Fisheries Management Act 1994 (NSW)

Fisheries Management Act 1994 No 38 An Act relating to the management of fishery resources. Part 1 Preliminary 1 Name of Act This Act may be cited as the Fisheries Management Act 1994. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Objects of Act (1) The objects of this Act are to conserve, develop and share the fishery resources of the State for the benefit of present and future generations. (2) In particular, the objects of this Act include— (a) to conserve fish stocks and key fish habitats, and (b) to conserve threatened species, populations and ecological communities of fish and marine vegetation, and (c) to promote ecologically sustainable development, including the conservation of biological diversity, and, consistently with those objects— (d) to promote viable commercial fishing and aquaculture industries, and (e) to promote quality recreational fishing opportunities, and (f) to appropriately share fisheries resources between the users of those resources, and (g) to provide social and economic benefits for the wider community of New South Wales, and (h) to recognise the spiritual, social and customary significance to Aboriginal persons of fisheries resources and to protect, and promote the continuation of, Aboriginal cultural fishing. Note— At common law, the public has a right to fish in the sea, the arms of the sea and in the tidal reaches of all rivers and estuaries. The public has no common law right to fish in non-tidal waters—the right to fish in those waters belongs to the owner of the soil under those waters. However, the public may fish in non-tidal waters if the soil under those waters is Crown land. In the case of non-tidal waters in rivers and creeks, section 38 declares that the public has a right to fish despite the private ownership of the bed of the river or creek. However, the right to fish in tidal or non-tidal waters is subject to any restriction imposed by this Act. 4 Definitions (1) In this Act— Aboriginal cultural fishing means fishing activities and practices carried out by Aboriginal persons for the purpose of satisfying their personal, domestic or communal needs, or for educational, ceremonial or other traditional purposes, and which do not have a commercial purpose. Aboriginal fishing assistance program—see section 237B. Aboriginal person means a person who— (a) is a member of the Aboriginal race of Australia, and (b) identifies as an Aboriginal person, and (c) is accepted by the Aboriginal community as an Aboriginal person. advisory council means an advisory council established by the Minister under section 229. advisory group means an advisory group established by the Secretary under section 230. aquaculture is defined in Part 6. aquaculture lease means an aquaculture lease granted or renewed under Part 6. aquaculture permit means an aquaculture permit issued and in force under Part 6. Australian fishing zone has the same meaning as it has in the Commonwealth Act. biological diversity means the diversity of life and is made up of the following 3 components— (a) genetic diversity—the variety of genes (or units of heredity) in any population, (b) species diversity—the variety of species, (c) ecosystem diversity—the variety of communities or ecosystems. boat means any kind of vessel, however navigated. charter fishing licence means a licence issued under Division 2 of Part 4A and in force. commercial fisher means a person who holds a commercial fishing licence. commercial fishing licence means a commercial fishing licence issued under Division 1 of Part 4 and in force. Commonwealth Act means the Fisheries Management Act 1991 of the Commonwealth. Crown land means Crown land within the meaning of the Crown Land Management Act 2016. cultivate includes propagate, hatch, breed, rear and farm. Department means the Department of Primary Industries and Regional Development. ecologically sustainable development has the same meaning as under section 6(2) of the Protection of the Environment Administration Act 1991. electronic communication has the same meaning as it has in the Electronic Transactions Act 2000. examine includes count, measure, weigh and grade. exercise a function includes perform a duty. fish is defined in section 5. fisheries management charge means a fee, charge or contribution that is required to be paid by or under this Act. fisheries officer means a person for the time being appointed under Part 9 as a fisheries officer for the purposes of this Act. Note— Under Part 9, a police officer is also a fisheries officer for the purposes of this Act. fishery is defined in section 6. fishing activity means the activity of taking fish, including— (a) searching for fish, or (b) any activity that can reasonably be expected to result in the locating, aggregating or taking of fish, or (c) carrying fish by boat from the place where they are taken to the place where they are to be landed. fishing boat licence means a licence issued under section 107B and in force. fishing business is defined in section 34Q. fishing business determination is defined in section 34Q. fishing business transfer rules is defined in section 34T. fishing closure is defined in section 8. fishing determination means a determination of total allowable catch of fish or total allowable fishing effort made under Part 2A. fishing gear means any equipment (other than a boat or aircraft) used for fishing activities. foreign boat has the same meaning as it has in the Commonwealth Act. forfeited quota—see section 40V. freshwater means water in a river or creek that is not subject to tidal influence— (a) including any body of freshwater that is naturally or artificially stored (such as a freshwater lake, lagoon, dam, reservoir, pond, canal, channel or waterway), but (b) not including any coastal lake that is intermittently open to tidal influence. The regulations may, for the purpose of avoiding doubt about the application of this definition, specify the point at which any river, creek or other body of water becomes subject to tidal influence. function includes a power, authority or duty. habitat means