Inland Fisheries Act 1995
An Act to consolidate the law relating to inland fisheries
[Royal Assent 8 December 1995]
Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:
PART 1 - Preliminary
This Act may be cited as the Inland Fisheries Act 1995 .
This Act commences on a day to be proclaimed.
In this Act –acclimatised fish means a kind or species of fish that is not indigenous to inland waters;[Section 3 Amended by No. 103 of 2000, Sched. 1, Applied:13 Dec 2000] accumulation scheme means the Tasmanian Accumulation Scheme established under the Public Sector Superannuation Reform Act 1999 ;Appeal Tribunal means the Resource Management and Planning Appeal Tribunal established under the Resource Management and Planning Appeal Tribunal Act 1993 ;applicable fish means a kind or species of fish declared under section 60 ;[Section 3 Amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] approved means approved by the Director;[Section 3 Amended by No. 101 of 1999, s. 4, Applied:01 Mar 2000]Atlantic salmon means the species Salmo salar of the family Salmonidae;boat includes a ship or vessel of any kind;commercial fishing licence means a licence referred to in section 21 ;commercial licence means any licence issued under Division 1 of Part 3 ;[Section 3 Amended by No. 103 of 2000, Sched. 1, Applied:13 Dec 2000] complying superannuation scheme means a complying superannuation fund as provided by the law of the Commonwealth;[Section 3 Amended by No. 103 of 2000, Sched. 1, Applied:13 Dec 2000] contributory scheme means the superannuation arrangements provided by Part 4 of the Retirement Benefits Regulations 1994 ;controlled fish means fish declared as such under section 149 ;[Section 3 Amended by No. 101 of 1999, s. 4, Applied:01 Mar 2000] Council means the Inland Fisheries Advisory Council established under section 20A ;dam includes any fixed obstruction used to dam water;declared fish means –(a) salmon; and(b) any freshwater fish declared under section 39 ;[Section 3 Amended by No. 101 of 1999, s. 4, Applied:01 Mar 2000] Director means the Director of Inland Fisheries appointed under section 11 ;eel means fish of the family Anguillidae;equipment includes any net, implement, apparatus or other device for taking or facilitating the taking of fish;excepted waters means any waters declared to be excepted waters under section 8 ;exemption permit means a permit referred to in section 169 ;fauna reserve means inland waters declared to be a fauna reserve under section 154 ;fish includes –(a) any animal that throughout its ordinary life lives in water; and(b) the spawn, fry or young of such an animal;fish farm means any area on land or in inland waters used to farm, culture, hatch, rear, ranch, enhance or breed freshwater fish for commercial or research purposes;fish farm licence means a fish farm licence referred to in section 43 ;fishery means –(a) an area of water or land; and(b) any premises; and(c) a kind or species of fish; and(d) a class of person; and(e) a method of fishing; and(f) a type of activity; and(g) a season;fishery of the State means –(a) a fishery under the control of the Crown; or(b) a fishery under the control of a body established under an Act;fishing includes –(a) taking or attempting to take fish; and(b) searching for fish; and(c) doing any other activity which may reasonably be expected to result in taking or harvesting fish;fishing permit means a permit referred to in section 168 ;freshwater fish means –(a) any kind or species of fish that is ordinarily found in inland waters or during some part of its life is ordinarily found in inland waters; and(b) any kind or species of fish declared to be freshwater fish under section 4 ;imported fish means freshwater fish, other than tinned fish, brought into the State;indigenous fish means a kind or species of fish that is indigenous to inland waters;infringement notice means a notice referred to in Part 6 ;inland waters means –(a) any waters specified in Schedule 1 ; and(b) any waters lying on the landward side of the seaward limit in relation to a river specified in Schedule 2 ; and(c) any waters declared to be inland waters under section 5 ; and(d) any waters in respect of which there is a fish farm licence; and(e) any natural or artificial lake, reservoir, tarn, pond, pool, swamp, marsh, dam or waterhole containing water; and(f) any waters in or running through any canal, raceway, sluice, conduit, duct, channel, pipe or other watercourse; and(g) any waters contained in any hatchery, aquarium, tank, trough or other container of any kind, size or shape;juvenile eel means an eel less than 300mm long;juvenile eel licence means a licence referred to in section 23 ;lake includes a lagoon and any water impounded or enlarged by a dam;licence means any licence in force under this Act;licensed fish farm means a fish farm licensed under Division 3 of Part 3 ;marine farm means a marine farm within the meaning of the Living Marine Resources Management Act 1995 ;mark includes –(a) attach a tag, label or other thing to fish or any wrapping, package, box, can or other container containing fish; and(b) place or enclose fish in any wrapping, package, box, can or other container;marking materials includes –(a) tags, labels or wrappings; and(b) boxes, cans or containers; and(c) any other thing that may be used to mark fish;officer means a person appointed as such under section 20 ;perch means English perch or Redfin perch of the species Perca fluviatilis;private fishery means a fishery that is not a fishery of the State;recreational licence means a licence issued under Division 2 of Part 3 ;registered fish dealer means a person registered under Division 1 of Part 4 ;registered premises means premises registered under Division 2 of Part 4 ;registered private fishery means a fishery registered under Division 3 of Part 4 ;regulations means regulations made under Division 8 of Part 8 ;river includes creek, rivulet and stream;salmon means –(a) fish of the family Salmonidae; and(b) any hybrid between fish of that family and polyploid variants of that fish;[Section 3 Amended by No. 101 of 1999, s. 4, Applied:01 Mar 2000] salmon fishery means a fishery relating to salmon that occur in inland waters;seaward limit means –(a) the seaward limit declared to be the seaward limit under section 6 (1) ; or(b) the seaward limit referred to in section 6 (3) ; or(c) the seaward limit specified in Schedule 2 ;Secretary means the Secretary of the Department;sell includes –(a) dispose by any method for valuable consideration; and(b) barter; and(c) dispose to an agent for sale on consignment; and(d) offer or attempt to sell; and(e) receive or have in possession for sale; and(f) expose for sale; and(g) send or deliver for sale; and(h) cause or permit to be sold, offered or exposed for sale; and(i) dispose by way of raffle, lottery or other game of chance;State waters means the waters referred to in section 7 ;take includes –(a) fish for, remove, gather, catch, capture, kill, destroy, dredge for, raise, collect, carry away or obtain in another way from water, land under water or the foreshore; and(b) land from a boat or bring ashore; and(c) attempt, cause or permit anything mentioned in paragraph (a) or (b) ;tench means the species Tinca tinca of the family Cyprinidae;unclean freshwater fish means any fish that is about to spawn or has recently spawned and has not recovered from spawning;undersized freshwater fish means any fish that is of a less size than the minimum size which may be lawfully taken under the regulations;unseasonable freshwater fish means any fish taken during a period when the taking of the fish is not permitted;warrant means a warrant issued under Division 3 of Part 5 ;whitebait includes any of the following kinds or species of fish:(a) Tasmanian whitebait Lovettia sealii (Johnston);(b) Jollytail Galaxias maculatus (Jenyns);(c) Climbing galaxias Galaxias brevipinnis Gunther;(d) Spotted galaxias Galaxias truttaceus Valenciennes;(e) TasmanianMudfish Galaxias cleaveri Scott;(f) Tasmanian smelt Retropinna tasmanica McCulloch.
(1) The Minister, by order and with the agreement of the Minister responsible for the administration of the Living Marine Resources Management Act 1995 , may declare –(a) fish or a kind or species of fish to be freshwater fish for the purposes of this Act; or(b) freshwater fish or a kind or species of freshwater fish not to be freshwater fish for the purposes of this Act during any time they are outside inland waters.(2) An order under subsection (1) (b) does not apply to salmon in excepted waters.
5. Declaration of inland waters
The Minister, by order and with the agreement of the Minister responsible for the administration of the Living Marine Resources Management Act 1995 , may –(a) declare waters to be inland waters; or(b) declare waters not to be inland waters.
(1) The Minister, by order and with the agreement of the Minister responsible for the administration of the Living Marine Resources Management Act 1995 , may declare any place to be the seaward limit of a river.(2) If the Minister makes an order under subsection (1) , the Minister, in the same order, may amend Schedule 2 by omitting or altering the seaward limit of the river specified in that Schedule which is the subject matter of the order.(3) If the seaward limit of a river has not been declared or specified, the seaward limit of the river is the place where the waters of the river meet the waters of the sea or any harbour or bay at low waters of ordinary spring tides.(4) The Minister is to ensure that the seaward limit of a river is indicated or marked in the prescribed manner.(5) In any proceedings the seaward limit of a river is presumed to be the seaward limit as marked or indicated in the prescribed manner.
State waters are –(a) any waters of the territorial sea of Australia that are –(i) within 3 nautical miles of the baseline by reference to which the territorial limits of Australia are defined for the purposes of international law; and(ii) adjacent to the State; and(b) any marine or tidal waters that are on the landward side of that baseline and are adjacent to the State, except inland waters; and(c) any land which is swept by those waters to the highest landward extent.
The Minister, by order and with the agreement of the Minister responsible for the administration of the Living Marine Resources Management Act 1995 , may declare waters to be excepted waters.[Section 9 Repealed by No. 101 of 1999, s. 5, Applied:01 Mar 2000] . . . . . . . .
10. Inconsistency with Water Act 1957
Any provision of the Water Act 1957 which is inconsistent with a provision of this Act prevails over this Act to the extent of that inconsistency.
PART 2 - Director and Council[Part 2 Substituted by No. 101 of 1999, s. 6, Applied:01 Mar 2000]
Division 1 - Director of Inland Fisheries[Division 1 of Part 2 Inserted by No. 101 of 1999, s. 6, Applied:01 Mar 2000]
[Section 11 Substituted by No. 101 of 1999, s. 6, Applied:01 Mar 2000](1) [Section 11 Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] The Minister may appoint a State Service officer or State Service employee to be Director of Inland Fisheries.(2) [Section 11 Subsection (2) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] A person appointed as Director of Inland Fisheries may hold that office in conjunction with State Service employment.(3) [Section 11 Subsection (3) inserted by No. 103 of 2000, Sched. 1, Applied:13 Dec 2000] Where a person is appointed as Director –(a) he or she is not eligible to become a member of the contributory scheme; and(b) the application of the Public Sector Superannuation Reform Act 1999 extends to the Director as if he or she were an employee for the purposes of that Act; and(c) subject to subsection (4) , he or she is to be a member of the accumulation scheme.(4) [Section 11 Subsection (4) inserted by No. 103 of 2000, Sched. 1, Applied:13 Dec 2000] The Director may elect by notice in writing given to the Secretary, either before or after commencing the duties of that office, to become a member of a complying superannuation scheme other than the accumulation scheme.(5) [Section 11 Subsection (5) inserted by No. 103 of 2000, Sched. 1, Applied:13 Dec 2000] The Director is entitled to employer superannuation contributions at the rate specified in the Public Sector Superannuation Reform Act 1999 .(6) [Section 11 Subsection (6) inserted by No. 103 of 2000, Sched. 1, Applied:13 Dec 2000] Subsections (3) , (4) and (5) do not apply to a person who, immediately before his or her appointment as Director, was a contributor to the contributory scheme.(7) [Section 11 Subsection (7) inserted by No. 103 of 2000, Sched. 1, Applied:13 Dec 2000] Where an election is made under subsection (4) , the Secretary is not required to pay superannuation contributions into a complying superannuation scheme if that scheme does not accept payment by electronic funds transfer.
[Section 12 Substituted by No. 101 of 1999, s. 6, Applied:01 Mar 2000](1) The Director is a corporation sole with the corporate name of "Director of Inland Fisheries".(2) The Director –(a) has perpetual succession and a common seal; and(b) may sue and be sued in the corporate name; and(c) may acquire, hold, dispose of and otherwise deal with property.(3) All courts, judges and persons acting judicially are to –(d) take judicial notice of the common seal of the Director affixed to any document; and(e) assume that it was duly affixed.
13. General powers and functions of Director
[Section 13 Substituted by No. 101 of 1999, s. 6, Applied:01 Mar 2000](1) The Director has the following functions:(a) to manage, control, protect, develop, improve, maintain and regulate salmon fisheries, fisheries in inland waters and freshwater fish;(b) to stock inland waters with fish;(c) to create, improve and maintain access to inland waters;(d) to provide facilities in respect of access to inland waters;(e) to carry out research and investigation into matters relating to salmon fisheries and fisheries in inland waters;(f) to collect, publish and disseminate information relating to freshwater fish and inland waters.(2) The Director may do anything necessary or convenient to perform any function under this Act.(3) The Minister may give directions to the Director relating to the Director's functions and the Director is to comply with those directions.
14. Contracts and arrangements
[Section 14 Substituted by No. 101 of 1999, s. 6, Applied:01 Mar 2000] For the purpose of this Act, the Director may –(a) enter into any contract or agreement with any person or body; or(b) make any arrangement with any person or body.
[Section 15 Substituted by No. 101 of 1999, s. 6, Applied:01 Mar 2000] The Director may give assistance to any person or body by way of a grant or loan or otherwise for any purpose consistent with this Act.
