Fisheries (Amendment) Act 2000

i Fisheries (Amendment) Act 2000 Act No. 80/2000 TABLE OF PROVISIONS Section Page 1. Purposes 1 2. Commencement 2 3. Amendment to definitions 2 4. Exemption if authorised under general permit 3 5. Special provision concerning general permits 3 6. Variation to class of licence conditions 4 7. Notice given to holders of financial interests 5 8. Insertion of section 60A 5 60A. Removal notice on cancellation or expiry of aquaculture licence 5 9. Substitution of sections 64 and 65 7 64. Initial quota order 7 64A. Further quota order 8 64B. General quota order provisions 9 64C. Saving provision—existing quota orders 9 65. Quota notices 10 65A. Transfer of individual quota units 10 10. Offences in relation to abalone etc. 11 11. Insertion of sections 108A and 108B 12 108A. Retention notices 13 108B. Evidentiary provisions relating to retention notices 14 12. Insertion of section 110A 14 110A. Authorised officers do not commit offences in certain circumstances 15 13. Prohibition to possess certain fish or equipment or engage in certain activities 15 14. Insertion of sections 130A and 130B 16 130A. Further prohibition court order 16 130B. Prohibition to be in or on specified waters 17 15. Reviewable decision to refuse approval to transfer quota units 18 16. Conditions of licence to be made available for inspection 19 17. Amendment to secrecy provision 19 18. Levy 19 19. Insertion of sections 151B and 151C 19 151B. Recreational Fishing Licence Trust Account 19 151C. Fisheries Revenue Allocation Committee 21 -- 1 of 25 -- Section Page ii 20. Amendment to Schedule 1 22 21. Regulation of vessel monitoring systems 22 22. Repeal of saving provision 22 ═══════════════ ENDNOTES 23 -- 2 of 25 -- 1 Fisheries (Amendment) Act 2000† [Assented to 28 November 2000] The Parliament of Victoria enacts as follows: 1. Purposes The main purposes of this Act are— (a) to provide for the variation of classes of fishery licences; and (b) to provide for the permanent transfer of quota units; and (c) to enable the Secretary to issue removal and retention notices; and (d) to enable a court to prohibit offenders from being in or on certain Victorian waters; and Victoria No. 80 of 2000 -- 3 of 25 -- Act No. 80/2000 Fisheries (Amendment) Act 2000 2 (e) to establish the Recreational Fishing Licence Trust Account and the Fisheries Revenue Allocation Committee; and (f) to make other amendments to the Fisheries Act 1995. 2. Commencement (1) This Act (other than sections 9 and 22) comes into operation on the day after the day on which it receives the Royal Assent. (2) Sections 9 and 22 come into operation on a day or days to be proclaimed. (3) If section 9 does not come into operation before 1 April 2002, it comes into operation on that day. (4) If section 22 does not come into operation before 1 April 2003, it comes into operation on that day. 3. Amendment to definitions In section 4(1) of the Fisheries Act 1995— (a) in the definition of "quota order", after "section 64" insert "or section 64A"; (b) insert— ' "quota fishery" means a fishery, or a specified zone or zones of a fishery, that is the subject of a declaration under section 64(1)(a); "vessel monitoring system" means a navigational measuring system that is suitable for installation on a boat and that is capable of— (a) determining the location and activities of the boat; and s. 2 See: Act No. 92/1995. Reprint No. 1 as at 1 April 1998 and amending Act Nos 46/1998 and 76/1998. LawToday: www.dms. dpc.vic. gov.au -- 4 of 25 -- Act No. 80/2000 Fisheries (Amendment) Act 2000 3 (b) transmitting data in relation to that location and those activities to the Secretary or the Secretary's delegate via a satellite communication system;'. 4. Exemption if authorised under general permit After section 42(2) of the Fisheries Act 1995 insert— "(2A) A person may do any of the things referred to in sub-section (1) for commercial purposes (other than for sale) if he or she— (a) is acting on behalf of the holder of a general permit who is authorised to do that thing; and (b) is authorised by that permit to do that thing; and (c) is not prohibited by this Act from so acting.". 