any area occupied, or periodically or occasionally occupied, by fish or marine vegetation (or both), and includes any biotic or abiotic component. leased area means the area that is the subject of an aquaculture lease. management plan means— (a) in relation to a share management fishery—a management plan for the fishery made under Division 5 of Part 3, or (b) in relation to any other fishery—a management plan under the regulations referred to in section 40(2)(a). marine vegetation means any species of plant that at any time in its life must inhabit water (other than fresh water). master of a boat means the master or other person for the time being in charge or command of the boat. native title holder has the same meaning as it has in the Native Title Act 1993 of the Commonwealth. net includes anything attached to a net. owner of a fishing business is defined in section 34Q. oyster means any bivalve mollusc of the family Ostreidae. possession of a thing includes having the thing under control at any place, even though some other person has physical possession of the thing. possession limit means a possession limit (within the meaning of section 17A) imposed by the regulations or by an order under section 17C. premises includes the following— (a) land or a place, whether built on or not, Example— Land or a place could include a beach, trail, track, wharf, jetty, rock platform, riverbank and a similar location. (b) a structure or building. process fish means cut up, break up, shell, skin, shuck, purge, cook, pack, chill, freeze, can, preserve or otherwise treat or process fish. prohibited size fish means a fish declared by the regulations under Division 2 of Part 2 to be a prohibited size fish. public authority means a person or body established or constituted by an Act for a public purpose, and includes a Government Department, a local government authority or a state-owned corporation. public water land means land submerged by water (whether permanently or intermittently), being— (a) Crown land, or (b) land vested in a public authority, or (c) land vested in trustees for public recreation or for any other public purpose, or (d) land acquired by the Minister under Division 1 of Part 8, but does not include land which is the subject of an aquaculture lease or land of which a person has exclusive possession under a lease under any other Act. quota—see section 40R. records includes documents containing financial or any other kind of information. Note— The Interpretation Act 1987 defines document to include not only paper but also computer or other electronic records. recreational fisher means a fisher who takes fish by any method, otherwise than for sale. registered fish receiver means a fish receiver registered under Division 4 of Part 4. registered native title body corporate has the same meaning as it has in the Native Title Act 1993 of the Commonwealth. registered native title claimant has the same meaning as it has in the Native Title Act 1993 of the Commonwealth. restricted fishery means an exploratory, developmental or other restricted fishery declared under Division 3 of Part 4. Secretary means the Secretary of the Department. sell includes— (a) sell by wholesale, retail, auction or tender, or (b) barter or exchange, or (c) supply for profit, or (d) offer for sale, receive for sale or expose for sale, or (e) consign or deliver for sale, or (f) have in possession for sale, or (g) cause or allow any of the above to be done. Share Appeal Panel means the Share Management Fisheries Appeal Panel constituted under Division 9 of Part 3. share management fishery means a fishery specified in Schedule 1. share management plan means a management plan for a share management fishery. Share Register means the Share Management Fisheries Register kept in accordance with Division 10 of Part 3. species of fish includes fish that are of variety, domesticated form or hybrid of the species. supporting plan, in relation to a share management fishery, means a supporting plan made under Division 5 of Part 3. TAF Committee means the Total Allowable Fishing Committee appointed under Schedule 2. take fish includes— (a) catch or kill fish, or (b) gather or collect fish, or (c) remove fish from any rock or other matter, or attempt to do so. trust fund means a trust fund established under Division 3 of Part 8. vehicle includes aircraft, caravan or trailer. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. Note— Section 14.7 of the Biodiversity Conservation Act 2016 enables certain animals to be declared to be fish and certain fish to be declared to be animals, and also enables certain plants to be declared to be marine vegetation and certain marine vegetation to be declared to be plants, for the purposes of that Act and this Act. (2) In this Act, a reference to taking fish for sale includes a reference to taking fish for use as bait in taking fish for sale. (3) For the purposes of any provision of this Act that provides for an increased maximum penalty for a second or subsequent offence, an offence is to be regarded as a second or subsequent offence in relation to another offence only if— (a) a conviction was recorded in relation to the other offence, and (b) the other offence occurred on a separate occasion. Note— Penalties for offences are expressed in penalty units. Under the Crimes (Sentencing Procedure) Act 1999, the amount of a penalty unit is currently $110. (4) A reference in this Act, or in a regulation or another instrument made under this Act, to the common name of a species of fish does not limit any scientific description of a species of fish in this Act, the regulation or the instrument. If there is any inconsistency between the common name and the scientific description of a species, the scientific description of the species prevails. Note— The common name of a species of fish is generally the standard name for the fish as defined in the Australian Standard entitled AS 5300—2019, Australian Fish Names Standard published on 24 June 2019. 