Fisheries (Further Amendment) Act 2002

i Fisheries (Further Amendment) Act 2002 Act No. 17/2002 TABLE OF PROVISIONS Section Page 1. Purpose 1 2. Commencement 2 3. Recreational fishing 2 4. Section 48 repealed 4 5. Permit for indigenous cultural activities 4 6. Licence and permit variations 4 7. New section 64AB inserted 5 64AB. Sub-zone orders 5 8. General quota order provisions 6 9. New section 66A inserted 6 66A. Offences in relation to sub-zones 6 10. New section 68B inserted 7 68B. Possession of fish taken in non-Victorian waters 7 11. Fisheries reserves 8 12. Fisheries Co-Management Council 8 13. Recognised peak bodies 8 14. New sections 99 and 100 inserted 8 99. Documents relating to receipt of priority species 8 100. Documents to be kept for 3 years 9 15. Secretary may require return 9 16. Powers of entry and inspection 11 17. Powers of authorised officers 11 18. New section 102A inserted 11 102A. Production of financial records 11 19. Provisions relating to the seizure of items 12 20. Forfeiture or return of things seized 12 21. New section 106A inserted 13 106A. Magistrates' Court may extend 90 day period 13 22. Amendment to section 108 13 23. Hot pursuit of persons and boats beyond Victorian waters 14 24. Amendment to section 111 14 25. Amendment to section 113 14 26. New section 124A inserted 14 124A. Statement to be evidence of certain matters 14 27. Amendment to section 128 16 28. Amendment to section 129 16 -- 1 of 20 -- Section Page ii 29. Amendment to section 131 16 30. Levy may be fixed by reference to quota units 16 31. Regulatory impact statement not required 17 ═══════════════ ENDNOTES 18 -- 2 of 20 -- 1 Fisheries (Further Amendment) Act 2002 † [Assented to 21 May 2002] The Parliament of Victoria enacts as follows: 1. Purpose The purpose of this Act is to amend the Fisheries Act 1995 to— (a) require holders of recreational fishery licences to produce their licences for inspection when fishing; (b) enable general permits to be issued for indigenous cultural ceremonies or events; Victoria No. 17 of 2002 -- 3 of 20 -- Act No. 17/2002 Fisheries (Further Amendment) Act 2002 2 (c) enable allowable catch to be set for sub- zones; (d) strengthen the enforcement provisions; (e) facilitate the operation of the Fisheries Act 1995. 2. Commencement (1) This Act, except sections 3 and 4, comes into operation on the day after the day on which it receives the Royal Assent. (2) Subject to sub-section (3), sections 3 and 4 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 July 2003, it comes into operation on that day. 3. Recreational fishing (1) In section 44 of the Fisheries Act 1995— (a) paragraph (b) is repealed; (b) for paragraph (c) substitute— "(c) take or attempt to take fish from marine waters; or". (2) At the end of section 44 of the Fisheries Act 1995 insert— "(2) A person must comply with sub-section (3) if the person claims to be the holder of a recreational fishery licence and the person— (a) takes or attempts to take fish from inland waters; or (b) takes or attempts to take fish from marine waters; or s. 2 See: Act No. 92/1995. Reprint No. 2 as at 17 May 2001 and amending Act No. 44/2001. LawToday: www.dms. dpc.vic. gov.au -- 4 of 20 -- Act No. 17/2002 Fisheries (Further Amendment) Act 2002 3 (c) uses or possesses a recreational hoop net or a recreational mesh net in, on or next to Victorian waters. Penalty: 5 penalty units. (3) An authorised officer or member of the police force may require a person to whom sub-section (2) applies— (a) to produce the licence for inspection on demand immediately; or (b) if the person does not have the licence in his or her possession, to produce the licence at a time within 7 days of the demand at a place stipulated by the authorised officer or member of the police force. (4) If an authorised officer or a member of the police force directs a person to whom sub- section (2) applies to produce a licence at a subsequent time and place, it is a sufficient compliance with the direction if the person sends by post to the authorised officer or member within 7 days after first returning to his or her place of residence after the demand is made— (a) the licence and a stamped addressed envelope for the return of the licence; or (b) a copy of the licence certified to be a true copy by a person specified in section 107A of the Evidence Act 1958. (5) The statement on oath of an authorised officer or a member of the police