[Section 16 Substituted by No. 101 of 1999, s. 6, Applied:01 Mar 2000](1) The funds of the Director consist of –(a) any money appropriated by Parliament for the purpose of this Act; and(b) any fees payable under this Act; and(c) any money received from the sale of anything forfeited to and sold by the Director; and(d) any other money received by the Director from any other source.(2) One-half of any money received by way of penalties under this Act is payable to the Director.(3) The Director must apply the funds for the following purposes:(a) the payment of expenses, charges and obligations incurred in the administration of this Act;(b) the provision of financial or other assistance for the purpose of this Act;(c) [Section 16 Subsection (3) amended by No. 103 of 2000, Sched. 1, Applied:13 Dec 2000] the payment of remuneration payable to persons employed under section 19 .(4) The Director may invest any of its funds –(a) in accordance with section 6 of the Trustee Act 1898 ; or(b) in any other manner the Treasurer approves.
[Section 17 Subsection (1) amended by No. 62 of 1996, s. 3 and Sched. 1 ][Section 17 Substituted by No. 101 of 1999, s. 6, Applied:01 Mar 2000](1) The Director may establish any account in any financial institution.(2) The Financial Management and Audit Act 1990 applies to the Director as if the Director were an Agency within the meaning of that Act.
[Section 18 Substituted by No. 101 of 1999, s. 6, Applied:01 Mar 2000](1) The Director, in writing, may delegate to any person or body any function or power, other than this power of delegation.(2) The Secretary, in writing, may delegate to any person or body any function or power, other than this power of delegation.
[Section 19 Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] [Section 19 Substituted by No. 101 of 1999, s. 6, Applied:01 Mar 2000] Subject to and in accordance with the State Service Act 2000 , persons may be appointed or employed for the purpose of this Act.
[Section 20 Substituted by No. 101 of 1999, s. 6, Applied:01 Mar 2000](1) [Section 20 Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] The Secretary may appoint a person appointed or employed pursuant to section 19 as an officer for the purpose of this Act.(2) [Section 20 Subsection (2) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] The Secretary may make arrangements with another Head of a State Service Agency for any State Service officer or State Service employee in that Agency to be appointed as an officer for the purpose of this Act.(3) [Section 20 Subsection (3) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] A person appointed under subsection (2) may hold office as an officer in conjunction with State Service employment.(4) The Director is to issue to an officer an identity card in an approved form.
Division 2 - Inland Fisheries Advisory Council[Division 2 of Part 2 Inserted by No. 101 of 1999, s. 6, Applied:01 Mar 2000]
20A. Inland Fisheries Advisory Council
[Section 20A Inserted by No. 101 of 1999, s. 6, Applied:01 Mar 2000](1) The Inland Fisheries Advisory Council is established.(2) The Council consists of not more than 11 persons appointed by the Minister of whom –(a) one is a person representing the interests of freshwater angling associations; and(b) 3 are persons holding angling licences, each of whom represents one of the following:(i) the northern area;(ii) the north-western area;(iii) the southern area; and(c) one is a person representing the interests of freshwater commercial fisheries; and(d) one is a person with expertise in the area of conservation of freshwater ecosystems; and(e) one is a person with expertise in the area of tourism relating to inland fisheries; and(f) one is the Director; and(g) one is the chairperson; and(h) not more than 2 are persons with expertise the Minister considers appropriate.(3) Schedule 3 has effect with respect to membership and meetings of the Council.
20B. General functions and powers of Council
[Section 20B Inserted by No. 101 of 1999, s. 6, Applied:01 Mar 2000](1) The Council has the following functions:(a) to advise the Minister on any matter under this Act;(b) to advise the Minister on any matters referred to it by the Minister;(c) to provide a forum for consultation on policy matters;(d) to advise the Minister on the functions of the Director as they relate to public expectations;(e) to promote understanding and acceptance of the functions of the Director;(f) to encourage community support for fisheries management activities;(g) to review management plans for inland fisheries.(2) The Council may do anything necessary or convenient to perform its functions.
PART 3 - Licences
Division 1 - Commercial licences
21. Commercial fishing licence
(1) A person must not take freshwater fish for commercial purposes without a commercial fishing licence.Penalty: Fine not exceeding 100 penalty units.(2) A person is to apply for a commercial fishing licence in accordance with section 24 .
22. Assistant fisher's licence
(1) A person must not assist the holder of a commercial fishing licence without an assistant fisher's licence.Penalty: Fine not exceeding 10 penalty units.(2) A person is to apply for an assistant fisher's licence in accordance with section 24 .
(1) A person must not take any juvenile eel without –(a) a juvenile eel licence; or(b) [Section 23 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] the written consent of the Director to take the juvenile eel; or(c) an authorisation under subsection (2) .Penalty: Fine not exceeding 1 000 penalty units.(2) The holder of a juvenile eel licence may authorise a person to carry out any activity under the licence on behalf of the holder by written notice which –(a) states the name and address of that person; and(b) [Section 23 Subsection (2) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] is given to the Director at least 7 days before that person is to carry out any activity.(3) A person is to apply for a juvenile eel licence in accordance with section 24 .
24. Application for commercial licence
(1) An application for the grant, variation, renewal, transfer or replacement of a commercial licence is to –(a) be in an approved form; and(b) [Section 24 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] contain any information the Director requires; and(c) be accompanied by the prescribed fee; and(d) [Section 24 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] be lodged with the Director.(2) [Section 24 Subsection (2) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director may require a person to–(a) [Section 24 Subsection (2) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] provide any further information the Director determines; and(b) verify by statutory declaration any information given in connection with an application.
25. Grant of commercial licence
(1) [Section 25 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director may–(a) [Section 25 Subsection (1) amended by No. 101 of 1999, Sched. 3, Applied:01 Mar 2000] grant an application for a commercial licence subject to any condition the Director determines; or(b) refuse to grant an application.(2) [Section 25 Subsection (2) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director may only grant an application for a commercial licence if satisfied that–(a) the applicant has complied with this Act; and(b) the applicant is not otherwise disqualified from holding the licence.(3) A person must comply with a condition of a commercial licence.Penalty: Fine not exceeding 100 penalty units.(4) [Section 25 Subsection (4) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director, by notice in writing, is to notify the applicant of the grant or refusal to grant the application.
26. Issue of commercial licence
(1) [Section 26 Subsection (1) amended by No. 101 of 1999, Sched. 3, Applied:01 Mar 2000] If the Director grants an application for a commercial licence, the Director is to issue the licence on payment of the prescribed fee.(2) A commercial licence is to –(a) be in an approved form; and(b) specify the full name and address of the holder of the licence; and(c) specify the period for which it is in force; and(d) [Section 26 Subsection (2) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] specify any condition the Director determines under section 25 ; and(e) be signed in ink by the holder of the licence.(3) [Section 26 Subsection (3) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] A commercial licence that is not issued by the Director is of no effect.(4) [Section 26 Subsection (4) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] A person, other than the Director, must not issue a commercial licence.Penalty: Fine not exceeding 10 penalty units.
27. Period of commercial licence
A commercial licence is in force for the period specified in the licence, unless sooner cancelled.
28. Sale of commercial licences
(1) [Section 28 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director may sell a commercial licence to any person the Director determines.(2) [Section 28 Subsection (2) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director may determine the price for the sale of a commercial licence by either or both of the following:(a) the process of tender;(b) [Section 28 Subsection (2) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] any other process the Director considers appropriate.(3) [Section 28 Subsection (3) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] If the Director sells a commercial licence to a person to take fish, the Director may–(a) prohibit other persons from taking the kind or species of fish to which the licence relates; or(b) [Section 28 Subsection (3) amended by No. 101 of 1999, Sched. 3, Applied:01 Mar 2000] issue a licence to take the kind or species of fish to which the licence relates subject to any condition, restriction or limitation the Director determines.
29. Variation of commercial licence
(1) [Section 29 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director, by notice in writing served on the holder of a commercial licence, may vary a commercial licence by amending, omitting, substituting or adding to any condition of the licence.(2) A person must comply with a condition of a licence as varied.Penalty: Fine not exceeding 100 penalty units.(3) The variation of a commercial licence takes effect on a date not earlier than 28 days after service of the notice under subsection (1) if –(a) an appeal is not made under section 58 or an appeal is abandoned; or(b) an appeal is made under section 58 and the Appeal Tribunal makes an order under section 59 (2) (a) .(4) [Section 29 Subsection (4) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director may vary a commercial licence on application and on payment of the prescribed fee.
[Section 30 Amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] If the Director varies a commercial licence, the Director–(a) may require the holder of the licence to return it; and(b) is to serve notice on the holder of the licence of the variation and the date of its effect; and(c) may issue a substitute licence containing any new conditions.
31. Transfer of commercial licence
(1) [Section 31 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The holder of a commercial licence may apply to the Director for approval to transfer the licence.(2) [Section 31 Subsection (2) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director, on payment of the prescribed fee, may approve the transfer of the licence if satisfied that–(a) the holder has complied with the conditions of the licence; and(b) the appropriate fees have been paid; and(c) the person to whom the licence is to be transferred has not been convicted of an offence under this Act; and(d) it is appropriate to do so.(3) [Section 31 Subsection (3) amended by No. 101 of 1999, Sched. 3, Applied:01 Mar 2000] The Director may approve the transfer of the licence subject to any condition the Director determines.(4) [Section 31 Subsection (4) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director may refuse to approve the transfer of the licence if not satisfied as required under subsection (2) .(5) [Section 31 Subsection (5) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director, by notice in writing, is to notify the holder of the licence of the approval or refusal to approve the transfer of the licence.
32. Renewal of commercial licence
(1) [Section 32 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The holder of a commercial licence may apply to the Director for the renewal of the licence.(2) [Section 32 Subsection (2) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director may–(a) grant an application to renew the licence; or(b) refuse to grant the application.(3) [Section 32 Subsection (3) amended by No. 101 of 1999, s. 7, Applied:01 Mar 2000] In exercising any power under subsection (2) , the Director must take into account whether or not–(a) the holder has complied with the conditions of the licence; and(b) the holder has not been convicted of an offence under this Act; and(c) the appropriate fees have been paid.(4) [Section 32 Subsection (4) substituted by No. 101 of 1999, s. 7, Applied:01 Mar 2000] The Director may impose any condition on the renewed licence the Director determines.(5) [Section 32 Subsection (5) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director, by notice in writing, is to notify the holder of the licence of the renewal or refusal to renew the licence.
33. Cancellation of commercial licence
(1) [Section 33 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director, by notice in writing served on the holder of a commercial licence, may cancel the licence if the holder–(a) fails to comply with a condition of the licence; or(b) is convicted of an offence under this Act.(2) The cancellation of a commercial licence takes effect on a date not earlier than 28 days after service of the notice under subsection (1) if –(a) an appeal is not made under section 58 or an appeal is abandoned; or(b) an appeal is made under section 58 and the Appeal Tribunal makes an order under section 59 (1) (a) .(3) A person whose commercial licence has been cancelled is not entitled to compensation or a refund in respect of any matter arising from the cancellation.
34. Surrender of commercial licence
(1) [Section 34 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The holder of a commercial licence, by notice in writing to the Director, may surrender the licence.(2) A commercial licence ceases to have effect –(a) on the date specified in the notice; or(b) if a date is not specified, on the date of receipt of the notice.(3) A person who surrenders a commercial licence is not entitled to any compensation or refund in respect of any matter arising from the surrender.
(1) [Section 35 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The holder of a commercial licence is to submit a return to the Director in an approved form when required by the Director to do so.(2) A return is to specify –(a) [Section 35 Subsection (2) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] any details and information the Director requires; and(b) any other prescribed details and information.
36. Disqualification from applying for or obtaining licence
[Section 36 Amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director may determine that a person who is convicted of an offence under this Act is disqualified from applying for and obtaining a commercial licence for a specified period.
Division 2 - Recreational licences
(1) A person must not take acclimatised fish or indigenous fish without an angling licence.Penalty: In the case of –(a) a first offence, a fine not less than 2 penalty units and not more than 5 penalty units together with a special penalty of 0·5 penalty unit for each fish; and(b) a subsequent offence, a fine not less than 5 penalty units and not more than 10 penalty units together with a special penalty of 0·5 penalty unit for each fish.(2) A person must not possess any assembled rod, reel and line at any inland waters during a period when the taking of acclimatised fish is permitted without an angling licence.Penalty: In the case of –(a) a first offence, a fine not less than 2 penalty units and not more than 5 penalty units together with a special penalty of 0·5 penalty unit for each fish; and(b) a subsequent offence, a fine not less than 5 penalty units and not more than 10 penalty units together with a special penalty of 0·5 penalty unit for each fish.(3) Subsection (1) does not apply –(a) to a person taking indigenous fish in prescribed rivers; or(b) to a person taking fish in a prescribed manner or by any prescribed means; or(c) to a person taking fish in State waters other than salmon in excepted waters; or(d) to a person or class of person exempted under subsection (4) .(4) [Section 37 Subsection (4) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director, by notice in writing, may exempt a person or class of person from this section in relation to any specified waters and subject to any specified condition.(5) [Section 37 Subsection (5) amended by No. 101 of 1999, s. 8, Applied:01 Mar 2000] A person is to apply to a person authorised under subsection (7) for an angling licence in an approved form accompanied by the prescribed fee.(6) An angling licence is to –(a) be in an approved form; and(b) specify the full name and address of the holder of the licence; and(c) specify the period for which it is in force; and(d) be signed in ink by the holder of the licence.(7) [Section 37 Subsection (7) inserted by No. 101 of 1999, s. 8, Applied:01 Mar 2000] The Director may authorise a person to issue angling licences.(8) [Section 37 Subsection (8) inserted by No. 101 of 1999, s. 8, Applied:01 Mar 2000] A person authorised under subsection (7) is to issue an angling licence to an applicant on receipt of the application and payment of the prescribed fee.