5. Special provision concerning general permits After section 49(2)(f) of the Fisheries Act 1995 insert— "; or (g) for commercial purposes (other than for sale)— (i) to use, form or create a habitat (whether natural, artificial or partly natural or artificial) for hatching, rearing, breeding, displaying or growing fish or fishing bait; (ii) to hatch, rear, breed, display or grow fish or fishing bait.". s. 4 -- 5 of 25 -- Act No. 80/2000 Fisheries (Amendment) Act 2000 4 6. Variation to class of licence conditions (1) After section 54(1)(b) of the Fisheries Act 1995 insert— "; or (c) vary a class of fishery licence; or (d) vary or revoke a condition imposed by the Secretary or impose a new condition on a class of fishery licence.". (2) After section 54(1) of the Fisheries Act 1995 insert— "(1A) The Secretary may only exercise a power conferred by sub-section (1)(c) or (d) to give effect to a management plan declared under section 28, or to any change to such a plan.". (3) In section 54(3) of Fisheries Act 1995, for "taking action under sub-section (2)(a)" substitute "acting on the Secretary's own initiative in respect of sub-section (1)(a) or (b)". (4) After section 54(3) of the Fisheries Act 1995 insert— "(3A) Before taking action under sub-section (1)(c) or (d), the Secretary must— (a) give the consultative body and the relevant recognised peak body written notice of the action that the Secretary proposes to take and must consider any written submissions made by the consultative body or the relevant recognised peak body about the intended action within 28 days after the giving of the notice; and (b) publish notice of the action that the Secretary proposes to take in a newspaper circulating generally in s. 6 -- 6 of 25 -- Act No. 80/2000 Fisheries (Amendment) Act 2000 5 Victoria within 5 days after giving the consultative body and the relevant recognised peak body written notice under paragraph (a).". (5) In section 54(4) of the Fisheries Act 1995, for "Sub-section (3) does" substitute "Sub-sections (3) and (3A) do". 7. Notice given to holders of financial interests (1) For section 59(3) of the Fisheries Act 1995 substitute— "(3) The Secretary must notify each holder of a registered financial interest of an application— (a) to transfer the licence; or (b) to transfer individual quota units from the licence permanently— within 21 days after receiving the application.". (2) In section 59(5) of the Fisheries Act 1995, after "transfer the licence" insert "or permanently transfer individual quota units, as the case may be". 8. Insertion of section 60A After section 60 of the Fisheries Act 1995 insert— "60A. Removal notice on cancellation or expiry of aquaculture licence (1) This section applies if— (a) a person's aquaculture licence has expired or is cancelled; and (b) the aquaculture licence related to an area that is Crown land. s. 7 -- 7 of 25 -- Act No. 80/2000 Fisheries (Amendment) Act 2000 6 (2) The Secretary may, by notice in writing served on the person, require the person within any reasonable time specified in the notice to remove any commercial aquaculture equipment, fish, fishing bait or aquatic flora specified in the notice from the area to which the licence applied. (3) A person who is served with a notice under sub-section (2) must comply with the requirements of the notice. Penalty: 100 penalty units or 6 months imprisonment or both. (4) If a person has failed to comply with the requirements of the notice, the Secretary may at any reasonable time having regard to all the circumstances— (a) enter upon any land or protected waters or any other premises other than a dwelling house for the purpose of searching for, or seizing and removing, any commercial aquaculture equipment, fish, fishing bait or aquatic flora specified in the notice; and (b) seize and remove any commercial aquaculture equipment, fish, fishing bait or aquatic flora specified in the notice. (5) Any commercial aquaculture equipment, fish, fishing bait or aquatic flora seized under sub-section (3) may be disposed of as the Secretary directs. (6) All reasonable costs and expenses incurred by the Secretary as a result of the failure of s. 8 -- 8 of 25 -- Act No. 80/2000 Fisheries (Amendment) Act 2000 7 the person to comply with the notice may be recovered from that person by the Secretary. (7) If the whole or part of an amount payable under sub-section (6) has not been paid to the Secretary as required or the proceeds from the sale of the seized things do not meet the Secretary's costs and expenses, the Secretary may recover the amount unpaid as a debt in a court of competent jurisdiction. (8) After the payment of the Secretary's costs and expenses, any proceeds remaining from the sale of the seized things must be paid to the person whose property they were at the time they were seized.". 