force that the holder of a licence failed to produce on demand on a specified day the licence and, having been directed to produce the licence s. 3 -- 5 of 20 -- Act No. 17/2002 Fisheries (Further Amendment) Act 2002 4 to the authorised officer or member within 7 days thereafter, failed to produce the licence or to send by post the licence or a certified copy of the licence, is evidence until the contrary is proven, that the person was not the holder of a recreational fishery licence under the Act on that specified day.". (3) In section 45(1) of the Fisheries Act 1995— (a) paragraph (b) is repealed; (b) in paragraph (c), omit "other than rock lobster". (4) Section 47(2) of the Fisheries Act 1995 is repealed. 4. Section 48 repealed Section 48 of the Fisheries Act 1995 is repealed. 5. Permit for indigenous cultural activities (1) In section 49(2)(g)(ii) of the Fisheries Act 1995, for "bait." substitute "bait;". (2) After section 49(2)(g) of the Fisheries Act 1995 insert— "(h) to take fish (in areas where recreational fishing is authorised under this Act) for a specified indigenous cultural ceremony or event.". 6. Licence and permit variations (1) In section 54(1) of the Fisheries Act 1995, for "The Secretary" substitute "Subject to sub-section (1B), the Secretary". (2) After section 54(1A) of the Fisheries Act 1995 insert— "(1B) The Secretary must not vary— (a) a fishery licence or a permit; or s. 4 -- 6 of 20 -- Act No. 17/2002 Fisheries (Further Amendment) Act 2002 5 (b) a condition on a fishery licence or permit; or (c) a class of fishery licence; or (d) a condition on a class of fishery licence— if the variation would be inconsistent with any regulations, management plan or Ministerial direction.". 7. New section 64AB inserted After section 64A of the Fisheries Act 1995 insert— "64AB. Sub-zone orders (1) The Minister may, by further order published in the Government Gazette— (a) declare that a quota fishery includes a sub-zone; and (b) set the portion of the total allowable catch for the quota fishery that applies in respect of a specified sub-zone; and (c) determine the method for allocating that portion of the total allowable catch to the holders of access licences issued in respect of the quota fishery. (2) The Minister may revoke or amend an order under sub-section (1) at any time by an order published in the Government Gazette. (3) The Secretary must give the holder of an access licence in a 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 licence holder as soon as is practicable after a sub-zone order under this section is published.". s. 7 -- 7 of 20 -- Act No. 17/2002 Fisheries (Further Amendment) Act 2002 6 8. General quota order provisions In section 64B(1) of the Fisheries Act 1995— (a) for "section 64 or 64A" substitute "section 64, 64A or 64AB"; (b) for "recommendation" substitute "making, revoking or amending of the order". 9. New section 66A inserted After section 66 of the Fisheries Act 1995 insert— "66A. Offences in relation to sub-zones (1) During any specified quota period, the holder of an access licence must not take any fish in excess of the fish specified in the sub-zone notice given to the holder of the 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 quota units equivalent to the quantity of excess fish taken. (2) If a person who is acting on behalf of the holder of an access licence takes any fish in excess of the fish specified in the sub-zone notice given to the holder of the licence— (a) the person is liable to the relevant fines specified in sub-section (1); and (b) the relevant forfeiture applies to the licence.". s. 8 -- 8 of 20 -- Act No. 17/2002 Fisheries (Further Amendment) Act 2002 7 10. New section 68B inserted After section 68A of the Fisheries Act 1995 insert— "68B. Possession of fish taken in non-Victorian waters (1) Unless otherwise permitted or authorised under this Act, a person must not have in his or her possession fish taken in waters of the Commonwealth or another State or Territory of the Commonwealth— (a) that are less than the minimum size, or that are more than the maximum size, specified for that species of fish; or (b) that are more than the catch limit for that species of fish— under the corresponding law of the Commonwealth or that State or Territory. Penalty: (a) If the offence involves exceeding the catch limit for abalone by more than twice the catch limit— (i) for a first offence— 50 penalty units or imprisonment for 3 months or both; (ii) for a subsequent offence— 100 penalty units or imprisonment for 6 months or both. (b) In any other case—20 penalty units. (2) For the purposes of sub-section (1), if the corresponding law of the Commonwealth, State or Territory of the Commonwealth s. 10 -- 9 of 20 -- Act No. 17/2002 Fisheries (Further Amendment) Act 2002 8 does not specify relevant size and catch limits, sub-section (1) applies as if the corresponding law of the Commonwealth, State or Territory of the Commonwealth specified the size and catch limits that would apply if the fish had been taken in Victorian waters.". 