(1) A person must not take or possess whitebait without a whitebait licence.(2) A whitebait licence does not confer the right to sell any whitebait.(3) [Section 38 Subsection (3) amended by No. 101 of 1999, s. 9, Applied:01 Mar 2000] A person is to apply to a person authorised under subsection (5) for a whitebait licence in an approved form accompanied by the prescribed fee.(4) A whitebait licence is to –(a) be in an approved form; and(b) specify the full name and address of the holder of the licence; and(c) specify the period for which it is in force; and(d) be signed in ink by the holder of the licence.(5) [Section 38 Subsection (5) inserted by No. 101 of 1999, s. 9, Applied:01 Mar 2000] The Director may authorise a person to issue whitebait licences.(6) [Section 38 Subsection (6) inserted by No. 101 of 1999, s. 9, Applied:01 Mar 2000] A person authorised under subsection (5) is to issue a whitebait licence to an applicant on receipt of the application and payment of the prescribed fee.
38A. Disqualification from applying for or obtaining recreational licence
[Section 38A Inserted by No. 58 of 2000, s. 4, Applied:19 Sep 2000](1) The Director, by notice in writing, may disqualify a person who is convicted of an offence under this Act from applying for and obtaining a recreational licence for a specified period not exceeding 5 years.(2) A notice is to be sent by normal post to the person's last known address.(3) A disqualification takes effect on a date not earlier than 28 days after the date of the notice if –(a) an appeal is not made under section 58(1)(ea) or the appeal is made but abandoned; or(b) an appeal is made under section 58(1)(ea) and the Appeal Tribunal makes an order under section 59(3A)(a) .(4) A recreational licence held by a person disqualified under subsection (1) ceases to have effect 7 days after the disqualification takes effect.(5) A recreational licence obtained by a person disqualified under subsection (1) during the period of that disqualification is invalid.(6) In any proceedings for an offence under this Act, a copy of the notice is evidence of the fact that the notice was duly sent.
Division 3 - Fish farm licences
The Minister, by order, may declare any kind or species of freshwater fish to be fish to which this Division applies.
40. Application for fish farm licence
(1) A person must not operate a fish farm without a fish farm licence.Penalty: Fine not exceeding 100 penalty units.(2) An application for a fish farm licence is to –(a) be in an approved form; and(b) [Section 40 Subsection (2) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] contain any relevant information the Minister or the Director requires; and(c) be accompanied by the prescribed fee; and(d) [Section 40 Subsection (2) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] be lodged with the Director.(3) [Section 40 Subsection (3) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Minister or the Director may require a person to–(a) [Section 40 Subsection (3) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] provide any further relevant information the Minister or the Director determines; and(b) verify by statutory declaration any information given in connection with an application.
41. Grant of fish farm licence
(1) [Section 41 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] Subject to subsection (2) , the Minister, after consulting with the Director, may grant an application for a fish farm licence if satisfied that the applicant–(a) has complied with this Act; and(b) is not otherwise disqualified from holding the licence.(2) The Minister must not grant an application for a fish farm licence relating to Atlantic salmon without the agreement of the Minister responsible for the administration of the Living Marine Resources Management Act 1995 .(3) The Minister may refuse to grant an application for a fish farm licence if not satisfied as required under subsection (1) .(4) The Minister, by notice in writing, is to notify the applicant of the grant or refusal to grant the application.
42. Conditions of fish farm licence
(1) Subject to subsection (3) , the Minister may grant an application for a fish farm licence subject to any condition the Minister considers necessary or desirable.(2) The Minister, by notice in writing served on the holder of the licence, may vary, amend, omit, substitute or add any condition of a fish farm licence.(3) The Minister must not impose, vary, amend, omit, substitute or add any condition of a fish farm licence relating to Atlantic salmon without the agreement of the Minister responsible for the administration of the Living Marine Resources Management Act 1995 .(4) A person must comply with a condition of a fish farm licence.Penalty: Fine not exceeding 100 penalty units.
43. Issue of fish farm licence
(1) If the Minister grants an application for a fish farm licence, the Minister is to issue the licence on payment of the prescribed fee.(2) A fish farm licence is to specify –(a) the full name and address of the holder of the licence; and(b) the fishery to which it relates or the waters or premises in which the fishery is contained or to be established; and(c) the declared fish to which it relates; and(d) any premises used or intended to be used in connection with the production, storage, treatment or disposal of fish from the fishery; and(e) any conditions the Minister determines under section 42 ; and(f) the period for which it is in force.(3) A fish farm licence which is not issued by the Minister or does not comply with subsection (2) is of no effect.
44. Period of fish farm licence
A fish farm licence is in force for the period, not exceeding 20 years, specified in the licence, unless sooner cancelled.
45. Variation of fish farm licence
(1) [Section 45 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] Subject to subsections (6) and (7) , the Minister, after consulting with the Director, may decide to vary a fish farm licence.(2) Before varying a fish farm licence, the Minister is to serve a notice on the holder of the licence stating –(a) the proposed variation; and(b) that the holder may make oral or written representations in respect of the proposed variation; and(c) the period during which representations may be made.(3) The period during which representations may be made is to be at least 28 days from the date of service of the notice.(4) After taking into account any representations, the Minister may vary a fish farm licence by serving notice on the holder of the licence stating –(a) any variation made; and(b) the date on which any variation takes effect.(5) A variation of a fish farm licence takes effect –(a) on a date not earlier than 28 days after service of the notice under subsection (4) if –(i) an appeal is not made under section 58 or an appeal is abandoned; or(ii) an appeal is made under section 58 and the Appeal Tribunal makes an order under section 59 (2) (a) ; or(b) on an earlier date with the agreement of the holder of the licence.(6) The Minister must not vary a fish farm licence relating to Atlantic salmon without the agreement of the Minister responsible for the administration of the Living Marine Resources Management Act 1995 .(7) The Minister must not vary a fish farm licence by reducing the level of production of Atlantic salmon unless the Minister is satisfied that –(a) there are environmental constraints on the continued production at that level; or(b) [Section 45 Subsection (7) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] after consultation with the Director and the Minister responsible for the administration of the Living Marine Resources Management Act 1995 , that an emergency exists.
46. Transfer of fish farm licence
(1) The holder of a fish farm licence may apply to the Minister for approval to transfer the licence.(2) The Minister, on payment of the prescribed fee, may approve the transfer of the licence if satisfied that –(a) the holder of the licence has complied with the conditions of the licence; and(b) the person to whom the licence is to be transferred has not been convicted of an offence under this Act; and(c) it is appropriate to do so.(3) The Minister may approve the transfer of a fish farm licence subject to any condition the Minister determines.(4) The Minister may refuse to approve the transfer of the licence if not satisfied as required under subsection (2) .(5) The Minister, by notice in writing, is to notify the holder of the licence of the approval or refusal to approve the transfer of the licence.
47. Renewal of fish farm licence
(1) The holder of a fish farm licence may apply to the Minister for the renewal of the licence.(2) Subject to subsection (4) , the Minister, on payment of the prescribed fee, must renew a fish farm licence if satisfied that –(a) the applicant has complied with the conditions of the licence in the previous 5 years; and(b) the holder of the licence has not been convicted of any offence under this or any other Act which the Minister considers relevant to the holding of a licence; and(c) the applicant is not disqualified from holding the licence; and(d) there are no environmental or resource constraints on doing so; and(e) the applicant is a fit and proper person to hold the licence; and(f) the applicant has paid the appropriate fees and charges; and(g) it is appropriate to do so.(3) The Minister may impose any condition on the renewed licence the Minister determines.(4) The Minister must not renew a fish farm licence relating to Atlantic salmon without the agreement of the Minister responsible for the administration of the Living Marine Resources Management Act 1995 .(5) The Minister may refuse to renew a fish farm licence if not satisfied as required under subsection (2) .(6) The Minister, by notice in writing, is to notify the holder of the licence of the renewal or refusal to renew the licence.
48. Cancellation of fish farm licence
(1) [Section 48 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Minister, after consulting with the Director, may decide to cancel a fish farm licence if satisfied that–(a) the kind or species of fish to which the licence relates are not being produced in the quantities as to warrant the continuance of the licence; or(b) the holder of the licence has no substantial interest in the fishery to which it relates; or(c) any condition of the licence has not been complied with; or(d) the holder of the licence has been convicted of an offence under this Act.(2) The Minister must not decide to cancel a fish farm licence relating to Atlantic salmon without the agreement of the Minister responsible for the administration of the Living Marine Resources Management Act 1995 .(3) Before cancelling a fish farm licence, the Minister is to serve a notice on the holder of the licence stating –(a) the grounds on which the licence is to be cancelled; and(b) that the holder may make oral or written representations in respect of the cancellation; and(c) the period during which representations may be made.(4) The period during which representations may be made is to be at least 28 days from the date of service of the notice.(5) After taking into account any representations, the Minister may cancel a fish farm licence by serving notice on the holder of the licence stating the date on which the cancellation takes effect.(6) The cancellation of a fish farm licence takes effect –(a) on a date not earlier than 28 days after service of the notice under subsection (5) if –(i) an appeal is not made under section 58 or an appeal is abandoned; or(ii) an appeal is made under section 58 and the Appeal Tribunal makes an order under section 59 (1) (a) ; or(b) on an earlier date with the agreement of the holder of the licence.(7) A person whose fish farm licence has been cancelled is not entitled to compensation or a refund in respect of any matter arising from the cancellation.
49. Surrender of fish farm licence
(1) The holder of a fish farm licence, by notice in writing to the Minister, may surrender the licence.(2) A fish farm licence ceases to have effect –(a) on the date specified in the notice; or(b) if a date is not specified, on the date of receipt of the notice.(3) A person who surrenders a fish farm licence is not entitled to any compensation or refund in respect of any matter arising from the surrender.
50. Disqualification from applying for or obtaining licence
[Section 50 Amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director may determine that a person who is convicted of an offence under this Act is disqualified from applying for and obtaining a fish farm licence for a specified period.
51. Records relating to declared fish
(1) The holder of a fish farm licence is to keep records relating to –(a) declared fish removed from the fish farm to which the licence relates; and(b) declared fish produced in that fish farm.(2) Records under subsection (1) are to –(a) be kept in an approved form and manner; and(b) state the following in respect of declared fish in the fish farm:(i) the date on which the fish were removed;(ii) the nature of the packages or containers in which they were removed;(iii) the place or premises to which they were removed;(iv) the name and address of any person to whom the fish were sold or delivered;(v) the number of fish produced or removed;(vi) the species of fish produced or removed;(vii) the size and weight of fish produced or removed;(viii) the prices received for the fish.(3) [Section 51 Subsection (3) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The holder of a fish farm licence must give the Director any records kept under this section as the Director requires.Penalty: Fine not exceeding 10 penalty units.
Division 4 - General provisions
(1) [Section 52 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] A person may apply to the Director for the replacement of any licence if the original licence is lost or destroyed.(2) [Section 52 Subsection (2) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director, on payment of the prescribed fee and if satisfied that an original licence is lost or destroyed, is to issue a replacement licence.(3) A replacement licence –(a) is subject to the same conditions as the original licence; and(b) is in force for the same period as the original licence; and(c) must be clearly marked as being a replacement licence.
The holder of any licence must produce the licence to an officer within 14 days after the officer requires the production.Penalty: Fine not exceeding 1 penalty unit.
54. Production of other person's licence
A person who is not the holder of any licence must not –(a) produce to an officer a licence of another person; or(b) falsely represent to an officer that he or she is the holder of the licence.Penalty: Fine not exceeding 3 penalty units.
The holder of a licence must not –(a) lend the licence to another person; or(b) cause or permit the licence to be used in a way which is likely to deceive an officer.Penalty: Fine not exceeding 3 penalty units.
(1) A licence has no effect unless any fees payable in respect of the licence have been paid.(2) A licence which is not signed in ink by the holder is of no effect.
57. Death of holder of licence
If the holder of a commercial licence or a fish farm licence dies, the licence continues in force as if it had been transferred to the executor or administrator of the holder's estate.
(1) A person may appeal, in an approved form, to the Appeal Tribunal against any of the following:(a) the refusal to grant a commercial licence;(b) the variation of a commercial licence;(c) the refusal to approve the transfer of a commercial licence;(d) the refusal to renew a commercial licence;(e) the cancellation of a commercial licence;(ea) [Section 58 Subsection (1) amended by No. 58 of 2000, s. 5, Applied:19 Sep 2000] the disqualification from applying for and obtaining a recreational licence;(f) the refusal to grant a fish farm licence;(g) the variation of a fish farm licence;(h) the refusal to approve the transfer of a fish farm licence;(i) the refusal to renew a fish farm licence;(j) the cancellation of a fish farm licence.(2) An appeal is to be instituted within 28 daysafter service of a notice under –(a) section 25 (4) for an appeal under subsection (1) (a) ; or(b) section 29 (1) for an appeal under subsection (1) (b) ; or(c) section 31 (5) for an appeal under subsection (1) (c) ; or(d) section 32 (5) for an appeal under subsection (1) (d) ; or(e) section 33 (1) for an appeal under subsection (1) (e) ; or(f) section 41 (4) for an appeal under subsection (1) (f) ; or(g) section 45 (4) for an appeal under subsection (1) (g) ; or(h) section 46 (5) for an appeal under subsection (1) (h) ; or(i) section 47 (6) for an appeal under subsection (1) (i) ; or(j) section 48 (5) for an appeal under subsection (1) (j) .(3) [Section 58 Subsection (3) inserted by No. 58 of 2000, s. 5, Applied:19 Sep 2000] An appeal under subsection (1)(ea) is to be instituted within 28 days after the date of a notice sent under section 38A .
