Fisheries (Abalone) Act 2005

i Fisheries (Abalone) Act 2005 Act No. 58/2005 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1. Purpose 1 2. Commencement 2 PART 2—ABALONE QUOTA 3 3. Amendment of section 4—Definitions 3 4. Amendment of section 10—Crown property 4 5. New section 59A inserted 4 59A. Registration of financial interests 4 6. Consequential amendment of section 64C 5 7. New Division 3A inserted in Part 4 6 Division 3A—Abalone Quota 6 66B. Existing quota orders 6 66C. Initial abalone quota order 6 66D. Further abalone quota order 7 66E. Sub-zone abalone orders 8 66F. General abalone quota order provisions 9 66G. Abalone Fishery Access Licence specification 9 66H. Abalone quota unit holding statement 10 66I. Entitlement of holder of an individual abalone quota unit 10 66J. Notification by holder of an individual abalone quota unit 10 66K. Transfer of individual abalone quota units 11 66L. Minister may determine that quota units be publicly sold 12 66M. Offences in relation to individual abalone quota by holders of Abalone Fishery Access Licences 13 66N. Offences in relation to abalone sub-zones 15 66O. Requirement on holder of an Abalone Fishery Access Licence to hold minimum number of individual blacklip abalone quota units 16 -- 1 of 25 -- Section Page ii 66P. Additional penalty on holder of an individual abalone quota unit in relation to an abalone offence 17 66Q. Penalty for failure to pay royalty or levy 17 66R. Forfeiture of individual abalone quota unit 18 8. Amendment of section 137—Reviewable decisions 19 9. Amendment of section 150—Royalties 19 10. Amendment of section 151—Levy 20 PART 3—OTHER AMENDMENTS 21 11. Amendment of section 51 21 12. Amendment of section 57 21 13. New section 57C inserted 21 57C. Transitional provision concerning certain licences not held by one person 21 ═══════════════ ENDNOTES 23 -- 2 of 25 -- 1 Fisheries (Abalone) Act 2005 † [Assented to 20 September 2005] The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY 1. Purpose The purpose of this Act is to amend the Fisheries Act 1995 to— (a) implement a new system in respect of the abalone fishery which provides for the separation of individual abalone quota units from Abalone Fishery Access Licences; Victoria No. 58 of 2005 -- 3 of 25 -- Part 1—Preliminary Fisheries (Abalone) Act 2005 Act No. 58/2005 2 (b) restrict the persons who can hold a Fish Receiver's Licence to an individual, a single corporation or a co-operative. 2. Commencement (1) This section and sections 1 and 11 come into operation on the day on which this Act receives the Royal Assent. (2) The remaining provisions of this Act come into operation on a day or days to be proclaimed. (3) If a provision referred to in sub-section (2) does not come into operation before 1 April 2006, it comes into operation on that day. __________________ s. 2 -- 4 of 25 -- Part 2—Abalone Quota Fisheries (Abalone) Act 2005 Act No. 58/2005 3 PART 2—ABALONE QUOTA 3. Amendment of section 4—Definitions (1) In section 4(1) of the Fisheries Act 1995 insert the following definitions— ' "blacklip abalone", in relation to abalone quota management, catch and size limits and closed seasons, means— (a) all species of abalone other than greenlip abalone; and (b) all other forms, races and hybrids of abalone; "greenlip abalone", in relation to abalone quota management, catch and size limits and closed seasons, means abalone of the species Haliotis laevigata;'. (2) In section 4(1) of the Fisheries Act 1995— (a) in the definition of "individual quota unit" for "section 64(1)(c)" substitute "section 64A(1)(b) or 66D(1)(b)"; (b) in the definition of "quota fishery" after "section 64(1)(a)" insert "or 66C(1)(a)"; (c) in the definition of "quota order" for "or section 64A" substitute ", 64A, 66C or 66D". s. 3 See: Act No. 92/1995. Reprint No. 4 as at 31 December 2004 and amending Act Nos 16/2004 (as amended by No. 69/2004), 69/2004 and 108/2004. LawToday: www.dms. dpc.vic. gov.au -- 5 of 25 -- Part 2—Abalone Quota Fisheries (Abalone) Act 2005 Act No. 58/2005 4 4. Amendment of section 10—Crown property After section 10(2)(a) of the Fisheries Act 1995 insert— "(aa) to the holder of the abalone quota unit when taken from Victorian waters in accordance with an Abalone Fishery Access Licence by the holder of the Abalone Fishery Access Licence under an individual abalone quota unit;". 