9. Substitution of sections 64 and 65 For sections 64 and 65 of the Fisheries Act 1995 substitute— "64. Initial 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 a 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) determine the method for allocating individual quotas to each access licence issued in respect of the quota fishery; (d) declare that individual quota units in the quota fishery may be transferred— (i) permanently; or s. 9 -- 9 of 25 -- Act No. 80/2000 Fisheries (Amendment) Act 2000 8 (ii) for a quota period only; (e) set the minimum and maximum number of individual quota units that may be acquired or held by each licence holder; (f) determine the circumstances, if any, in which the individual quotas can be exceeded or carried over (other than by transfer). (2) The Minister may revoke or amend an order at any time by order published in the Government Gazette. (3) However, if the Minister makes a declaration under sub-section (1)(d)(i), the Minister may only amend that declaration or anything under sub-section (1)(a), (b) or (c) if the amendment is required— (a) to give effect to the management plan for the 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. (4) If the Minister makes a declaration under sub-section (1)(d)(i), the holders of access licences may also transfer individual quota units for a quota period only. 64A. Further quota order (1) The Minister may, by further order published in the Government Gazette— s. 9 -- 10 of 25 -- Act No. 80/2000 Fisheries (Amendment) Act 2000 9 (a) set the total allowable catch (by number, volume, weight or value) for a specified period for a quota fishery; (b) determine the quantity of fish (by number, volume, weight or value) comprising an individual quota unit in a 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 intending to limit the generality of sub-section (2), the Minister may reduce the total allowable catch, or reduce the quantity of fish comprising an individual quota unit before the end of the period to which the total allowable catch or unit applies. 64B. General quota order provisions (1) The Minister must not make, revoke or amend an order under section 64 or 64A 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 recommendation. (2) In referring to a quantity of individual quota units, an order under section 64 or 64A may refer to fractions of an individual quota unit. (3) 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 it is to have effect from. 64C. Saving provision—existing quota orders Any quota order or quota notice in existence immediately before section 9 of the s. 9 -- 11 of 25 -- Act No. 80/2000 Fisheries (Amendment) Act 2000 10 Fisheries (Amendment) Act 2000 came into operation is to continue in operation until the end of the quota period established by the order as if section 9 had not come into operation. 65. Quota notices (1) The Secretary must give the holder of an access licence in a quota fishery a quota notice setting out details of the individual quota allocated to the licence as soon as is practicable after any individual quota is allocated to the licence. (2) If a quota order makes any change to an individual quota in respect of a quota fishery for which individual quota units may only be temporarily transferred, the Secretary must give the holder of the access licence a new quota notice setting out details of the revised individual quota as soon as is practicable after the quota order is published. (3) If the Secretary grants an application for a transfer under section 65A, the Secretary must issue new quota notices for each access licence involved in the transfer or acquisition. (4) The Secretary must issue a new quota notice for an access licence as soon as is practicable after the access licence is renewed or transferred. (5) If an individual quota no longer applies to a licence in a quota period, the quota notice required by sub-section (3) or (4) must state that fact. 65A. Transfer of individual quota units s. 9 -- 12 of 25 -- Act No. 80/2000 Fisheries (Amendment) Act 2000 11 (1) A transfer of individual quota units may only be made with the approval of the Secretary. (2) The holder of an access licence in a quota fishery may apply to the Secretary for approval to transfer a fraction of, or 1 or more, individual quota units to the holder of any other access licence for that fishery. (3) An application for the approval of a transfer must— (a) be made in the manner and form required by the Secretary; and (b) if applicable, be accompanied by the relevant quota notice or notices. (4) The Secretary may grant an application if it is consistent with every quota order and management plan that applies to the quota fishery. (5) The Secretary must refuse to grant an application that is inconsistent with any relevant provision of this Act.". 