(1) On the hearing of an appeal against the cancellation of a licence, the Appeal Tribunal may –(a) dismiss the appeal; or(b) revoke the cancellation if satisfied that –(i) substantial grounds for the cancellation do not exist; or(ii) undue hardship would result from the cancellation and the continuance of the licence would not be contrary to the public interest.(2) On the hearing of an appeal against the variation of a licence, the Appeal Tribunal may –(a) dismiss the appeal; or(b) revoke the variation; or(c) revoke the variation and substitute any other variation.(3) On the hearing of an appeal against the refusal to grant, renew or approve the transfer of, a licence, the Appeal Tribunal may –(a) dismiss the appeal; or(b) revoke the refusal if satisfied that –(i) substantial grounds for the refusal do not exist; or(ii) undue hardship would result from the refusal and the grant, renewal or approval would not be contrary to the public interest.(3A) [Section 59 Subsection (3A) inserted by No. 58 of 2000, s. 6, Applied:19 Sep 2000] On the hearing of an appeal against a disqualification from applying for and obtaining a recreational licence, the Appeal Tribunal may –(a) dismiss the appeal; or(b) revoke the disqualification if satisfied that –(i) substantial grounds for the disqualification do not exist; or(ii) undue hardship would result from the disqualification.(4) The decision of the Appeal Tribunal on the hearing of an appeal is final.
PART 4 - Registration Provisions
Division 1 - Dealing with freshwater fish
60. Declaration of applicable fish
The Minister, by order, may declare any kind or species of freshwater fish to be applicable fish to which this Division applies.
A person deals with applicable fish if the person –(a) sells the fish; or(b) processes or treats the fish for the purpose of sale; or(c) manufactures or obtains any substance from the fish for the purpose of sale.
62. Registration as fish dealer
(1) A person must not deal with applicable fish unless the person is registered as a fish dealer.Penalty: Fine not exceeding 10 penalty units.(2) The Minister, by notice in the Gazette, may exempt a person or class of person from any provision of this Division –(a) in respect of any specified kind or species of fish; or(b) in any specified circumstances.(3) [Section 62 Subsection (3) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] A person may apply to the Director in accordance with section 76 for registration as a fish dealer.
63. Granting of registration as fish dealer
(1) [Section 63 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director may–(a) [Section 63 Subsection (1) amended by No. 101 of 1999, Sched. 3, Applied:01 Mar 2000] grant an application for registration as a fish dealer subject to any condition the Director determines; or(b) refuse to grant the application.(2) [Section 63 Subsection (2) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] In granting an application to a person, the Director may require the person to deal with applicable fish only from premises specified in the certificate of registration issued under section 64 .
64. Certificate of registration as fish dealer
(1) [Section 64 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] If the Director grants an application to a person under section 63 , the Director, on payment of the prescribed fee, is to issue to the person a certificate of registration as a fish dealer.(2) A certificate of registration is to –(a) be in an approved form; and(b) specify the following:(i) the full name and address of the applicant;(ii) the particulars of any premises used by the person in dealing with applicable fish;(iii) any condition to which the registration is subject;(iv) the date of issue of the certificate.
Division 2 - Fish importers
(1) A person must notsell imported fish from premises which are not registered under this Division.Penalty: Fine not exceeding 10 penalty units.(2) Fish cease to be imported fish when they are first sold after they have been brought into the State.(3) [Section 65 Subsection (3) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] A person may apply to the Director in accordance with section 76 for the registration of premises intended to be used in connection with the sale of imported fish.
66. Granting of registration of premises
[Section 66 Amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director may–(a) [Section 66 Amended by No. 101 of 1999, Sched. 3, Applied:01 Mar 2000] grant an application for the registration of premises subject to any condition the Director determines; or(b) refuse to grant the application.
67. Certificate of registration of premises
(1) [Section 67 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] If the Director grants an application to a person under section 66 , the Director, on payment of the prescribed fee, is to issue to the person a certificate of registration of premises used for the sale of imported fish.(2) A certificate of registration is to –(a) be in an approved form; and(b) specify the following:(i) the full name and address of the applicant;(ii) the particulars of the premises to which it relates;(iii) any condition to which the registration is subject;(iv) the date of issue of the certificate.
68. Change of ownership of registered premises
(1) [Section 68 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The owner of registered premises must notify the Director of a change of ownership of the premises.(2) If there is a change of ownership of registered premises and a notification is not made under subsection (1) , the registration of the premises is cancelled.(3) [Section 68 Subsection (3) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director, on being notified of a change of ownership of registered premises, is to endorse the certificate of registration issued under section 67 accordingly.
Division 3 - Private fisheries
69. Registration of private fishery
[Section 69 Amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] A person may apply to the Director in accordance with section 76 for the registration of a private fishery.
70. Granting of registration of private fishery
[Section 70 Amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director may–(a) [Section 70 Amended by No. 101 of 1999, Sched. 3, Applied:01 Mar 2000] grant an application for the registration of a private fishery subject to any condition the Director determines; or(b) refuse to grant the application.
71. Certificate of registration of private fishery
(1) [Section 71 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] If the Director grants an application to a person under section 70 , the Director, on payment of the prescribed fee, is to issue to the person a certificate of registration of a private fishery.(2) A certificate of registration is to –(a) be in an approved form; and(b) specify the following:(i) the full name and address of the applicant;(ii) the particulars of the fishery to which it relates;(iii) any condition to which the registration is subject;(iv) the date of issue of the certificate.
The registration of a private fishery is in force for a period of 12 months after the date of issue of the certificate of registration.
73. Duties of owner of registered fishery
(1) [Section 73 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The owner of a registered private fishery must, as soon as practicable, notify the Director–(a) of any unusual mortality among fish in the fishery; or(b) of any disease in the fish in the fishery.Penalty: Fine not exceeding 10 penalty units.(2) [Section 73 Subsection (2) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The owner of a registered private fishery must ensure that any barriers or screens required by the Director to prevent fish swimming into or out of the fishery are provided and maintained in an approved manner.Penalty: Fine not exceeding 10 penalty units and a daily fine not exceeding 1 penalty unit.(3) [Section 73 Subsection (3) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The owner of a registered private fishery, without the written consent of the Director, must not–(a) extend or alter the fishery; or(b) change the site of the fishery.Penalty: Fine not exceeding 10 penalty units.
74. Change of ownership of registered fishery
(1) [Section 74 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The owner of a registered private fishery must notify the Director of a change of ownership of the fishery.Penalty: Fine not exceeding 10 penalty units.(2) If there is a change of ownership of a registered private fishery and a notification is not made under subsection (1) , the registration of that fishery is cancelled.(3) [Section 74 Subsection (3) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director, on being notified of a change of ownership of a registered private fishery is to endorse the certificate of registration issued under section 71 accordingly.
(1) An officer may enter a registered private fishery to –(a) inspect the fishery; and(b) sample, treat, remove or destroy any diseased or unhealthy fish.(2) An officer may order the owner of a registered private fishery to –(a) cause any diseased or unhealthy fish to be treated, removed or destroyed; or(b) cause the fishery to be drained and cleaned.(3) A person must comply with an order under subsection (2) within any period specified in the order.Penalty: Fine not exceeding 10 penalty units and a daily fine not exceeding 1 penalty unit.
Division 4 - General provisions
76. Applications for registration
An application under this Part is to –(a) be in an approved form; and(b) [Section 76 Amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] contain any particulars the Director requires; and(c) be accompanied by the prescribed fee; and(d) [Section 76 Amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] be lodged with the Director.
(1) [Section 77 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] A person may apply to the Director in accordance with section 76 for the renewal of–(a) the registration as a registered fish dealer; or(b) the registration of premises; or(c) the registration of a private fishery.(2) [Section 77 Subsection (2) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director may–(a) [Section 77 Subsection (2) amended by No. 101 of 1999, Sched. 3, Applied:01 Mar 2000] grant an application subject to any condition the Director determines; or(b) refuse to grant the application.(3) [Section 77 Subsection (3) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] If the Director grants an application to a person, the Director, on payment of the prescribed fee, is to issue to the person a certificate of registration in accordance with section 64 , 67 or 71 .
(1) [Section 78 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] A person may apply to the Director in accordance with section 76 to transfer the registration as a registered fish dealer to another person.(2) [Section 78 Subsection (2) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director may–(a) [Section 78 Subsection (2) amended by No. 101 of 1999, Sched. 3, Applied:01 Mar 2000] grant an application subject to any condition the Director determines; or(b) refuse to grant the application.(3) [Section 78 Subsection (3) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] If the Director grants an application, the Director, on payment of the prescribed fee, is to–(a) transfer the registration; and(b) endorse on the certificate of registration issued under section 64 the name and address of the person to whom the registration has been transferred; and(c) amend the relevant register referred to in section 196 accordingly.
79. Cancellation of registration
(1) [Section 79 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director, by notice in writing served on the person who is granted a registration under this Part, may cancel the registration if–(a) [Section 79 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] the Director is satisfied that the person has failed to comply with a condition of the registration; or(b) the person to whom the registration relates is convicted of an offence under this Act; or(c) [Section 79 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] the Director is satisfied that the premises or the fishery to which the registration relates are not being used for the purpose for which the registration was granted.(2) [Section 79 Subsection (2) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] If the Director cancels a registration, a person is disqualified from applying again for the cancelled registration for any period, not exceeding 5 years, the Director determines.(3) [Section 79 Subsection (3) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] A person may cancel a registration by notice in writing lodged with the Director.(4) The cancellation of a registration takes effect on a date not earlier than 28 days after service of a notice under subsection (1) if –(a) an appeal is not made under section 81 or an appeal is abandoned; or(b) an appeal is made under section 81 and the Appeal Tribunal makes an order under section 81 (3) (a) .
[Section 80 Amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] A person must surrender to the Director a certificate of registration in respect of a registration cancelled under this Part.Penalty: Fine not exceeding 5 penalty units.
81. Appeal against cancellation of registration
(1) A person may appeal to the Appeal Tribunal against the cancellation of a registration under this Part.(2) An appeal is to be –(a) in an approved form; and(b) instituted within 28 days after service of a notice under section 79 (1) .(3) On the hearing of an appeal, the Appeal Tribunal may –(a) dismiss the appeal; or(b) revoke the cancellation if satisfied that –(i) substantial grounds for the cancellation do not exist; or(ii) undue hardship would result from the cancellation and the continuance of the registration would not be contrary to the public interest.
(1) A person who sells imported fish is to keep records relating to imported fish on or at the registered premises.(2) A registered fish dealer is to keep records relating to dealings with fish.(3) The owner of a registered private fishery is to keep records relating to the management of the fishery.(4) Records are to –(a) be kept in an approved form and manner; and(b) [Section 82 Subsection (4) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] contain any relevant information that the Director requires.(5) [Section 82 Subsection (5) amended by No. 101 of 1999, Sched. 3, Applied:01 Mar 2000] The Director may require any records to be made available to the Director on request.(6) A person must not fail to comply with this section.Penalty: Fine not exceeding 10 penalty units.
[Section 83 Amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] A registered fish dealer or a person who sells imported fish must notify the Director in writing of any of the following:(a) any change of name or address;(b) any change in the particulars of any premises–(i) on or at which the person deals with fish; or(ii) from which the person sells imported fish.Penalty: Fine not exceeding 5 penalty units.
PART 5 - Powers of Officers
Division 1 - General powers
An officer, in performing any functions under this Act, has the powers and protection of a member of the police force with the rank of constable.
85. Production of identity card
(1) An officer, if required by a person in relation to whom the officer is exercising or intends to exercise a power under this Act, must produce his or her identity card for inspection by that person.(2) If an officer fails to produce his or her identity card when required by a person to do so, the person is not guilty of –(a) hindering or obstructing the officer; or(b) failing to comply with a requirement or an order of the officer.
(1) A police officer has the powers of an officer under this Act.(2) It is not necessary for a police officer exercising any power as an officer under this Act to produce any authority other than what is required as a police officer.
(1) For the purpose of exercising a power under this Act, an officer may require a person to assist in any way the officer considers necessary.(2) A person is not liable for anything done or omitted to be done by that person in good faith in assisting an officer.
Division 2 - Entry, inspection and search
88. Entry and inspection of land and waters
(1) For the purpose of this Act, an officer may at any reasonable time –(a) enter into and pass through land; and(b) enter into and pass through or along the banks or borders of any State waters or inland waters; and(c) enter into and examine any reservoir, sluice, millpool, millrace, dam, fish-pass, watercourse and channel; and(d) enter into and inspect any land or premises to ascertain if this Act or the conditions of any licence or registration under this Act are being complied with; and(e) enter any premises where records are required to be kept and inspect those records.(2) An officer, without a warrant, must not enter –(a) a garden enclosed with a wall or fence; or(b) a dwelling house; or(c) a curtilage of a dwelling house.(3) Subsection (2) (a) and (c) does not apply if the ordinary passage of any waters is through the garden or curtilage.