5. New section 59A inserted After section 59 of the Fisheries Act 1995 insert— "59A. Registration of financial interests (1) This section applies if a person who is not the holder of a particular individual abalone quota unit has a financial interest in that individual abalone quota unit. (2) If immediately before the commencement of section 5 of the Fisheries (Abalone) Act 2005 a person is the holder of a registered financial interest in an Abalone Fishery Access Licence, the person is deemed to have a registered financial interest under this section in— (a) the individual blacklip abalone quota units; and (b) any individual greenlip abalone quota unit— initially allocated to the holder of that Abalone Fishery Access Licence by the initial quota order. s. 4 -- 6 of 25 -- Part 2—Abalone Quota Fisheries (Abalone) Act 2005 Act No. 58/2005 5 (3) The person to whom this section applies, and the holder of the individual blacklip abalone quota units or the holder of the individual greenlip abalone quota units, may register details of the financial interest with the Secretary in the form approved by the Secretary. (4) The Secretary must notify each holder of a registered financial interest of an application to transfer the individual blacklip abalone quota units or the individual greenlip abalone quota units within 21 days after receiving the application. (5) Each holder of a registered financial interest who receives the notice must, within 21 days of receiving the notice, advise the Secretary in writing of his or her approval or disapproval of the proposed transfer. (6) If all the holders of registered financial interests in the individual blacklip abalone quota units or the individual greenlip abalone quota units notified under sub-section (4) do not approve the proposed transfer, the Secretary must not transfer the individual blacklip abalone quota units or the individual greenlip abalone quota units. (7) If the holder of a registered financial interest notified under sub-section (4) does not comply with sub-section (5), the holder is deemed to have approved of the proposed transfer.". 6. Consequential amendment of section 64C In section 64C of the Fisheries Act 1995 for "or 64AB" substitute ", 64AB, 66C, 66D or 66E". s. 6 -- 7 of 25 -- Part 2—Abalone Quota Fisheries (Abalone) Act 2005 Act No. 58/2005 6 7. New Division 3A inserted in Part 4 After section 66A of the Fisheries Act 1995 insert— 'Division 3A—Abalone Quota 66B. Existing quota orders Any quota order or quota notice in respect of the abalone fishery in existence immediately before the commencement of section 7 of the Fisheries (Abalone) Act 2005 continues in operation until the beginning of the quota period established by the initial abalone quota order made under section 66C. 66C. Initial abalone quota order (1) The Minister may, by order published in the Government Gazette— (a) declare that the whole, or a specified zone or zones, of the abalone fishery is to be managed by the allocation of quotas; (b) determine the method for setting the number of individual quota units for the quota fishery; (c) set the number of individual blacklip abalone quota units and individual greenlip abalone quota units to be initially allocated for each Abalone Fishery Access Licence held by the holder of an Abalone Fishery Access Licence in respect of the quota fishery; s. 7 -- 8 of 25 -- Part 2—Abalone Quota Fisheries (Abalone) Act 2005 Act No. 58/2005 7 (d) set the minimum number of individual blacklip abalone quota units that must be held in respect of each Abalone Fishery Access Licence held by the holder of an Abalone Fishery Access Licence; (e) determine the circumstances, if any, in which the individual quotas can be exceeded or carried over. (2) The Minister may revoke or amend an order at any time by order published in the Government Gazette. (3) The Minister may only amend an order if the amendment is required— (a) to give effect to the management plan for the abalone quota fishery declared under section 28, or to any change to that plan; or (b) to correct— (i) a clerical mistake; or (ii) an error arising from an accidental slip or omission; or (iii) a miscalculation of figures. 66D. Further abalone quota order (1) The Minister may, by further order published in the Government Gazette— (a) set the total allowable catch for blacklip abalone and greenlip abalone (by number, volume, weight or value) for a specified period for the abalone quota fishery; s. 7 -- 9 of 25 -- Part 2—Abalone Quota Fisheries (Abalone) Act 2005 Act No. 58/2005 8 (b) determine the quantity of fish (by number, volume, weight or value) comprising an individual blacklip abalone quota unit and an individual greenlip abalone quota unit in the abalone quota fishery in a specified period. (2) The Minister may revoke or amend an order at any time by an order published in the Government Gazette. (3) Without limiting the generality of sub- section (2), the Minister may reduce the total allowable catch, or reduce the quantity of fish comprising an individual abalone quota unit before the end of the period to which the total allowable catch or individual abalone quota unit applies. 