11. Fisheries reserves (1) In section 88(1) of the Fisheries Act 1995 omit "or the Crown Land (Reserves) Act 1978". (2) Sections 88(5)(c) and 88(7) of the Fisheries Act 1995 are repealed. 12. Fisheries Co-Management Council In section 90(3)(c) of the Fisheries Act 1995, for "traditional fishing uses" substitute "indigenous fishing uses". 13. Recognised peak bodies In section 95(1) of the Fisheries Act 1995— (a) for "must, not later than 12 months after the commencement of this section," substitute "may"; (b) in paragraph (a), after "interests" insert "or seafood industry interests". 14. New sections 99 and 100 inserted After the Heading to Division 1 of Part 7 of the Fisheries Act 1995 insert— "99. Documents relating to receipt of priority species (1) A person who receives any fish that is a priority species for the purpose of sale, whether by wholesale or retail, must keep a document showing— s. 11 -- 10 of 20 -- Act No. 17/2002 Fisheries (Further Amendment) Act 2002 9 (a) the name and address of the person from whom the fish was received; and (b) the species and quantity of fish received from that person; and (c) the date the fish was received. Penalty: 50 penalty units. (2) An authorised officer or member of the police force may require a person who is required to keep a document under sub- section (1) to produce the document for inspection on demand. Penalty: 50 penalty units. 100. Documents to be kept for 3 years A person must keep for a period of 3 years from the date on which a document is created or received any document that is required by this Act to be kept. Penalty: 50 penalty units.". 15. Secretary may require return For section 101(1) of the Fisheries Act 1995 substitute— "(1) The Secretary may by notice in writing served on any person require that person within any reasonable time specified in the notice to furnish to the Secretary or to some other person or officer specified by the Secretary a statement supported by a statutory declaration attesting to the truth of such of the following as are specified in the notice— (a) in the case of the person, whether as principal or agent, who took, produced or consigned fish, protected aquatic biota or noxious aquatic species— s. 15 -- 11 of 20 -- Act No. 17/2002 Fisheries (Further Amendment) Act 2002 10 (i) the quantity of those fish, protected aquatic biota or noxious aquatic species; and (ii) the number of persons engaged or employed in taking or producing those fish, protected aquatic biota or noxious aquatic species and the number of hours those persons were so engaged or employed; and (iii) the name and address of each person engaged or employed in taking or producing those fish, protected aquatic biota or noxious aquatic species; and (iv) the equipment and methods used to take or produce those fish, protected aquatic biota or noxious aquatic species; and (v) the name and address of each person to whom those fish, protected aquatic biota or noxious aquatic species were consigned, transported or delivered; and (vi) the address of the premises to which those fish, protected aquatic biota or noxious aquatic species were consigned, transported or delivered; (b) in the case of the person, whether as principal or agent, who received fish, protected aquatic biota or noxious aquatic species— (i) the quantity of those fish, protected aquatic biota or noxious aquatic species; and s. 15 -- 12 of 20 -- Act No. 17/2002 Fisheries (Further Amendment) Act 2002 11 (ii) the name and address of each person from whom those fish, protected aquatic biota or noxious aquatic species were consigned, transported or delivered.". 