An officer who reasonably believes that a person has committed or is about to commit an offence under this Act may enter and search any premises –(a) under a warrant; or(b) with the consent of the occupier of the premises; or(c) if the officer has pursued the person without interruption from the place, or near the place, where the offence was believed to have been committed to the premises being searched.
90. Entry and inspection of premises
(1) An officer, at any reasonable time, may enter and inspect any place where fish are –(a) publicly exposed for sale; or(b) kept or treated for the purpose of sale.(2) An officer, at any reasonable time, may enter and inspect any premises or fishery registered under Part 4 .(3) An officer may search any receptacle or container at any place or on any premises entered under this section.
91. Securing boat, land and premises
An officer, by notice in writing, may require the owner or occupier of any land or premises to secure the land or premises.
92. Stopping and searching boat or vehicle
(1) An officer may signal or direct a person apparently in charge of a boat or vehicle –(a) to stop the boat or vehicle; or(b) not to move the boat or vehicle for a reasonable period.(2) A person is not required to comply with a signal or direction under subsection (1) if the person –(a) reasonably believes that to comply would endanger the person, another person, the boat or vehicle; and(b) complies with the signal or direction as soon as it is practicable to do so.(3) An officer may board and search a boat or search a vehicle.
(1) In exercising a power under this Act, an officer may require the person apparently in charge of a boat to allow the officer to use the boat.(2) [Section 93 Subsection (2) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director is to pay compensation to any person entitled to use a boat at the time an officer used the boat.(3) Compensation is payable –(a) for any reasonable loss incurred –(i) in respect of the boat because of its use by an officer; or(ii) for any other reason the Minister considers appropriate; and(b) at an amount the Minister considers appropriate.
(1) An officer may require the person apparently in charge of a boat which the officer reasonably believes has been used, is being used or is about to be used in contravention of this Act –(a) to bring the boat to a specified place; and(b) not to move the boat from that place until directed by the officer to do so.(2) An officer must direct the person apparently in charge of a boat to move the boat within a reasonable period.
95. Examination of fish and articles
For the purpose of this Act, an officer may –(a) examine any fish and anything in which fish are kept; and(b) take samples of any fish and any medium in which fish are kept; and(c) examine any equipment or other article found in any place used, intended to be used or adapted for fishing.
96. Opening and unlocking boat, door or container
(1) For the purpose of this Act, an officer may require a person to open or unlock any boat, door, gate, package, receptacle or other container.(2) An officer may break open and search any boat, door, gate, package, receptacle or other container –(a) in searching or inspecting a place; or(b) if the officer reasonably believes that it contains fish or any evidence of the commission of an offence under this Act.
An officer may require a person to produce for inspection any thing in the person's possession if the officer reasonably believes that it may disclose evidence of the commission of an offence under this Act.
98. Production of documents and records
(1) An officer may require a person to produce –(a) any document or record required to be kept under this Act; or(b) any document or record relating to the sale or purchase of fish.(2) An officer may –(a) examine any document or record produced under subsection (1) ; and(b) remove any document or record produced under subsection (1) for the purpose of paragraph (c) ; and(c) take extracts from, or copies of, any document or record by any means.(3) A person must –(a) provide reasonable facilities and assistance to an officer exercising any power under this section; and(b) remove any physical or other obstruction which may hinder or prevent an officer from exercising a power under this section.Penalty: Fine not exceeding 10 penalty units.
99. Production of licence or registration
An officer may –(a) require a person to produce for inspection any licence or certificate of registration under this Act the person holds or should hold; and(b) examine, remove and take photographs or copies of, or extracts or notes from, any licence or certificate of registration under this Act.
100. Photographs, sketches, measurements and recordings
For the purpose of this Act, an officer may –(a) take any photograph, film or video recording; and(b) take any copy of, or extract from, any record; and(c) take any measurements; and(d) make any sketches or drawing; and(e) make any recording by any means.
An officer may carry out any examination and inquiry the officer considers necessary to ascertain if any provisions of this Act or any conditions imposed under this Act have been complied with.
(1) An officer may require –(a) any of the following persons to give his or her full name and residential address:(i) any person on board a boat;(ii) any person in or on any premises or fishery registered under Part 4 ;(iii) any person whom the officer reasonably believes is committing or has committed an offence under this Act; and(b) a person to give details of any licence, registration or exemption under this Act; and(c) the person apparently in charge of a boat to give the full name and address of any person on board the boat.(2) An officer may require any person to give information about that person's or another person's activities in respect of any matter under this Act.(3) A person must comply with a requirement under this section.Penalty: Fine not exceeding 2 penalty units.
An officer may arrest a person without warrant if –(a) the person does not give the information or details required under section 102 ; or(b) the officer reasonably believes that the person has given a false name or address; or(c) the officer reasonably believes that the person has committed an offence under this Act and that –(i) the offence is likely to continue or recur if the person is not arrested; or(ii) any other procedure for dealing with the offence would not be effective; or(d) the officer reasonably believes that the person has contravened any order under this Act.
Division 3 - Warrants
104. Application and issue of warrant
(1) An officer may apply to a justice for a warrant to enter and search any land, waters, premises or place.(2) A justice may issue a warrant if satisfied –(a) that there are reasonable grounds for believing that there is on the land or on or in any waters, premises or place any evidence of the commission of an offence under this Act; or(b) that the issue of a warrant is reasonably required to ascertain if a person has not complied with this Act.(3) A warrant is to authorise an officer –(a) to enter and search the land, waters, premises or place specified in the warrant; and(b) to do any acts authorised under this Part –(i) with any assistance, and by any force, reasonably necessary; and(ii) on the date and during the hours or at any time the warrant specifies.(4) A warrant is to specify the date on which, and the time at which, the warrant ceases to have effect.
(1) An officer may apply to a justice for a warrant by telephone, facsimile or other prescribed means if the officer considers the urgency of a situation requires it.(2) The justice may complete and sign a warrant in the terms referred to in section 104 (3) if satisfied that there are reasonable grounds for issuing the warrant urgently.(3) The justice is to –(a) tell the officer –(i) the terms of the warrant; and(ii) the date on which, and the time at which, the warrant was signed; and(iii) the date on which, and the time at which, the warrant ceases to have effect; and(b) record on the warrant the reasons for granting the warrant.(4) The officer is to –(a) complete a form of warrant in the same terms as the warrant signed by the justice; and(b) write on the form –(i) the name of the justice; and(ii) the date on which, and the time at which, the warrant was signed; and(c) send the justice the completed form of warrant not later than the day after the warrant ceases to have effect or is executed, whichever is the earlier.(5) On receipt of the form of warrant, the justice is to attach it to the warrant the justice signed.(6) A form of warrant completed by an officer under subsection (4) has the same force as a warrant signed by the justice under subsection (2) .
Division 4 - Seizure and forfeiture
106. Seizure of fish, boat and other things
An officer may seize –(a) any fish the officer reasonably believes has been the subject of an offence under this Act; and(b) any receptacle or container containing such fish; and(c) any boat or equipment the officer reasonably believes has been used, is being used or is about to be used in the commission of an offence under this Act; and(d) any money or cheque the officer reasonably believes is the proceeds of the unlawful sale of any fish; and(e) any document or thing the officer reasonably believes is evidence of the commission of an offence under this Act.
107. Seizure of abandoned equipment and fish
(1) An officer may seize –(a) any equipment unattended in, or adjacent to, any waters which appears to have been lost or abandoned; and(b) any fish in, or adjacent to, any waters which appear to have been abandoned.(2) The officer may destroy or render inoperative any thing used for taking or holding fish if, in the opinion of the officer, it is not practicable to seize it.
108. Interference with seized property
(1) A person must not interfere with, remove or damage any fish, boat, equipment or other thing seized under this Part unless authorised to do so by an officer.Penalty: Fine not exceeding 5 penalty units.(2) A court, in addition to imposing a penalty on a person under subsection (1) , may order the person to pay compensation for any damage or loss to any other person.
(1) [Section 109 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] If a court convicts a person of an offence under this Act, any of the following is forfeited to the Director:(a) any fish to which the offence relates;(b) any equipment used, or intended to be used, in the commission of the offence;(c) any boat or other thing used in the commission of the offence.(2) A person may apply to the court during proceedings leading to a conviction or associated with a relevant offence for an order that forfeiture is not to be carried out.(3) The court, if satisfied that special reasons exist, may –(a) make the order applied for; and(b) make any other order it considers appropriate.(4) [Section 109 Subsection (4) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] In addition to any penalty imposed for an offence under this Act, a court, on application of the complainant, may order the forfeiture to the Director of any money, cheque or other thing that is the proceeds of the sale of any fish, boat or equipment in contravention of this Act.
110. Forfeiture on acceptance of infringement notice
(1) [Section 110 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] If a person accepts an infringement notice in relation to an offence and the infringement notice is not withdrawn, any of the following seized under this Act is forfeited to the Director:(a) any fish to which the offence relates;(b) any equipment used, or intended to be used, in the commission of the offence;(c) any boat or other thing used in the commission of the offence.(2) Forfeiture takes effect –(a) if an application is not made under section 111 , 108 days after service of the infringement notice; or(b) if an application is made under section 111 and a court under section 111 (5) (b) refuses to make an order, on the date of that refusal.
(1) The owner of any boat or equipment forfeited under section 110 may apply to a court for an order for its return.(2) An application is to –(a) be in writing; and(b) be made within 108 days after service of the infringement notice; and(c) state the reasons for the application.(3) [Section 111 Subsection (3) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] A person must serve a copy of the application on the Director.(4) [Section 111 Subsection (4) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director, or a person authorised by the Director, may appear before the court at the hearing of the application.(5) A court, if satisfied that special reasons exist, may –(a) make the order applied for; or(b) refuse to make the order applied for; or(c) make any other order it considers appropriate.
112. Forfeiture if owner is not found
(1) [Section 112 Subsection (1) substituted by No. 101 of 1999, s. 10, Applied:01 Mar 2000] The Director may determine that anything seized under section 107 for which an owner is not found is forfeited to the Director.(2) [Section 112 Subsection (2) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] Forfeiture takes effect on the date determined by the Director.
(1) [Section 113 Subsection (1) substituted by No. 101 of 1999, s. 11, Applied:01 Mar 2000] The Director may sell, destroy or otherwise dispose of anything forfeited under this Act.(2) [Section 113 Subsection (2) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] Any proceeds of a sale or disposal are payable to the Director.
114. Application to buy a forfeited thing
(1) A person who owned any thing, or who had any legal or equitable interest in, any thing forfeited under this Act immediately before the forfeiture may apply to the Minister to buy it.(2) An application is to be –(a) in writing; and(b) made within 30 days after the forfeiture.(3) The Minister may –(a) approve the application subject to any condition; or(b) refuse to approve the application.(4) If the Minister approves the application, the Minister is to order the sale of the forfeited thing to the applicant on payment of an amount equal to its estimated market value.(5) [Section 114 Subsection (5) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] Any proceeds of a sale are payable to the Director.
115. Release of seized property
(1) [Section 115 Subsection (1) amended by No. 101 of 1999, s. 12, Applied:01 Mar 2000] The Director may authorise the release of anything seized but not forfeited–(a) to the owner; or(b) to the person entitled to the possession of the thing; or(c) to the person from whom the thing was seized.(2) [Section 115 Subsection (2) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director may authorise the release of any thing subject to–(a) any condition relating to the payment of a bond; or(b) any condition relating to the provision of any other security; or(c) [Section 115 Subsection (2) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] any other condition the Director determines.(3) The amount of payment of a bond or the provision of a security is to be equivalent to the current market value of the thing.(4) A person must not fail to comply with a condition imposed under subsection (2) .Penalty: Fine not exceeding 5 penalty units.(5) In addition to a penalty imposed on a person for an offence under subsection (4) , a court may order the person to pay compensation for any damage or loss caused by the offence.
(1) [Section 116 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] A person from whom any thing was seized may apply to the Director for its return if–(a) a decision is made not to institute any proceedings in respect of the alleged offence for which the thing was seized; or(b) proceedings in respect of the alleged offence for which the thing was seized are not instituted within 30 days after the seizure; or(c) proceedings in respect of the alleged offence for which the thing was seized are discontinued or the alleged offender is acquitted.(2) An application is to be –(a) in writing; and(b) made within –(i) 3 months after the seizure, for an application to which subsection (1) (a) or (b) relates; or(ii) 6 weeks after the proceedings are discontinued or the applicant is acquitted, for an application to which subsection (1) (c) relates.(3) [Section 116 Subsection (3) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director may–(a) approve an application to which subsection (1) (a) or (b) relates if satisfied that the circumstances warrant; or(b) refuse to approve the application if not so satisfied.(4) [Section 116 Subsection (4) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director must approve an application to which subsection (1) (c) relates if satisfied that the proceedings have been discontinued or the alleged offender was acquitted.(5) [Section 116 Subsection (5) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] If a thing seized is sold before an application for its return is approved, the Director is to pay the applicant the proceeds of the sale of the thing less any reasonable costs incurred in maintaining, storing and selling it.(6) [Section 116 Subsection (6) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] If an application for the return of any seized thing is not made within the period referred to in subsection (2) , the thing is forfeited to the Director.(7) This section does not apply to any fish forfeited under this Act.
117. Live fish returned to water
(1) If, in the opinion of an officer, it is practicable to return any fish seized under this Act to inland waters, the officer may do so.(2) If, in the opinion of an officer, any fish seized under this Act is likely to deteriorate or rot if no action is taken to preserve it, the officer may sell, preserve or otherwise dispose of the fish.(3) A person is not entitled to any compensation in respect of any action taken under this section.