66E. Sub-zone abalone orders (1) The Minister may, by further order published in the Government Gazette— (a) declare that the abalone quota fishery includes a sub-zone; and (b) set the portion of the total allowable catch that applies in respect of a specified sub-zone; and (c) determine the method for allocating that portion of the total allowable catch. (2) The Minister may revoke or amend an order under sub-section (1) at any time by an order published in the Government Gazette. s. 7 -- 10 of 25 -- Part 2—Abalone Quota Fisheries (Abalone) Act 2005 Act No. 58/2005 9 (3) The Secretary must give the holder of an Abalone Fishery Access Licence in the abalone quota fishery a sub-zone notice setting out details of the allocation of the portion of the total allowable catch in respect of the specified sub-zone that is applicable to the holder of the Abalone Fishery Access Licence as soon as is practicable after a sub- zone order under this section is published. 66F. General abalone quota order provisions (1) The Minister must not make, revoke or amend an order under section 66C, 66D or 66E unless he or she has consulted with the commercial peak body and any other relevant consultative bodies and has considered any comments made by those bodies concerning the proposed making, revoking or amending of the order. (2) An order has effect from the date it is published in the Government Gazette, or from any later date specified in the order as the date from which it is to have effect. 66G. Abalone Fishery Access Licence specification The Secretary must specify on each Abalone Fishery Access Licence details of the individual abalone quota units in respect of which the holder of the Abalone Fishery Access Licence is entitled to take abalone— (a) when the Abalone Fishery Access Licence is renewed or transferred; (b) after there is a change in the number of the individual abalone quota units in respect of which the holder of the Abalone Fishery Access Licence is entitled to take abalone. s. 7 -- 11 of 25 -- Part 2—Abalone Quota Fisheries (Abalone) Act 2005 Act No. 58/2005 10 66H. Abalone quota unit holding statement (1) The Secretary must issue an abalone quota unit holding statement in respect of the period specified in the further abalone quota order containing the prescribed information to a holder of an individual abalone quota unit— (a) after the payment of any royalty and levy payable in respect of the individual abalone quota unit; and (b) after there is a change in the number of the individual abalone quota units held by that holder. (2) A holder of an individual abalone quota unit may obtain a copy of the relevant abalone quota unit holding statement from the Secretary upon application to the Secretary and payment of the prescribed fee. 66I. Entitlement of holder of an individual abalone quota unit The holder of an individual abalone quota unit is not entitled to take or be in possession of a commercial quantity of abalone unless that person is otherwise authorised under this Act to take or be in possession of a commercial quantity of abalone. 66J. Notification by holder of an individual abalone quota unit (1) The holder of an individual abalone quota unit may in accordance with the prescribed process notify the Secretary of the holder of an Abalone Fishery Access Licence who is nominated to take abalone under the individual abalone quota unit. s. 7 -- 12 of 25 -- Part 2—Abalone Quota Fisheries (Abalone) Act 2005 Act No. 58/2005 11 (2) A notification under this section may nominate a different holder of an Abalone Fishery Access Licence for each individual abalone quota unit. (3) A notification under this section must contain the prescribed matters. 66K. Transfer of individual abalone quota units (1) A transfer of individual abalone quota units may only be made with the approval of the Secretary. (2) The holder of an individual abalone quota unit may apply to the Secretary for approval to transfer 1 or more individual abalone quota units to any other person. (3) A fraction of an individual abalone quota unit cannot be transferred. (4) The Secretary must not grant an application for approval to transfer any individual abalone quota unit to a person unless the Secretary is satisfied that— (a) the person is a fit and proper person to hold individual abalone quota units; and (b) the person is an individual, a single corporation or a co-operative and is not a partnership or a consortium; and (c) the person satisfies any relevant eligibility criteria specified in the regulations; and (d) the holders of