10. Offences in relation to abalone etc. (1) For the penalty at the foot of section 68A(3) of the Fisheries Act 1995 substitute— "Penalty: 20 penalty units.". (2) For section 68A(5) of the Fisheries Act 1995, substitute— "(4A) A person who takes or possesses— (a) more than the catch limit for abalone; but (b) not more than twice that catch limit— s. 10 -- 13 of 25 -- Act No. 80/2000 Fisheries (Amendment) Act 2000 12 is guilty of an offence. Penalty: 20 penalty units. (4B) A person who takes or possesses more than twice the catch limit for abalone is guilty of an offence. Penalty: First offence—50 penalty units or imprisonment for 3 months or both. Subsequent offence—100 penalty units or imprisonment for 6 months or both. (4C) It is a defence to a charge under sub-section (2)(b), (3), (4A) or (4B) if the person charged can prove that the fish were taken in accordance with this Act. (5) A person must not use commercial abalone equipment to take abalone that is less than the minimum size, or that is more than the maximum size, specified by the regulations for abalone. Penalty: First offence—50 penalty units or imprisonment for 3 months or both. Subsequent offence—100 penalty units or imprisonment for 6 months or both.". (3) In section 68A(7) of the Fisheries Act 1995, after "section" (where secondly occurring) insert "(other than an offence in respect of which an infringement notice has been issued)". 11. Insertion of sections 108A and 108B s. 10 s. 11 -- 14 of 25 -- Act No. 80/2000 Fisheries (Amendment) Act 2000 13 After section 108 of the Fisheries Act 1995 insert— "108A. Retention notices (1) If an authorised officer or a member of the police force believes on reasonable grounds that any thing has been taken or used in contravention of this Act or a corresponding law of another State or a Territory of the Commonwealth, the officer or member may issue the person holding or using the thing with a notice requiring the person to keep the thing in his or her possession and not to sell or dispose of the thing. (2) A notice under sub-section (1)— (a) must be in writing; and (b) must specify the thing to which the notice relates (including in the case of fish, the species and quantity); and (c) has effect for the period specified in the notice (which must not be more than 90 days from the issue of the notice); and (d) may be cancelled by the person who issued the notice; and (e) is subject to any terms and conditions specified in the notice. (3) If proceedings are commenced within the period specified in the notice against any person in relation to the thing to which the notice relates, the Secretary may extend the period for which a notice has effect under sub-section (2). -- 15 of 25 -- Act No. 80/2000 Fisheries (Amendment) Act 2000 14 (4) If the Secretary extends the period for which a notice has effect, the Secretary must, before the expiry of the original extension— (a) notify the person to whom the notice is issued of the extension; and (b) specify in the notice the period for which the extension is to have effect. (5) A person to whom a notice has been issued must comply with the notice. Penalty: 100 penalty units or 6 months imprisonment or both. 108B. Evidentiary provisions relating to retention notices (1) In any proceedings under section 108A, evidence that a thing, specified in a notice under that section as being in the possession of a particular person or as being used by a particular person, is no longer in the possession of that person is evidence, and, in the absence of evidence to the contrary, is proof, that the person has not complied with the notice. (2) In any proceedings under this Act, the fact that a thing is specified in a notice under section 108A as being in the possession of a particular person or as being used by a particular person is evidence, and, in the absence of evidence to the contrary, is proof, that the thing was in the possession of that person.". 