PART 6 - Infringement Notices
118. Service of infringement notice
(1) An officer may serve an infringement notice on a person, other than a person under the age of 16 years, if of the opinion that the person has committed a prescribed offence.(2) An infringement notice is not to relate to 4 or more offences.
119. Form of infringement notice
[Section 120 Repealed by No. 101 of 1999, s. 14, Applied:01 Mar 2000] . . . . . . . .(1) An infringement notice is to –(a) be in an approved form; and(b) specify –(i) the offence to which it relates; and(ii) the prescribed penalty for that offence; and(iii) the total amount payable; and(iv) [Section 119 Subsection (1) amended by No. 101 of 1999, s. 13, Applied:01 Mar 2000] the place at which the penalty must be paid; and(v) any other prescribed details.(2) An infringement notice is to state that the person on whom it is served may disregard the notice but that on doing so he or she may be prosecuted for the offence to which the notice relates.
121. Acceptance of infringement notice
(1) A person may accept an infringement notice by –(a) paying the total amount payable to the relevant clerk of petty sessions within 21 days after being served with the notice; or(b) lodging with the relevant clerk of petty sessions within 21 days after being served with the notice a written undertaking to pay the amount payable by instalments.(2) A person must not accept an infringement notice that has been withdrawn.(3) The relevant clerk of petty sessions may allow a further period of 14 days in addition to the period referred to in subsection (1) .
(1) If a person undertakes to pay an amount payable under an infringement notice by instalments, the clerk of petty sessions may determine –(a) the amount and frequency of the instalments; and(b) [Section 122 Subsection (1) amended by No. 101 of 1999, s. 15, Applied:01 Mar 2000] the period, not exceeding 63 days, within which the amount must be paid.(2) A person may make representations to the relevant clerk of petty sessions in relation to the ability to pay the amount.(3) The relevant clerk of petty sessions is to take the person's representations into account before determining the amount and frequency of the instalments.(4) [Section 122 Subsection (4) amended by No. 101 of 1999, s. 15, Applied:01 Mar 2000] The relevant clerk of petty sessions may allow a further period of 14 days in addition to the 63 days referred to in subsection (1) (b) .(5) If a person fails to pay any amount in accordance with an undertaking, the same proceedings may be taken against the person in respect of the part of the amount remaining outstanding as if it were a penalty imposed on the person on summary conviction.(6) [Section 122 Subsection (6) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] Half of the payments made in respect of an infringement notice are to be paid into the Consolidated Fund and half to the Director.
(1) The acceptance of an infringement notice is not an admission of liability in any civil proceedings.(2) Proceedings against a person for an offence to which an infringement notice relates and which has not been withdrawn must not be brought –(a) if the person accepts the infringement notice; or(b) within –(i) 21 days after the notice was served, if the person has not been allowed an additional period under section 121 (3) ; or(ii) 35 days after the notice was served, if the person has been allowed an additional period under section 121 (3) ; or(iii) 60 days after the notice was served, if the person has not been allowed an additional period under section 122 (4) ; or(iv) 74 days after the notice was served, if the person has been allowed an additional period under section 122 (4) .
124. Withdrawal of infringement notice
(1) [Section 124 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director or any person authorised by the Director may withdraw an infringement notice served on a person if of the opinion that–(a) the infringement notice should not have been served; or(b) the person should be proceeded against for the offence to which the withdrawal notice relates.(2) An infringement notice may be withdrawn whether or not it has been accepted.(3) An infringement notice is to be withdrawn –(a) by serving on a person a notice stating that the infringement notice has been withdrawn; and(b) within 108 days after service of the infringement notice.(4) The relevant clerk of petty sessions must repay to a person any amount paid by that person in respect of an infringement notice that is withdrawn.
125. Evidence of withdrawal notice not admissible
Evidence of the service, acceptance or withdrawal of an infringement notice is not admissible in any proceedings for the offence to which the notice relates.
PART 7 - Offences
Division 1 - Offences relating to fish
126. Poisonous and chemical substances
(1) A person must not put, or allow to flow, into any inland waters containing fish any liquid, gaseous or solid matter which is likely to be poisonous or injurious to fish, the spawning grounds of fish or the food of fish.Penalty: Fine not exceeding 50 penalty units.(2) Subsection (1) does not apply –(a) to anything done under Division 5 of Part IV of the Water Act 1957 ; or(b) to any works involving rock, soil, sand, gravel, shingle, mud or muddy water carried out by the Crown, a council or marine board in –(i) constructing a road, bridge, ford, dam or channel; or(ii) improving a river or harbour; or(iii) laying an underwater pipeline or cable; or(iv) reclaiming land; or(c) to the discharge of sewage undertaken under an Act; or(d) to anything authorised under the Mining Act 1929 ; or(e) in relation to a registered private fishery; or(f) in relation to a licensed fish farm.(3) [Section 126 Subsection (3) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] A person, without the consent of the Director, must not put into any inland waters any fertiliser or any other chemical substance.Penalty: Fine not exceeding 50 penalty units.
127. Explosive substances, firearms and missiles
A person must not take fish in inland waters by the use of –(a) any explosive substance; or(b) any material which is likely to poison, stupefy or paralyse any fish; or(c) an electric current in those waters; or(d) any stone or other missile; or(e) any firearm.Penalty: Fine not exceeding 10 penalty units.
128. Removing, freeing or introducing fish
(1) [Section 128 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] A person must not remove from, or release into, a registered private fishery any live fish without the written consent of the Director.Penalty: Fine not exceeding 10 penalty units.(2) A person must not remove fish from any equipment in inland waters unless the person –(a) is the owner of the equipment; or(b) has the consent of the owner of the equipment.Penalty: Fine not exceeding 10 penalty units.(3) [Section 128 Subsection (3) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] A person, without the written consent of the Director, must not release, plant or introduce in any inland waters or in a registered private fishery–(a) any kind or species of fish or amphibious or invertebrate animal; or(b) any kind or species of aquatic plant.Penalty: Fine not exceeding 10 penalty units.(4) [Section 128 Subsection (4) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] A person must not remove any freshwater crayfish of the family Parastacidae or any spawn or product of the freshwater crayfish from the State without the written consent of the Director.Penalty: Fine not exceeding 10 penalty units.
[Section 129 Amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] A person, without the written consent of the Director, must not have in possession in any bait or can any kind or species of live fish or live amphibious or invertebrate animal that is not already present in a river or lake on or within 100 metres of–(a) the bank of a river above tidal limits; or(b) a tributary of a river; or(c) a part of a river above a dam; or(d) the shore of a lake.Penalty: Fine not exceeding 10 penalty units.
130. Use of lights and instruments
(1) A person, except as authorised by regulations, must not take or facilitate the taking of fish by the use of –(a) any light; or(b) any wire, snare, spear or gaff; or(c) any instrument used to foulhook fish; or(d) any board, stick, club or other instrument.Penalty: Fine not exceeding 10 penalty units.(2) A person must not have possession of anything referred to in subsection (1) for the purpose of taking or facilitating the taking of fish.Penalty: Fine not exceeding 10 penalty units.(3) This section does not apply to fish –(a) in State waters other than salmon in excepted waters; or(b) in any registered private fishery; or(c) in any licensed fish farm.
(1) The Minister, by order, may declare any kind or species of freshwater fish to be protected fish.(2) A person must not take any protected fish.Penalty: Fine not exceeding 10 penalty units.
(1) [Section 132 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] A person, without the written consent of the Director, must not import–(a) any live aquatic crustacean, molluscan or invertebrate animal; or(b) any kind or species of live fish that is capable of–(i) living and reproducing in inland waters; or(ii) living in captivity at a temperature below 10° Celsius; or(c) any live salmon eggs or sperm.Penalty: Fine not exceeding 100 penalty units.(2) Subsection (1) (b) does not apply to goldfish (Carassius auratus) landed in the State in accordance with any other Act.
[Section 133 Amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] A person, without written consent of the Director, must not–(a) fertilise, hatch, rear, propagate or strip salmon; or(b) have possession of the fertilised eggs of salmon.Penalty: Fine not exceeding 10 penalty units.
(1) A person must not sell or buy any declared fish produced or taken at a registered private fishery –(a) except for the purpose of fishing in accordance with the certificate of registration issued in respect of that fishery; or(b) unless the fish have been taken by a purchaser in accordance with the certificate of registration issued in respect of that fishery.Penalty: Fine not exceeding 20 penalty units.(2) A person must not take any fish for the purpose of sale unless the fish is taken in a licensed fish farm or under a commercial licence.Penalty: Fine not exceeding 20 penalty units.(3) A person must not buy, sell or have possession of, other than in a registered private fishery or in a licensed fish farm, any –(a) undersized freshwater fish; or(b) unclean freshwater fish; or(c) unseasonable freshwater fish.Penalty: Fine not exceeding 20 penalty units.(4) A person must not buy or sell any declared fish unless –(a) if the fish is produced or taken at a licensed fish farm, the fish –(i) are of a kind or species in respect of which the fish farm is licensed; and(ii) have not been removed or escaped from the fish farm and liberated or escaped into any water that is not in a fish farm; or(b) the fish is imported into the State in accordance with this Act; or(c) the fish is taken under a commercial licence.(5) A person who carries out the business of a fishmonger, butcher or dealer of smallgoods must not sell or have possession of on any premises in which the business is carried out any kind or species of fish, other than –(a) eels, tench or perch; or(b) salmon; or(c) other declared fish.Penalty: Fine not exceeding 20 penalty units.
(1) A person, other than an officer, must not store or deposit in any commercial cool-store any freshwater fish other than fish taken under a commercial licence unless –(a) the fish have been lawfully taken by the person; and(b) the fish are clearly labelled with –(i) the name and address of the person; and(ii) the date on which they were stored or deposited.Penalty: Fine not exceeding 10 penalty units.(2) The owner or person in charge of a commercial cool-store in which fish are stored or deposited must allow an officer to enter and inspect the fish at any reasonable time.Penalty: Fine not exceeding 10 penalty units.
A person must not have possession of the whole or part of any live or dead salmon during a prescribed period unless it was –(a) lawfully produced or taken at a licensed fish farm or a marine farm; or(b) lawfully taken at a registered private fishery; or(c) lawfully taken from State waters; or(d) canned, frozen or otherwise preserved and is lawfully imported.Penalty: Fine not exceeding 10 penalty units.
(1) A person must not disturb –(a) any spawn or spawning fish; or(b) any bed, bank or shallow on which any spawn or spawning fish may be; or(c) any fish at a place and during a time at which the fish are spawning or accustomed to spawn.Penalty: Fine not exceeding 10 penalty units.(2) Subsection (1) does not apply in relation to –(a) State waters; or(b) any registered private fishery; or(c) any licensed fish farm.
(1) [Section 138 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] A person, unless the Director otherwise directs, must not–(a) affix an identification mark or tag to a live freshwater fish; or(b) remove a fin from a live freshwater fish; or(c) mutilate a live freshwater fish; or(d) otherwise mark a live freshwater fish.Penalty: Fine not exceeding 5 penalty units.(2) A person must not mark any salmon or other declared fish in a manner likely to deceive any person into believing that the fish is properly marked.Penalty: Fine not exceeding 5 penalty units.(3) A person must not have possession of any salmon or other declared fish marked in a manner likely to deceive any person into whose possession the fish may subsequently come that the fish has been properly marked.Penalty: Fine not exceeding 5 penalty units.(4) It is a defence in proceedings for an offence under subsection (3) for a person to prove that he or she reasonably believed the salmon or declared fish was properly marked.
(1) [Section 139 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] A person, without the written consent of the Director, must not–(a) place or use in any inland waters any equipment, instrument or device likely to hinder or obstruct the free passage of fish in those waters; or(b) injure a fish-pass; or(c) do anything likely to impair the efficiency of a fish-pass; or(d) cut through, break down or otherwise destroy a dam, floodgate or sluice for the purpose of destroying or taking any fish.Penalty: Fine not exceeding 10 penalty units.(2) Subsection (1) does not apply in relation to –(a) a registered private fishery; or(b) a licensed fish farm.
A person must not place or leave unattended anything that obstructs or is likely to obstruct –(a) a public boat launching ramp adjacent to any inland waters; or(b) the access to or from a public boat launching ramp adjacent to any inland waters.Penalty: Fine not exceeding 5 penalty units.
Division 2 - General offences
A person, without reasonable excuse, must not refuse to allow a search to be made under this Act.Penalty: Fine not exceeding 10 penalty units.
A person must not –(a) impersonate an officer; or(b) hold himself or herself out as an officer.Penalty: Fine not exceeding 20 penalty units.
A person must not –(a) assault, abuse or threaten an officer exercising a power or performing a function under this Act; or(b) hinder, mislead, obstruct or delay an officer exercising a power or performing a function under this Act; or(c) incite or encourage another person to anything referred to in paragraphs (a) and (b) .Penalty: Fine not exceeding 50 penalty units.
144. False and misleading statements
A person, in making an application, giving any information or producing a document under this Act, must not –(a) make a statement knowing it to be false or misleading; or(b) omit any matter from a statement knowing that without that matter the statement is misleading.Penalty: Fine not exceeding 10 penalty units.