any financial interests in the individual abalone quota unit consent to the transfer of the individual abalone quota unit. s. 7 -- 13 of 25 -- Part 2—Abalone Quota Fisheries (Abalone) Act 2005 Act No. 58/2005 12 (5) An application for the approval of a transfer must be made in the manner and form required by the Secretary. (6) The Secretary may grant an application if it is consistent with every quota order and management plan that applies to the abalone quota fishery. (7) The Secretary must refuse to grant an application that is inconsistent with any relevant provision of this Act. (8) Without limiting sub-section (7), the Secretary must refuse to grant an application for the approval of a transfer of an individual greenlip abalone quota unit if the total allowable catch for greenlip abalone is set at zero. (9) Sub-section (8) does not apply if the application for the approval of a transfer of an individual greenlip abalone quota unit is made with an application for the transfer of an Abalone Fishery Access Licence for the zone in respect of which the individual abalone quota unit applies. 66L. Minister may determine that quota units be publicly sold (1) This section applies if it is proposed— (a) to create new individual abalone quota units in addition to the individual abalone quota units that were allocated under an initial quota order in excess of any threshold quota limit specified in a management plan; or (b) to allocate individual abalone quota units that arise in excess of any threshold quota limit specified in a management plan; or s. 7 -- 14 of 25 -- Part 2—Abalone Quota Fisheries (Abalone) Act 2005 Act No. 58/2005 13 (c) to allocate any individual abalone quota units that have been forfeited, or that have otherwise become available. (2) The Minister may determine that the individual abalone quota units are to be publicly sold. (3) In making a determination, the Minister must specify the method by which the sale is to take place. (4) Without limiting sub-section (3), a sale may occur by auction, tender or ballot. 66M. Offences in relation to individual abalone quota by holders of Abalone Fishery Access Licences (1) During any specified quota period, the holder of an Abalone Fishery Access Licence or a person who is acting on behalf of a holder of an Abalone Fishery Access Licence in the relevant zone must not take any fish in excess of the specified amount. Penalty: (a) For a first offence, 50 penalty units and the forfeiture of whichever is the greater of 1 individual abalone quota unit or the number of individual abalone quota units equivalent to the quantity of excess fish taken. (b) For a second offence, 100 penalty units and the forfeiture of whichever is the greater of 3 individual abalone quota units or the number of individual abalone quota units equivalent to double the quantity of excess fish taken. s. 7 -- 15 of 25 -- Part 2—Abalone Quota Fisheries (Abalone) Act 2005 Act No. 58/2005 14 (c) For a third offence, 150 penalty units and the cancellation of any entitlement of the holder of the Abalone Fishery Access Licence to hold an individual abalone quota unit in the next full quota period after the conviction. (d) For a subsequent offence, 200 penalty units or 12 months imprisonment or both, and the cancellation of the Abalone Fishery Access Licence. (2) For the purposes of sub-section (1), "specified amount" means the amount of fish in kilograms permitted to be taken under the individual abalone quota units specified on the Abalone Fishery Access Licence. (3) For the purposes of paragraph (c) of the penalty at the foot of sub-section (1), a quota period is a full quota period even if it is shortened in any way by a quota order made during the quota period. (4) If the number of individual abalone quota units not yet taken by the holder in the quota period in which the conviction occurs is less than the number forfeited under paragraph (a) or (b) of the penalty at the foot of sub-section (1), the balance of the forfeited number of abalone quota units is forfeited in the next quota period. (5) For the purposes of sub-section (4), any differences in the quantity of fish that comprise an individual quota unit in different periods are to be disregarded. s. 7 -- 16 of 25 -- Part 2—Abalone Quota Fisheries (Abalone) Act 2005 Act No. 58/2005 15 (6) For the purposes of paragraphs (a) and (b) of the penalty at the foot of sub-section (1), if a quantity of fish does not equate exactly to a number of individual abalone quota units, the excess is deemed to be an individual abalone quota unit. (7) If a person who is acting on behalf of the holder of an Abalone Fishery Access Licence exceeds the specified amount for the Abalone Fishery Access Licence— (a) he or she is liable to the relevant fines or imprisonment specified in sub- section (1); and (b) the relevant forfeiture applies to the Abalone Fishery Access Licence. 