5 Definition of "fish" (1) In this Act, fish means marine, estuarine or freshwater fish or other aquatic animal life at any stage of their life history (whether alive or dead). (2) In this Act, fish includes— (a) oysters and other aquatic molluscs, and (b) crustaceans, and (c) echinoderms, and (d) beachworms and other aquatic polychaetes. (3) In this Act, fish also includes any part of a fish. (4) However, in this Act, fish does not include whales, mammals, reptiles, birds, amphibians or other things excluded from the definition by the regulations. 6 Definition of "fishery" (1) In this Act, fishery means a class of fishing activity. (2) For the purposes of this Act, a fishery may be identified by reference to any one or more of the following— (a) a species or other class of fish, (b) an area of waters or seabed, (c) a method of fishing, (d) a class of boat, (e) a class of persons, (f) a purpose of activities. 7 Waters to which Act applies (1) This Act applies— (a) in relation to all waters that are within the limits of the State, and (b) except for purposes relating to a fishery, or a part of a fishery, that is to be managed in accordance with the law of the Commonwealth pursuant to an arrangement under Division 3 of Part 5 and except for purposes prescribed by paragraph (d)—in relation to any waters of the sea not within the limits of the State that are on the landward side of waters adjacent to the State that are within the Australian fishing zone, and (c) for purposes relating to a fishery, or a part of a fishery, that is managed in accordance with the law of the State pursuant to an arrangement under Division 3 of Part 5—in relation to any waters to which the legislative powers of the State extend with respect to that fishery, whether pursuant to section 5 of the Coastal Waters (State Powers) Act 1980 of the Commonwealth or otherwise, and (d) for purposes relating to recreational fishing activities engaged in otherwise than by use of a foreign boat (other than recreational activities prohibited or regulated under a plan of management determined under section 17 of the Commonwealth Act)—in relation to any waters to which the legislative powers of the State extend with respect to such activities. Note— In many cases the legislative powers of the State will extend beyond three nautical miles, particularly in relation to recreational fishing. (2) This section is subject to any express limitations in this Act. (3) This Act is intended to have extraterritorial application in so far as the legislative powers of the State permit. Note— Section 7 and Part 5 implement Commonwealth/State arrangements with respect to fisheries and are in the same form as the fisheries legislation of other States and Territories. Part 1A Fishery management strategies 7A Definitions In this Part— designated fishing activity means a fishing activity described in Schedule 1A. EPA Act means the Environmental Planning and Assessment Act 1979. fishing activity includes any activity that may be the subject of environmental assessment under Schedule 1AA. fishing regulatory controls has the same meaning it has in Schedule 1AA. 7B Declaration of designated fishing activities (1) Schedule 1A describes designated fishing activities for the purposes of this Part. (2) The Governor may, by proclamation published on the NSW legislation website on the recommendation of the Minister, amend Schedule 1A by inserting, omitting or amending the description of a fishing activity. (3) The regulations may make provisions of a savings or transitional nature consequent on the amendment of Schedule 1A. 7C Fishery management strategy for designated activities (1) The Minister is to arrange for the preparation of a draft fishery management strategy for each designated fishing activity. (2) The Minister may, from time to time, revise the existing strategy for an activity or arrange for the preparation of a new draft strategy for the activity (whether or not a review of the existing strategy is required because performance indicators are not being met). (2A) An existing strategy may be revised by including provisions in a subsequent strategy (whether or not relating to the same activity) that are expressed to amend, replace or otherwise revise the provisions of the existing strategy. (2B) The Minister may set priorities, or revise priorities, for the implementation of any action contemplated by an existing strategy, in particular, for the purpose of co-ordinating the implementation of actions that are common to 2 or more strategies. (3) (Repealed) (4) A draft fishery management strategy becomes the existing fishery management strategy when it is approved by the Minister. However, the first fishery management strategy to be approved in respect of a designated fishing activity must be approved in accordance with section 7F. 7D Purpose of fishery management strategy (1) A fishery management strategy is the strategy for achieving the objectives of this Act with respect to the designated fishing activity for which it is prepared. The draft strategy is the basis for environmental assessment under Schedule 1AA of that activity. (2) A draft strategy is to be prepared (in accordance with guidelines agreed between the Minister administering this Act and the Minister administering the EPA Act) so as to enable— (a) an environmental assessment consistent with the principles on which assessments of activities are undertaken under Part 5 of the EPA Act, and (b) the cumulative environmental impact of fisheries approvals under this Act to be assessed. Note— Schedule 1AA makes special provision for the environmental assessment of designated fishing activities. Schedule 1AA, clause 4 requires the preparation of a draft fishery management strategy for any fishing activity that is subject to environmental assessment under the Schedule. The draft strategy is subject to public consultation in conjunction with the environmental impact statement for the assessment. 