12. Insertion of section 110A s. 11 s. 12 -- 16 of 25 -- Act No. 80/2000 Fisheries (Amendment) Act 2000 15 After section 110 of the Fisheries Act 1995 insert— "110A. Authorised officers do not commit offences in certain circumstances (1) An act done by— (a) an authorised officer; or (b) a member of the police force— which, but for this sub-section, would constitute an offence against section 36, 37, 40, 42, 44, 67, 68A, 76, 111, 114 or 116 or against the regulations, does not have that consequence if the act is done under written instructions given in relation to a particular case by the Secretary. (2) The Secretary must not give instructions to an authorised officer under sub-section (1) unless the Secretary is satisfied that the authorised officer has the appropriate training and experience to carry out the act in respect of which the instructions are given. (3) Despite anything to the contrary in any Act, the Secretary may not delegate any power conferred or duty imposed by this section.". 13. Prohibition to possess certain fish or equipment or engage in certain activities For section 130(1)(d) of the Fisheries Act 1995 substitute— "(d) being in possession of specified fishing equipment or fish; or (e) engaging in any activity authorised by a fishery licence unless the person has installed a vessel monitoring system and -- 17 of 25 -- Act No. 80/2000 Fisheries (Amendment) Act 2000 16 complies with the prescribed conditions on the use of the system.". 14. Insertion of sections 130A and 130B After section 130 of the Fisheries Act 1995 insert— "130A. Further prohibition court order (1) This section applies if a person has been prohibited under a law of another State or Territory or the Commonwealth from engaging in specified fishing activity or being in the possession of specified fish or fishing equipment. (2) A court may, on the application of the Secretary, by order prohibit the person from engaging in the specified fishing activity or being in the possession of the specified fish or fishing equipment. (3) A court must not make an order under sub- section (2) unless— (a) the application is accompanied by information that justifies the making of the order; and (b) the court is satisfied that the person is likely to engage in the specified fishing activity or be in the possession of the specified fish or fishing equipment in Victoria. (4) An order— (a) may apply generally or at specified times or in specified circumstances; s. 14 -- 18 of 25 -- Act No. 80/2000 Fisheries (Amendment) Act 2000 17 (b) has effect for such a period as is specified in the order or, if no period is specified, until the order is rescinded; (c) may be rescinded or varied at any time. (5) A person must comply with an order under this section. Penalty: 200 penalty units or imprisonment for 12 months or both. 130B. Prohibition to be in or on specified waters (1) This section applies if— (a) a court convicts a person of an offence against this Act that is punishable by imprisonment; and (b) the person has been previously convicted, on 2 or more separate occasions, of an offence against this Act that was punishable by imprisonment. (2) In addition to any other penalty the court may impose, the court may, on the application of the Secretary, by order prohibit the person from being in or on specified Victorian waters without a lawful purpose. (3) A court must not make an order under sub- section (2) unless— (a) the application is accompanied by information that justifies the making of the order; and (b) the court is satisfied that the person is likely to commit further offences in or on the specified waters. s. 14 -- 19 of 25 -- Act No. 80/2000 Fisheries (Amendment) Act 2000 18 (4) An order— (a) may apply generally or at specified times or in specified circumstances; (b) has effect for a specified period of no more than 10 years or, if no period is specified, for no more than 10 years; (c) may be rescinded or varied at any time. (5) In specifying the waters to which an order applies, the court must, to the maximum extent that is practicable having regard to the purpose of the order, limit the specification of the waters as much as possible. (6) A person must comply with an order. Penalty: 200 penalty units or imprisonment for 12 months or both. (7) In a prosecution for an offence against sub- section (6), it is not necessary for the prosecutor to prove that the person charged was on or in the specified waters without a lawful purpose—it is sufficient to prove that the person was in or on those waters on the relevant date. (8) It is a defence to a charge under sub-section (6) if the person charged gives, in the opinion of the court, a satisfactory account as to why he or she was on or in the specified waters.". 