Division 3 - Control orders
145. Application for control order
(1) [Section 145 Subsection (1) amended by No. 101 of 1999, Sched. 2, Applied:01 Mar 2000] The Director may apply to the Supreme Court for a control order against a person–(a) who has been convicted of more than one offence against this Act; and(b) [Section 145 Subsection (1) amended by No. 101 of 1999, Sched. 2, Applied:01 Mar 2000] who the Director reasonably believes is likely to commit further offences against this Act.(2) An application for a control order must be accompanied by –(a) a draft control order in accordance with section 146 ; and(b) any evidence and argument to justify the making of the control order.
A draft control order must –(a) specify the person to whom it is to apply; and(b) describe the activities which are proposed to be restricted or prohibited; and(c) specify the period during which the control order is to be in force; and(d) describe any relevant circumstances.
(1) The Supreme Court –(a) may issue the control order applied for; or(b) if satisfied that to do so would be harsh and unjust, may –(i) amend the control order; or(ii) refuse to issue the control order.(2) A person must not fail to comply with a control order.Penalty: Fine not exceeding 50 penalty units.
148. Variation or revocation of control order
(1) [Section 148 Subsection (1) amended by No. 101 of 1999, Sched. 2, Applied:01 Mar 2000] The Director may apply to the Supreme Court to vary or revoke a control order.(2) An application for the variation of a control order is to be accompanied by –(a) a draft of any variation being sought; and(b) any evidence and argument to justify the variation of the control order.(3) The Supreme Court may –(a) revoke the control order; or(b) vary the control order if satisfied that to do so would not be harsh and unjust; or(c) refuse to vary the control order if not so satisfied.
Division 4 - Penalty of imprisonment
[Section 148A of Part 7 Inserted by No. 58 of 2000, s. 7, Applied:19 Sep 2000](1) In addition to, or instead of, imposing a penalty on a person for an offence under this Act, a court may impose a penalty of a term of imprisonment not exceeding 3 months in respect of the offence.(2) Subsection (1) only applies if the person was previously convicted of an offence under this Act.
PART 8 - Miscellaneous
Division 1 - Controlled fish
149. Declaration of controlled fish
(1) The Minister, by order, may declare fish to be controlled fish to which this Division applies.(2) The occupier of land on or in which any inland waters are situated is taken to have possession of any controlled fish in those waters.
150. Offences relating to controlled fish
A person must not –(a) keep or have possession or control of any controlled fish; or(b) consign or convey any controlled fish; or(c) release into any inland waters, water hole, dam, aquarium, hatchery or container any controlled fish.Penalty: Fine not exceeding 100 penalty units.
151. Notification of location of controlled fish
(1) [Section 151 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] A person who owns or has possession or control of any fish knowing it to be controlled fish must notify the Director of that fact as soon as obtaining that knowledge.Penalty: Fine not exceeding 10 penalty units.(2) A notification is to –(a) be in writing; and(b) specify the location of the controlled fish.
152. Removal or destruction of controlled fish
(1) An officer may seize and remove from any place any controlled fish.(2) [Section 152 Subsection (2) amended by No. 101 of 1999, Sched. 2, Applied:01 Mar 2000] The Minister, by order, may authorise the Director–(a) to destroy any controlled fish in a specified manner if the Minister is satisfied that it is not practicable to seize or remove the fish; and(b) to take any action necessary to delay or prevent the spreading of controlled fish to other places or waters.(3) An order to destroy controlled fish is to be carried out even though other fish may be destroyed.(4) [Section 152 Subsection (4) amended by No. 101 of 1999, Sched. 2, Applied:01 Mar 2000] In taking any action under subsection (2) (b) , the Director may issue any directions necessary.(5) [Section 152 Subsection (5) amended by No. 101 of 1999, Sched. 2, Applied:01 Mar 2000] A person must comply with any direction of the Director.Penalty: Fine not exceeding 20 penalty units.(6) Any expenses incurred in carrying out an order are payable from the Consolidated Fund without further appropriation other than this section.
Any person carrying out an order under section 152 is not liable for anything done or omitted to be done in good faith by that person in carrying out the order.
Division 2 - Fauna reserve
(1) [Section 154 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Minister, on the recommendation of the Director, may declare any inland waters to be a fauna reserve.(2) The Minister must not make an order in respect of inland waters in which there is a private fishery without the consent of the owner of that fishery.
155. Offences relating to fauna reserves
A person must not –(a) [Section 155 Amended by No. 101 of 1999, s. 16, Applied:01 Mar 2000] take or remove from, place on or in, or introduce in, a fauna reserve or within 100 metres of the edge of the fauna reserve any animal, fish, plant or other living organism without the Director's approval; or(b) interfere with any animal, fish, plant or other living organism in a fauna reserve; or(c) [Section 155 Amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] do any act which, in the opinion of the Director, is likely to–(i) disturb or pollute the fauna reserve; or(ii) alter the character of the fauna reserve; or(iii) have a deleterious effect on, or alter the nature of, any animal or vegetation in the fauna reserve.Penalty: Fine not exceeding 50 penalty units.
Division 3 - Provisions relating to land
156. Purchase or acquisition of land
(1) [Section 156 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Minister or the Director, with the consent of the Minister, may purchase or acquire land for the purposes of this Act.(2) [Section 156 Subsection (2) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Land Acquisition Act 1993 applies to the acquisition of land by the Director.(3) [Section 156 Subsection (3) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director, with the consent of the Minister, may sell land under the Land Acquisition Act 1993 .
(1) [Section 157 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Minister may make an order declaring land to be reserved land for the purposes of this Act if satisfied that the land is required by the Director for the purposes of this Act.(2) [Section 157 Subsection (2) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The possession, management and control of reserved land vests in the Director.
Division 4 - Powers relating to inland waters
[Section 158 Amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director may make any alteration to the bed of a river to secure free and uninterrupted passage of fish if satisfied that the river and any reef, ledge, shoal or other natural obstruction is likely to–(a) prevent or impede the free passage of fish; or(b) hinder the approach and access of fish to a fishery and the depositing of spawn in the fishery.
159. Gratings across conduit or channel
(1) A person in control of a conduit or artificial channel used to direct water from waters frequented by salmon must place efficient gratings across the conduit or channel to prevent the descent or entry of salmon from or into the outflow.Penalty: Fine not exceeding 10 penalty units.(2) Gratings are to be –(a) constructed and placed in an approved manner; and(b) maintained at the person's own expense.
(1) [Section 160 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director, by notice in writing, may require the owner or occupier of a dam placed in or across a river, an outlet or the shores of a lake to make a fish-pass if satisfied that the dam does not permit the free passage of fish.(2) A notice is to state the period within which the fish-pass is to be made.(3) A fish-pass is to be –(a) made in an approved manner; and(b) maintained at the person's own expense.(4) A person must comply with a notice.Penalty: Fine not exceeding 10 penalty units.
161. Work carried out by Director
[Section 161 Amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] If a person fails to comply with this Division, the Director may–(a) do any work or cause to be done any work required to be done by the person; and(b) enter into and upon any dam, land or place for that purpose; and(c) [Section 161 Amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] recover from the person in a court of competent jurisdiction as a debt due to the Director any expenses incurred in doing the work.
In carrying out any work in relation to inland waters, a person must provide a grating, lattice or other efficient means of preventing fish from passing into any turbines, pumps or similar hydraulic machines.Penalty: Fine not exceeding 10 penalty units.
(1) The owner or occupier of a dam must keep shut the sluices for drawing off water which would otherwise flow over the dam into waters frequented by freshwater fish so that the water flows –(a) if there is a fish-pass, through the fish-pass in or connected with the dam; or(b) if there is no fish-pass, over the dam.Penalty: Fine not exceeding 10 penalty units.(2) Subsection (1) does not apply if –(a) water is required for water-power, navigation, irrigation or other purposes of the dam; or(b) the person opens a sluice to let off water in case of flood; or(c) [Section 163 Subsection (2) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] with prior written notice to the Director, the person cleans or repairs the dam or any works used in connection with the dam.
164. Non-application of Division
(1) This Division does not apply –(a) in respect of a registered private fishery; and(b) in respect of a licensed fish farm; and(c) to any person exempted under section 165 .(2) This section and sections 159 , 160 and 162 do not apply to the Hydro-Electric Corporation.
(1) [Section 165 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] A person, by notice in writing, may apply to the Director to be exempted from any of the provisions of this Division.(2) [Section 165 Subsection (2) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director may–(a) grant an application for an exemption with or without any conditions; or(b) refuse to grant the application.(3) An exemption remains in force until whichever of the following occurs first:(a) [Section 165 Subsection (3) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] the Director revokes the exemption;(b) the date specified in the exemption as the date on which the exemption ceases to be in force.
Division 5 - Fish Farm Development Committee
166. Fish Farm Development Committee
There is established a Fish Farm Development Committee consisting of –(a) [Section 166 Amended by No. 101 of 1999, Sched. 2, Applied:01 Mar 2000] the Director; and(b) the Secretary of the department responsible for the administration of the Living Marine Resources Management Act 1995 .
167. General functions and powers of Committee
(1) [Section 167 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The functions of the Fish Farm Development Committee are to arrange for the co-operation and consultation between the Secretary of the department responsible for the administration of the Living Marine Resources Management Act 1995 and the Director on matters relating to fish farms and marine farms.(2) The Fish Farm Development Committee may do anything necessary or convenient to perform its functions.
Division 6 - Permits
168. Taking fish from State fishery
(1) A person who is not the holder of a licence must not take fish from a fishery of the State without a fishing permit.Penalty: Fine not exceeding 5 penalty units.(2) A person is to apply for a fishing permit in accordance with section 170 .
(1) [Section 169 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] A person may apply to the Director for a permit to take any action prohibited under this Act for any of the following purposes:(a) scientific research;(b) the promotion of fishing;(c) the development of fisheries;(d) the development of fishing technology;(e) educational and community awareness programs;(f) fish stock depletion or enhancement;(g) the collection, keeping, breeding, hatching or cultivating of freshwater fish;(h) [Section 169 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] sport or recreation purposes by a person who, in the opinion of the Director, would otherwise be unable by reason of that person's disability to engage in fishing by methods permitted under this Act;(i) any other approved purpose.(2) A person is to apply for an exemption permit in accordance with section 170 .
(1) An application for a fishing permit or an exemption permit is to –(a) be in an approved form; and(b) [Section 170 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] contain any information the Director requires; and(c) be accompanied by the prescribed fee; and(d) [Section 170 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] be lodged with the Director.(2) [Section 170 Subsection (2) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director may require a person to–(a) [Section 170 Subsection (2) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] provide any further information the Director determines; and(b) verify by statutory declaration any information given in connection with an application.
[Section 171 Amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director may–(a) grant an application for a fishing permit or an exemption permit; or(b) refuse to grant the application.
[Section 172 Amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director is to issue a fishing permit or an exemption permit in an approved form.
(1) [Section 173 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] A fishing permit and an exemption permit is subject to any conditions the Director determines.(2) A person must not fail to comply with, or contravene, a condition of a fishing permit or an exemption permit.Penalty: Fine not exceeding 5 penalty units.(3) [Section 173 Subsection (3) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director may vary or omit any condition of a fishing permit or an exemption permit by notice in writing served on the holder of the permit.
[Section 174 Amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] A fishing permit or an exemption permit is in force for the period specified in the permit unless the Director sooner revokes it.
[Section 175 Amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director may revoke a fishing permit or an exemption permit by notice in writing served on the holder of the permit.
Division 7 - Evidence and presumptions
In any proceedings for an offence under this Act, a copy of an entry in a register kept under section 196 is evidence –(a) that the entry was duly made; and(b) of any matter specified in the entry.
In any proceedings for an offence under this Act, production of an identity card issued under section 20 is evidence of any fact appearing in it.
178. Evidence of licensing and statistical matters
[Section 178 Amended by No. 101 of 1999, Sched. 2, Applied:01 Mar 2000] In any proceedings for an offence under this Act, production of a certificate purporting to be signed by the Director stating any of the following facts is evidence of those facts:(a) that on any date or during any period a person was, or was not, authorised to do anything under a licence or permit or was, or was not, exempted from a specified provision of this Act;(b) that on any date or during any period any premises or fisheries were, or were not, the subject of a licence, permit, registration or exemption;(c) that on any date or during any period a licence, permit, registration or exemption was cancelled, suspended or had no effect for any other reason.
179. Evidence of certain facts
In any proceedings for an offence under this Act, any of the following allegations in the complaint is evidence of the facts contained in them:(a) that any fish is of a specified kind or species or has a particular characteristic;(b) that any fish was taken from a particular place or area;(c) that any kind or species of fish is, or is not, found in a particular area;(d) that an activity occurred in a particular place or area;(e) that any equipment is of a particular type or is designed, used or capable of being used for a particular purpose or for taking a particular species of fish;(f) that a person is of a certain age;(g) that a person was, or was not, the holder of a licence or permit under this Act.
180. Proof fish were taken for sale
(1) In any proceedings for an offence under this Act, evidence that any fish taken by a person was subsequently sold by, or on behalf of, the person is evidence that the fish was taken for the purpose of sale.(2) In any proceedings for an offence under this Act, evidence that any fish in a person's possession was subsequently sold by, or on behalf of, the person is evidence that the person possessed the fish for the purpose of sale.
181. Presumption of purpose of sale
In any proceedings for an offence under this Act, a person is presumed to have possessed fish for the purpose of sale if it is proved that –(a) the fish was at a place in, on or from which fish were normally sold or were sold during a period of 6 months before the offence was allegedly committed; and(b) the fish was in the possession of the person who was not a customer.