16. Powers of entry and inspection For section 102(2)(h) of the Fisheries Act 1995 substitute— "(h) inspecting any document which the authorised officer or member of the police force reasonably believes to be relevant for the purpose of ascertaining whether or not the provisions of this Act, the regulations or a fisheries notice are being observed; (ha) making extracts, copies or notes of the contents of a document inspected under paragraph (h);". 17. Powers of authorised officers In section 102(6)(a) of the Fisheries Act 1995, omit "by the holders of licences and permits". 18. New section 102A inserted After section 102 of the Fisheries Act 1995 insert— "102A. Production of financial records (1) An authorised officer or member of the police force may, upon reasonable notice, for the purpose of ascertaining whether or not the provisions of this Act, the regulations or a fisheries notice are being observed— (a) require the production of any financial, accounting or business records kept by the holder of a licence or permit which relate to any activity connected with s. 16 -- 13 of 20 -- Act No. 17/2002 Fisheries (Further Amendment) Act 2002 12 being the holder of the licence or permit; and (b) examine those records when so produced; and (c) make extracts, copies or notes of the contents. (2) For the purposes of sub-section (1), financial, accounting or business records created on behalf of the holder of a licence or permit and in the possession of a third party are deemed to be kept by the holder of the licence or permit.". 19. Provisions relating to the seizure of items In section 104(5) of the Fisheries Act 1995, for "14 days" substitute "21 days". 20. Forfeiture or return of things seized (1) After section 106(5) of the Fisheries Act 1995 insert— "(5A) A court must order the forfeiture of the thing under sub-section (5) if the person in respect of whom the court found an offence proven has previously been convicted or found guilty on 2 or more occasions of offences involving priority species under section 36(1), 37(1), 40(1), 67(1), 68A(4B), 68A(5) or 116(1).". (2) In section 106(6) of the Fisheries Act 1995— (a) for "If" substitute "Subject to sub-section (6A), if"; (b) for "60 days" (where twice occurring) substitute "90 days". (3) After section 106(6) of the Fisheries Act 1995 insert— s. 19 -- 14 of 20 -- Act No. 17/2002 Fisheries (Further Amendment) Act 2002 13 "(6A) Sub-section (6) does not apply to anything— (a) which is forfeited to the Crown under sub-section (1); or (b) the sale, possession or use of which is prohibited by or under this Act; or (c) which is fish taken in contravention of this Act, the regulations or a fisheries notice.". 21. New section 106A inserted After section 106 of the Fisheries Act 1995 insert— "106A. Magistrates' Court may extend 90 day period (1) An authorised officer or member of the police force may apply to the Magistrates' Court within 90 days after seizing a document or other thing under this Act for an extension of the period for which the inspector may retain the document or thing. (2) The Magistrates' Court may order such an extension if it is satisfied that retention of the document or other thing is necessary— (a) for the purposes of an investigation into whether a contravention of this Act, the regulations or a fisheries notice has occurred; or (b) to enable evidence of a contravention of this Act, the regulations or a fisheries notice to be obtained for the purposes of a proceeding under this Act. (3) The Magistrates' Court may adjourn an application to enable notice of the application to be given to any person.". 22. Amendment to section 108 s. 21 -- 15 of 20 -- Act No. 17/2002 Fisheries (Further Amendment) Act 2002 14 In section 108(2) of the Fisheries Act 1995, after "sub-section (1)" insert "or finds a person guilty of an offence against sub-section (1)". 23. Hot pursuit of persons and boats beyond Victorian waters (1) Insert the following heading to section 110 of the Fisheries Act 1995— "Hot pursuit of persons and boats beyond Victorian waters". (2) In section 110(1) of the Fisheries Act 1995, for "the coastal waters of Victoria" substitute "Victorian waters". 24. Amendment to section 111 In section 111(1)(e) of the Fisheries Act 1995, after "102" insert "or 102A". 25. Amendment to section 113 In section 113(2) of the Fisheries Act 1995, after "sub-section (1)" insert "or finds a person guilty of an offence against sub-section (1)". 