66N. Offences in relation to abalone sub-zones (1) During any specified quota period, the holder of an Abalone Fishery Access Licence must not take any fish in excess of the fish specified in the abalone sub-zone notice given to the holder of the Abalone Fishery Access Licence. Penalty: (a) For a first offence, 50 penalty units. (b) For a subsequent offence, 100 penalty units or 6 months imprisonment or both, and the forfeiture of the number of individual abalone quota units equivalent to the quantity of excess fish taken. s. 7 -- 17 of 25 -- Part 2—Abalone Quota Fisheries (Abalone) Act 2005 Act No. 58/2005 16 (2) If a person who is acting on behalf of the holder of an Abalone Fishery Access Licence takes any fish in excess of the fish specified in the abalone sub-zone notice given to the holder of the Abalone Fishery Access Licence — (a) the person is liable to the relevant fines specified in sub-section (1); and (b) the relevant forfeiture applies to the Abalone Fishery Access Licence. 66O. Requirement on holder of an Abalone Fishery Access Licence to hold minimum number of individual blacklip abalone quota units (1) The holder of an Abalone Fishery Access Licence must ensure that the minimum number of individual blacklip abalone quota units required to be held by the initial abalone quota order is held by the holder for each Abalone Fishery Access Licence held by the holder. (2) If any of the minimum number of individual blacklip abalone quota units held by the holder of an Abalone Fishery Access Licence is forfeited, the Abalone Fishery Access Licence is by force of this section suspended until the holder of the Abalone Fishery Access Licence acquires the number of individual blacklip abalone quota units necessary to comply with sub-section (1). (3) If the holder of an Abalone Fishery Access Licence does not comply with sub-section (1) at the beginning of the next quota period, the Secretary must defer the renewal of the Abalone Fishery Access Licence in accordance with section 57. s. 7 -- 18 of 25 -- Part 2—Abalone Quota Fisheries (Abalone) Act 2005 Act No. 58/2005 17 66P. Additional penalty on holder of an individual abalone quota unit in relation to an abalone offence If a person who is the holder of an individual abalone quota unit is convicted or found guilty by a court of an offence under this Act relating to abalone, the court may, in addition to any other penalty that the court may impose for that offence, order the forfeiture of 1 or more individual abalone quota units held by that person. 66Q. Penalty for failure to pay royalty or levy (1) This section applies if the royalty or levy imposed in respect of an individual abalone quota unit has not been paid within 14 days of the date that the payment of the royalty or levy was due. (2) If this section applies, the Secretary may serve a written notice on the holder of the individual abalone quota unit specifying that the entitlement under the individual abalone quota unit is suspended until the relevant royalty or levy is paid. (3) A copy of a notice served under sub- section (2) must be sent to each holder of a registered financial interest in the individual abalone quota unit within 7 days of the notice being served under sub-section (2). (4) If the relevant royalty or levy has not been paid within 12 months of the notice being served under sub-section (2), the individual abalone quota unit is cancelled on the day after the end of the period of 12 months. s. 7 -- 19 of 25 -- Part 2—Abalone Quota Fisheries (Abalone) Act 2005 Act No. 58/2005 18 66R. Forfeiture of individual abalone quota unit (1) This section applies to an individual abalone quota unit that is forfeited by a court under this Division. (2) The Secretary must notify each holder of a registered financial interest in the individual abalone quota unit of the forfeiture. (3) For the purposes of this section, the forfeiture of the individual abalone quota unit is stayed and the individual abalone quota unit is deemed to have been suspended until whichever of the following first occurs— (a) an appeal against the forfeiture of the individual abalone quota unit is granted; or (b) if there is no appeal against the forfeiture of the individual abalone quota unit or the appeal is dismissed— (i) the holder of the individual abalone quota unit or the registered financial interest transfers the individual abalone quota unit to an eligible person in accordance with this Division; or (ii) the expiry of the period of 6 