15. Reviewable decision to refuse approval to transfer quota units In section 137 of the Fisheries Act 1995, after paragraph (h) insert— s. 15 -- 20 of 25 -- Act No. 80/2000 Fisheries (Amendment) Act 2000 19 "(ha) to refuse approval of a transfer of individual quota units under section 65A;". 16. Conditions of licence to be made available for inspection In section 145 of the Fisheries Act 1995, after "quota order" insert ", conditions imposed by the Secretary under section 52 on a class of fishery licence". 17. Amendment to secrecy provision In section 146(1) of the Fisheries Act 1995, after paragraph (e) insert— "(ea) a member of the Fisheries Revenue Allocation Committee;". 18. Levy In section 151 of the Fisheries Act 1995— (a) in sub-section (1), for "the prescribed rate of levy in respect of that prescribed class" substitute "prescribed levies at prescribed rates"; (b) in sub-section (2), for "The prescribed rate" substitute "A prescribed rate"; (c) in sub-sections (3) and (6), for "the levy" substitute "a levy"; (d) in sub-section (4), for "The levy" substitute "A levy". 19. Insertion of sections 151B and 151C After section 151A of the Fisheries Act 1995 insert— "151B. Recreational Fishing Licence Trust Account s. 16 -- 21 of 25 -- Act No. 80/2000 Fisheries (Amendment) Act 2000 20 (1) The Minister is to establish a trust account to be called the Recreational Fishing Licence Trust Account. (2) Into the Account must be paid— (a) the levies and application fees received in respect of recreational fishing licences under this Act; (b) income from the investment of the Trust Account; (c) all other money authorised to be paid to the Trust Account by the Minister. (3) The following may be paid out of the Account— (a) amounts determined by the Minister for the purpose of improving recreational fishing; (b) the costs and expenses incurred in the administration of recreational fishing licences and the Fisheries Revenue Allocation Committee established under section 151C. (4) The Minister must cause a report on how amounts paid into the Account were disbursed— (a) to be prepared by 1 October each year; and (b) to be laid before each House of Parliament on or before the 7th sitting day of that House after the report has been prepared. (5) The Minister may invest money standing to the credit of the Account in any manner in which trust funds may be invested under the Trustee Act 1958. s. 19 -- 22 of 25 -- Act No. 80/2000 Fisheries (Amendment) Act 2000 21 151C. Fisheries Revenue Allocation Committee (1) There is established a Committee called the Fisheries Revenue Allocation Committee. (2) The function of the Committee is to provide any advice requested by the Minister on the priorities for the disbursement of funds from the Recreational Fishing Licence Trust Account. (3) The Committee consists of the following 6 members appointed by the Minister— (a) 2 members of the Fisheries Co- Management Council or of a fishery committee with knowledge of, and experience in, recreational fishing nominated by the Fisheries Co- Management Council; (b) 2 people nominated by the Secretary; (c) 2 people nominated by the recognised peak body for recreational fishing. (4) The Minister must appoint one of the members to be the chairperson of the Committee. (5) Schedule 1, other than clause 9, applies to the membership and procedure of the Committee. (6) The 2 members of the Committee nominated by the Fisheries Co-Management Council may report the proceedings of the Committee to the Fisheries Co-Management Council.". s. 19 -- 23 of 25 -- Act No. 80/2000 Fisheries (Amendment) Act 2000 22 20. Amendment to Schedule 1 In clause 1 in Schedule 1 to the Fisheries Act 1995, in the definition of "body", after paragraph (b) insert— "; or (c) the Fisheries Revenue Allocation Committee.". 21. Regulation of vessel monitoring systems In Schedule 3 to the Fisheries Act 1995, after clause 4.10 insert— "4.11 Requiring the installation and maintenance of vessel monitoring systems on boats and regulating the use of vessel monitoring systems.". 22. Repeal of saving provision Section 64C of the Fisheries Act 1995 is repealed. ═══════════════ s. 20 -- 24 of 25 -- Act No. 80/2000 Fisheries (Amendment) Act 2000 23 ENDNOTES † Minister's second reading speech— Legislative Assembly: 5 October 2000 Legislative Council: 14 November 2000 The long title for the Bill for this Act was "to amend the Fisheries Act 1995 and for other purposes." Endnotes -- 25 of 25 --