26. New section 124A inserted After section 124 of the Fisheries Act 1995 insert— "124A. Statement to be evidence of certain matters A statement in writing purporting to be under the seal of the Secretary to the effect that— (a) on a specified date or during a specified period a person was or was not authorised to do anything under an authorisation, or was or was not exempted from this Act or a specified provision of this Act; or (b) on a specified date or during a specified period a specified vessel, premises or s. 23 -- 16 of 20 -- Act No. 17/2002 Fisheries (Further Amendment) Act 2002 15 other thing was or was not the subject of an authorisation or exemption; or (c) on a specified date or during a specified period a specified authorisation or exemption was cancelled, suspended or for any other specified reason was of no effect; (d) on a specified date or during a specified period a specified authorisation or exemption was subject to a specified condition; or (e) on a specified date or during a specified period the Secretary or an authorised officer had been notified by a specified person in accordance with a requirement under this Act, the regulations or a condition in a licence or permit, that a specified person had taken, received, dispatched or sold a specified quantity, form or type of fish; or (f) on a specified date or during a specified period the Secretary or an authorised officer had not received a report from a specified person in accordance with a requirement under this Act, the regulations or a condition in a licence or permit; or (g) on a specified date or during a specified period the Secretary or an authorised officer had received a report from a specified person in accordance with a requirement under this Act, the regulations or a condition in a licence or permit containing the information specified; or s. 26 -- 17 of 20 -- Act No. 17/2002 Fisheries (Further Amendment) Act 2002 16 (h) on a specified date or during a specified period the Secretary or an authorised officer had received a return from a specified person in accordance with a requirement under this Act, the regulations or a condition in a licence or permit containing levels of catches of fish or similar statistical information specified— is evidence of the facts stated in the statement.". 27. Amendment to section 128 In section 128 of the Fisheries Act 1995— (a) in sub-sections (1) and (3), after "convicted" insert "or found guilty"; (b) in sub-sections (4) and (6), after "convicted person" insert "or person found guilty". 28. Amendment to section 129 In section 129 of the Fisheries Act 1995, after "an offence" insert "or finds a corporation guilty of an offence". 29. Amendment to section 131 In section 131(2) of the Fisheries Act 1995, for "incurred by" substitute "or finding of guilt of". 30. Levy may be fixed by reference to quota units After section 151(2)(c) of the Fisheries Act 1995 insert— "; or (d) in proportion to the number of quota units held.". s. 27 -- 18 of 20 -- Act No. 17/2002 Fisheries (Further Amendment) Act 2002 17 31. Regulatory impact statement not required After section 151(8) of the Fisheries Act 1995 insert— "(8A) Despite the Subordinate Legislation Act 1994, a regulatory impact statement is not required before a regulation is made under this section if— (a) the proposed increase in the rate of levy is to be charged, levied and collected from a class of access licence holder represented by a particular recognised peak body; and (b) the Minister has consulted with the particular recognised peak body; and (c) the particular recognised peak body has advised the Minister in writing that each of the affected access licence holders has agreed to the proposed increase in the rate of levy; and (d) the Minister certifies in writing that this sub-section has been complied with. (8B) The Minister must ensure that a copy of the certificate under sub-section (8A) is given to the Scrutiny of Acts and Regulations Committee as soon as practicable after the statutory rule is made. (8C) A copy of the certificate under sub-section (8A) must be laid before each House of the Parliament at the same time as the statutory rule is so laid under section 15 of the Subordinate Legislation Act 1994.". ═══════════════ s. 31 -- 19 of 20 -- Act No. 17/2002 Fisheries (Further Amendment) Act 2002 18 ENDNOTES † Minister's second reading speech— Legislative Assembly: 18 April 2002 Legislative Council: 14 May 2002 The long title for the Bill for this Act was "to amend the Fisheries Act 1995 and for other purposes." Endnotes -- 20 of 20 --