months after the date on which an appeal should have been lodged or was dismissed (as the case may be). s. 7 -- 20 of 25 -- Part 2—Abalone Quota Fisheries (Abalone) Act 2005 Act No. 58/2005 19 (4) If sub-section (3)(b) applies and the holder of the individual abalone quota unit fails to transfer the individual abalone quota unit in accordance with that sub-section, the individual abalone quota unit is cancelled as from the expiry of the period of 6 months specified in that sub-section. (5) If sub-section (3)(b) applies but sub- section (4) does not apply, the forfeiture of the individual abalone quota unit by the court is revoked on the transfer of the individual abalone quota unit to the eligible person.'. 8. Amendment of section 137—Reviewable decisions After section 137(ha) of the Fisheries Act 1995 insert— "(hb) to refuse approval of a transfer of individual abalone quota units under section 66K;". 9. Amendment of section 150—Royalties (1) After section 150(1) of the Fisheries Act 1995 insert— "(1A) A royalty may be imposed under this Act in respect of an individual abalone quota unit issued under this Act.". (2) After section 150(2)(a) of the Fisheries Act 1995 insert— "(aa) at a different rate in respect of specified classes of individual abalone quota units or in respect of specified classes of individual abalone quota units in relation to specified zones;". s. 8 -- 21 of 25 -- Part 2—Abalone Quota Fisheries (Abalone) Act 2005 Act No. 58/2005 20 10. Amendment of section 151—Levy (1) After section 151(1) of the Fisheries Act 1995 insert— "(1A) Subject to and in accordance with this section, there may be charged, levied and collected by the Secretary in respect of individual blacklip abalone quota units and individual greenlip abalone quota units prescribed levies at prescribed rates.". (2) After section 151(2)(d) of the Fisheries Act 1995 insert— "(da) in the case of an individual abalone quota unit— (i) as a fixed amount; or (ii) as a percentage of the royalty payable in respect of the individual abalone quota unit; or (iii) in relation to the number of individual abalone quota units held; or (iv) in relation to specified zones; or". __________________ s. 10 -- 22 of 25 -- Part 3—Other Amendments Fisheries (Abalone) Act 2005 Act No. 58/2005 21 PART 3—OTHER AMENDMENTS 11. Amendment of section 51 After section 51(3B) of the Fisheries Act 1995 insert— "(3C) Despite anything to the contrary in any law, the Secretary may only issue a Fish Receiver's Licence to an individual, a single corporation or a co-operative. (3D) The Secretary must refuse to issue a Fish Receiver's Licence to a partnership or a consortium.". 12. Amendment of section 57 At the end of section 57 of the Fisheries Act 1995 insert— "(13) Despite anything to the contrary in this section, the Secretary may not renew a Fish Receiver's Licence unless the person who is to hold the renewed licence is an individual, a single corporation or a co-operative.". 13. New section 57C inserted Before section 58 of the Fisheries Act 1995 insert— "57C. Transitional provision concerning certain licences not held by one person (1) If— (a) on the date of commencement of section 13 of the Fisheries (Abalone) Act 2005 a Fish Receiver's Licence is not held by an individual, a single corporation or a co-operative; and s. 11 -- 23 of 25 -- Part 3—Other Amendments Fisheries (Abalone) Act 2005 Act No. 58/2005 22 (b) by the date the licence is due to expire, an individual, a single corporation or a co-operative that holds the licence or that is a successor of a person who holds the licence, has not applied to the Secretary for the renewal of the licence in accordance with the regulations— the licence is, by force of this section, suspended on the date the licence is due to expire. (2) Despite anything in this Act to the contrary, a suspension under sub-section (1) continues until either— (a) an individual, a single corporation or a co-operative that held the licence or that is a successor of a person who held the licence, immediately before it was suspended, applies to the Secretary for the renewal of the licence in accordance with the regulations and the Secretary renews the licence; or (b) the expiry of 12 months from the date the suspension began— whichever occurs first. (3) If the suspension of a licence ends under sub-section (2)(b), the licence is cancelled.". ═══════════════ s. 13 -- 24 of 25 -- Fisheries (Abalone) Act 2005 Act No. 58/2005 23 ENDNOTES † Minister's second reading speech— Legislative Assembly: 5 May 2005 Legislative Council: 6 September 2005 The long title for the Bill for this Act was "to amend the Fisheries Act 1995 and for other purposes." Endnotes -- 25 of 25 --