In any proceedings for an offence under this Act, unless the contrary is proved –(a) a fishery is a fishery of the State; and(b) fish taken from a fishery is taken from a fishery of the State.
183. Accuracy of measuring equipment
In any proceedings for an offence under this Act in which evidence is given as to the weight, size, direction or location as determined by an officer, any scales, callipers, rule, compass or other navigational or measuring equipment used by the officer in making the determination are, unless the contrary is proven –(a) taken to be accurate; and(b) taken to have been operated properly.
Division 8 - Regulations
(1) The Governor may make regulations for the purpose of this Act.(2) Regulations may be made so as to apply differently according to any matter, condition, limitation, restriction, exception or circumstance specified in the regulations.(3) The regulations may authorise any matter to be determined, applied or regulated by any person or body.(4) The regulations may confer a power and impose a duty on a specified person or a specified class of persons.(5) The regulations may adopt or incorporate the whole or any part of any document, standard, rule, code, specification or method, with or without modification, issued, prescribed or published by any person or body before or after the regulations take effect.(6) Regulations may be of a savings or transitional nature consequent to the enactment of this Act.(7) Regulations under subsection (6) may take effect from the commencement of this Act or a later date.
The regulations may –(a) provide that a contravention of, or a failure to comply with, any regulations is an offence; and(b) provide for the imposition of a fine for such an offence not exceeding 20 penalty units and, in the case of a continuing offence, a further fine not exceeding 5 penalty units for each day during which the offence continues; and(c) prescribe a minimum penalty for such an offence; and(d) prescribe different maximum penalties for successive offences; and(e) provide for the imposition of a special penalty for such an offence not exceeding 1 penalty unit in relation to –(i) each fish or fish of any kind or species taken, bought or sold in connection with the commission of the offence; or(ii) [Section 185 Amended by No. 101 of 1999, s. 17, Applied:01 Mar 2000] each fish or fish of any kind or species in the possession of any person committing the offence; or(iii) [Section 185 Amended by No. 101 of 1999, s. 17, Applied:01 Mar 2000] each 500 grams of fish or fish of any kind or species bought or sold in connection with the commission of the offence or in the possession of any person committing the offence; and(f) provide for the imposition of a special penalty for such an offence not exceeding 5 penalty units in relation to any equipment or other article used by or in the possession of a person committing the offence; and(g) provide that any special penalty may be imposed for an offence in addition to any other penalty that may be imposed for the offence.
186. Prescribed offences and penalties
(1) The Governor may make regulations prescribing –(a) offences for the purposes of infringement notices; and(b) the penalty applicable to such offences.(2) Offences may be prescribed under subsection (1) that are offences under regulations made under this Act and in force for the time being.
187. Regulations relating to taking fish
(1) The Governor may make regulations –(a) regulating any fish or any taking of any specified kind or species of fish either generally or for a specified period; and(b) prescribing the minimum size of fish or of any kind or species of fish that may be taken; and(c) prescribing the conditions under which fish or any specified kind or species of fish may be taken; and(d) prohibiting any activity which is likely to be detrimental to taking fish.(2) This section does not apply to –(a) State waters; or(b) any fish, other than salmon or other declared fish taken from State waters; or(c) any registered private fishery; or(d) any licensed fish farm.(3) Subsection (1) (d) does not apply to the Hydro-Electric Corporation.
188. Regulations relating to buying and selling fish
(1) The Governor may make regulations –(a) prohibiting the sale or possession by any specified class of person on business premises of any fish or fish of any specified kind or species of fish; and(b) regulating the buying and selling of any fish or any specified kind or species of fish.(2) Subsection (1) (a) does not apply to –(a) State waters; or(b) any fish, other than freshwater fish, taken from State waters; or(c) any registered private fishery; or(d) any licensed fish farm.(3) Subsection (1) (b) does not apply to –(a) declared fish produced or taken at a licensed fish farm that –(i) are of the kind or species in respect of which that fish farm is licensed; and(ii) have not been removed or escaped from the fish farm and liberated or escaped into any water other than another licensed fish farm; or(b) declared fish imported into the State under this Act.
189. Regulations relating to equipment
(1) The Governor may make regulations –(a) prescribing the description, form and size of equipment that may be used –(i) to take fish or any specified kind or species of fish; or(ii) in any place for fishing; or(b) regulating the use or possession of any equipment for taking fish or any specified kind or species of fish.(2) Subsection (1) does not apply to –(a) State waters; or(b) any fish, other than salmon or other declared fish, taken from State waters; or(c) any registered private fishery; or(d) any licensed fish farm.
190. Regulations relating to conduct
(1) The Governor may make regulations regulating the conduct of any person –(a) fishing from any specified waters; or(b) entering in or going upon any specified waters or specified land containing, adjoining or adjacent to those waters.(2) Subsection (1) does not apply to –(a) State waters; or(b) any fish, other than salmon or other declared fish, taken from State waters; or(c) any registered private fishery; or(d) any licensed fish farm.
191. Regulations relating to disease in private fisheries
The Governor may make regulations with respect to –(a) the control and prevention of disease in, and the spread of disease from, registered private fisheries; and(b) the removal and destruction of fish from registered private fisheries in which disease is present; and(c) the drainage and cleaning of registered private fisheries in which disease is present; and(d) regulating the keeping of fish capable of being a nuisance in a fishery of the State; and(e) the liberation of fish in or from registered private fisheries.
192. Regulations relating to importing freshwater fish
The Governor may make regulations regulating the importation of freshwater fish.
193. Regulations relating to marking
(1) The Governor may make regulations –(a) regulating the marking of freshwater fish; and(b) regulating the possession of marking materials or of marking materials of a specified nature or kind; and(c) regulating the supply of marking materials; and(d) prescribing the manner and circumstances in which marking materials are to be returned or destroyed; and(e) prescribing the manner in which records relating to the supply, use, disposal or destruction of marking materials are to be kept; and(f) prescribing the manner in which, and the persons by whom, freshwater fish may be marked; and(g) regulating the buying, selling or possession of freshwater fish that are not properly marked; and(h) regulating the removal from a licensed fish farm of any freshwater fish unless they are properly marked.(2) This section does not apply to the keeping of freshwater fish on a licensed fish farm that are not properly marked if the fish –(a) have been produced or taken in that fish farm; and(b) are of a kind or species in respect of which the fish farm is licensed.(3) A fish is properly marked if it is marked –(a) in the prescribed manner; and(b) by a person authorised under regulations made under this section to mark it.
194. Regulations relating to fees and charges
(1) The Governor may make regulations prescribing fees and charges in relation to –(a) any matter under this Act; and(b) any services provided under this Act.(2) Regulations made under this section may prescribe a fee or charge by –(a) specifying a set amount; or(b) specifying any other method of calculating the fee or charge.
195. Waiving and refund of fees
[Section 195 Amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director may waive or refund any fees or charges or part of any fees or charges payable under this Act.
Division 9 - Miscellaneous
(1) [Section 196 Subsection (1) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] The Director is to keep a separate register of each of the following:(a) registered premises;(b) registered fish dealers;(c) registered private fisheries;(d) commercial licences;(e) fish farm licences.(2) Each register is to contain the following particulars:(a) the full name and address of any person to whom the registration or licence relates;(b) the particulars of any premises to which the registration or licence relates;(c) the date on which the registration or licence took effect;(d) any condition to which the registration or licence is subject;(e) the cancellation of the registration or licence;(f) [Section 196 Subsection (2) amended by No. 101 of 1999, Sched. 1, Applied:01 Mar 2000] any other information the Director determines.(3) A person, on payment of the prescribed fee, may –(a) inspect a register; or(b) obtain a copy of, or extract from, a register.
197. Taking fish at specified dates
(1) The Minister, by order, may determine the seasons, dates and places on or at which the taking of any specified kind or species of fish may –(a) start and stop; or(b) be prohibited; or(c) be permitted.(2) The Minister may impose any condition to an order.(3) A person must comply with an order.Penalty: Fine not exceeding 5 penalty units.
Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990 –(a) the administration of this Act is assigned to the Minister for Inland Fisheries; and(b) the Department responsible to the Minister for Inland Fisheries in relation to the administration of this Act is the Department of Environment and Land Management.
SCHEDULE 1 - Inland Waters
Inland Waters
1. | Big Lagoon in the Parish of Hartlepool in the County of Dorset. | 2. | Big Waterhouse Lake. | 3. | Dianas Basin. | 4. | Grants Lagoon. | 5. | Little Waterhouse Lake. | 6. | Sloop Lagoon. | 7. | Pittwater—the part into which the Orielton Rivulet flows that lies to the north of the causeway carrying the Tasman Highway between Midway Point and Sorell. | 8. | Rushy Lagoon. | 9. | Templestowe Lagoon. | 10. | Wrinkler's Lagoon. |
SCHEDULE 2 - Seaward Limits of Certain Rivers
Seaward Limits of Certain Rivers
River | Seaward limit | 1. | Apsley River | An imaginary straight line drawn between the 2 white posts situated on opposite banks of the Apsley River near to the place where it enters Moulting Lagoon. | 2. | Duck River | The upstream side of the bridge across the Duck River that lies nearest to the mouth of that river. | 3. | Huon River | An imaginary straight line drawn between a white post situated on the shore of the southern side of Castle Forbes Bay and another white post situated to the eastward of that post on the opposite bank of the Huon River. | 4. | Muddy Creek, flowing into Port Sorell | An imaginary straight line drawn between the white posts on opposite banks of Muddy Creek near the southern boundary of the town of Burgess. | 5. | Piper's River | An imaginary straight line drawn between the 2 white posts on opposite shores of the estuary of Piper's River near the upstream limits of that estuary. | 6. | River Derwent | The parallel of latitude of the eastern extremity of Dogshear Point. | 7. | River Franklin | The parallel of latitude of the southern most point of the island known as Devil's Nut situated downstream of the bridge carrying the main road from Harford to Frankford across the River Franklin. | 8. | River Rubicon, flowing into Port Sorell | The upstream side of the bridge carrying the main road from Harford to Frankford across the River Rubicon. | 9. | River Tamar | The parallel of latitude of Haystack Point. | 10. | Swan River | An imaginary straight line drawn between the white posts situated on opposite banks of the Swan River near to the place where it enters King Bay. |
SCHEDULE 3 - Membership and Meetings of Council[Schedule 3 Substituted by No. 101 of 1999, s. 18, Applied:01 Mar 2000]
1. InterpretationIn this Schedule –chairperson means the chairperson of the Council;member means a member of the Council.
2. Period of appointment(1) A member, other than the Director, is to be appointed for a period, not exceeding 4 years, as specified in the instrument of appointment.(2) The Director is taken to be an employee within the meaning of the Retirement Benefits Act 1993 .
3. Holding other office(1) The holder of an office who is required under any Act to devote the whole of the time to the duties of that office is not disqualified from –(a) holding that office and also the office of a member; or(b) accepting any remuneration payable to a member.(2) [Schedule 3 Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] If a State Service officer or State Service employee is appointed as a member, the officer or employee retains all existing and accruing rights as if service as a member was service within the meaning of the State Service Act 2000 .
4. RemunerationA member is entitled to be paid any remuneration and travelling and subsistence allowances the Minister determines.
5. Vacation of office(1) A member vacates office if the member –(a) dies; or(b) resigns; or(c) is removed from office under subclause (2) or (3) .(2) The Minister may remove a member from office if the member –(a) is absent from 3 consecutive meetings of the Council without the permission of the Council; or(b) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of any remuneration or estate for their benefit; or(c) is convicted, in Tasmania or elsewhere, of a crime or an offence punishable by imprisonment for 12 months or longer.(3) The Minister may remove a member from office if satisfied that the member –(a) is permanently unable to perform adequately or competently the duties of office; or(b) no longer has the qualifications as necessary to be appointed as a member.
6. Filling of vacanciesIf the office of a member becomes vacant, the Minister may appoint a person to the vacant office for the remainder of that member's term of office.
7. Meetings of Council(1) The chairperson or any other 2 members may convene a meeting of the Council.(2) The Council is to meet at least 4 times a year.
8. Procedure at meetings(1) The quorum at any duly convened meeting of the Council is 6 members, one of whom must be the chairperson.(2) Any duly convened meeting of the Council at which a quorum is present is competent to transact any business of the Council.(3) A question arising at a meeting of the Council is to be determined by a majority of votes of the members present and voting.
9. Chairperson(1) The chairperson is to preside at all meetings of the Council.(2) If the chairperson is not present at a meeting of the Council, a member elected by the members present is to preside at that meeting.
10. Minutes(1) The Council is to keep minutes of the –(a) proceedings at the meetings; and(b) attendance of members at the meetings.(2) Minutes kept of a meeting are to be signed by the chairperson at the next meeting.
11. General procedureSubject to this Schedule, the procedure for the calling of, and for the conduct of business at, meetings of the Council is to be determined by the Council.
12. Validity of proceedings(1) An act or proceeding of the Council or of a person acting under the direction of the Council is not invalid by reason only that at the time when the act or proceeding was done, taken or commenced there was a vacancy in the membership of the Council.(2) An act or proceeding of the Council or of a person acting under the direction of the Council is valid even if –(a) the appointment of a member was defective; or(b) a person appointed as a member was disqualified from acting as, or incapable of being, such a member.
SCHEDULE 4[Schedule 4 Repealed by No. 101 of 1999, s. 19, Applied:01 Mar 2000]