (b) in a newspaper circulating in the vicinity of the land concerned and in a newspaper circulating generally in New South Wales.

(2)  For the purposes of section 195A, a person who is a native title holder is taken to have been unable, after diligent inquiry, to be found or identified if:

(a)  notice of the proposed declaration is served by the Minister in accordance with section 288A, and

(b)  at the expiration of the period of 4 months commencing on service of the notice, the person is neither a registered native title claimant nor a registered native title body corporate in relation to the land concerned.

195C   Existing interests and changes in ownership

(1)  A declaration of an aquatic reserve in relation to an area is not affected by:

(a)  an existing interest in respect of land in the area, or

(b)  a change of ownership of land in the area.

(2)  Subject to this Act, a provision of this Act or the regulations has effect in relation to an area of an aquatic reserve despite any such existing interest or change of ownership, unless the provision otherwise specifies.

196   Revocation or variation of declaration

(1)  The Minister may, subject to this section, revoke or vary the declaration of an aquatic reserve by notice published in the Gazette.

(2)  Before a declaration is revoked or varied, the Minister must cause notice of the proposed revocation or variation to be tabled in both Houses of Parliament.

(3)  Either House of Parliament may pass a resolution disallowing the proposed revocation or variation at any time after notice of the proposal is tabled in that House, but only if notice of the resolution was given within 15 sitting days of that House after notice of the proposal was so tabled.

(4)  If notice of a resolution to disallow a proposed revocation or variation is duly given, the Minister may not revoke or vary the declaration unless the resolution is not passed or it is withdrawn or lapses.

(5)  The provisions of sections 195 to 195C apply to a variation of a declaration that adds an area to an aquatic reserve in the same way as those provisions apply to the declaration of an aquatic reserve.

197   Regulations relating to aquatic reserves

The regulations may:

(a)  prohibit or regulate the taking of fish or marine vegetation from aquatic reserves, and

(b)  provide for the management, protection and development of aquatic reserves, and

(c)  classify areas within an aquatic reserve for different uses (such as recreational uses or as a sanctuary).

197A   Management plans for aquatic reserves

(1)  The Minister may arrange for the preparation of a draft management plan for an aquatic reserve.

(2)  The management plan for an aquatic reserve may make provision for or with respect to the following:

(a)  the objectives of the aquatic reserve,

(b)  the regulation of activities in the aquatic reserve in order to achieve those objectives,

(c)  performance indicators to monitor whether the objectives of the reserve are being attained,

(d)  reviews of the management plan,

(e)  any other matter for or with respect to which regulations may be made under this Act in respect of an aquatic reserve.

(3)  The Minister is required to give the public an opportunity to make submissions on any proposed management plan (including any proposed amendment to the plan or new plan) and to take any submission that is duly made into account.

(4)  A management plan for an aquatic reserve (including any amendment or new plan):

(a)  is to be made by regulation, and

(b)  may create an offence punishable by a penalty not exceeding 1,000 penalty units.

(5)  The management plan commences when the regulation making the plan commences.

(6)  If a provision of a management plan for an aquatic reserve is inconsistent with any other regulation under this Act relating to aquatic reserves, the management plan prevails.

Subdivision 2 Development and activities within aquatic reserves

197B   Mining in aquatic reserve prohibited

(1)  It is unlawful to prospect or mine for minerals in an aquatic reserve, except as expressly auth