7E Content of fishery management strategy A fishery management strategy is to— (a) describe the designated fishing activity for which it is prepared, and (b) incorporate any management plan or draft management plan for the fishery concerned, and (c) outline the fishing regulatory controls or proposed fishing regulatory controls applicable to the designated fishing activity, and (d) outline the likely interaction of the designated fishing activity with other fishing activities, and (e) include performance indicators to monitor whether the objectives of the strategy (and the management plan) and ecologically sustainable development are being attained, and (f) describe how the designated fishing activity is to be monitored, and (g) specify at what point a review of the strategy is required when a performance indicator is not being satisfied. Note— See section 57 for content of a management plan for a share management fishery. 7F Revision of draft strategy and publication of approved strategy following environmental assessment (1) Following a determination under Schedule 1AA, the Minister is to revise the draft fishery management strategy for the designated fishing activity concerned and make any amendment that is necessary to reflect the result of the determination. (2) (Repealed) (3) The Minister is to publish the approved strategy (as so revised) in connection with the publication of the determination under Schedule 1AA. 7G Management plan not to be made until completion of environmental assessment (1) Until a determination is made under Schedule 1AA with respect to a designated fishing activity, the first management plan for the fishery concerned cannot be made. (2) If the management plan for a share management fishery is not made within the time required by section 42(3), the Minister is not required to recommend that the description of the fishery be omitted from Schedule 1 if the Minister is satisfied, after having consulted with any relevant advisory group or advisory council, that the fishery should be retained as a share management fishery despite the delay in making the plan. Part 2 General fisheries management Division 1 Fishing closures 8 Closure of waters to fishing (1) The Minister may from time to time, by notification, prohibit, absolutely or conditionally, the taking of fish, or of a specified class of fish, from any waters or from specified waters. (2) Any such prohibition is called a fishing closure. 9 Publication of notification of closures (1) The notification of a fishing closure is to be published in the Gazette. (2) However, if the Minister considers that the fishing closure is required urgently, the Minister may publish the notification using either or both of the following methods— (a) by causing a copy of the notification to be exhibited in a prominent place adjacent to the waters to which the fishing closure applies, (b) by publishing the notification on a NSW Government website used by the Department. (3) In any such urgent case, the Minister is to publish the notification in the Gazette as soon as practicable. (4) The Minister may take any other steps the Minister considers reasonable to publicly notify a fishing closure. (5) This section applies to an amendment or revocation of a fishing closure in the same way as it applies to a fishing closure. 10 Duration of closures (1) A fishing closure takes effect on the publication of the notification or on a later date specified in the notification. (2) A fishing closure remains in force, subject to this Act, for the period (not exceeding 5 years) specified in the notification. 11 Amendment or revocation of closures The Minister may from time to time amend or revoke a fishing closure by a further notification published in accordance with this Division. 12 General provisions relating to closures Sections 42–45 of the Interpretation Act 1987 apply to notifications of fishing closures in the same way as they apply to statutory rules within the meaning of that Act. Note— The above provisions of the Interpretation Act 1987 relate to standard provisions authorising the adoption of other publications by reference, the making of differential closures, the amendment or repeal of closures and judicial notice and presumptions as to validity for closures. 13 Regulations relating to closures The regulations may make provision for or with respect to giving effect to fishing closures or to any other matter relating to fishing closures. 14 Offences relating to closures (1) A person who takes fish in contravention of a fishing closure is guilty of an offence. Maximum penalty— (a) in the case of an individual— (i) 200 penalty units or imprisonment for 6 months (or both) for a first offence, or (ii) 400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or (b) in the case of a corporation— (i) 1,000 penalty units for a first offence, or (ii) 2,000 penalty units for a second or subsequent offence. (2) A person who is in possession of fish taken in contravention of a fishing closure is guilty of an offence. Maximum penalty— (a) in the case of an individual— (i) 200 penalty units or imprisonment for 6 months (or both) for a first offence, or (ii) 400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or (b) in the case of a corporation— (i) 1,000 penalty units for a first offence, or (ii) 2,000 penalty units for a second or subsequent offence. (3) It is a defence to a prosecution for an offence under subsection (2) if the person charged satisfies the court that the person did not know and could not reasonably have known that the fish had been taken in contravention of a provision of or made under this Act. Division 2 Offences relating to size, quantity and particular species of fish 14A Definitions (1) In this Division— commercial quantity of a priority species of fish means— (a) in relation to an offence against section 16—the quantity specified as a commercial quantity of fish for the species concerned in Column 3 of Part 1 of Schedule 1B, or (b) in relation to an offence against section 17 or 18—the quantity specified as a commercial quantity of fish for the species concerned in Column 3 of Part 2 of Schedule 1B. priority species of fish means— (a) in relation to an offence against section 16—a species of fish specified in Column 1 of Part 1 of Schedule 1B, or (b) in relation to an offence against section 17 or 18—a species of fish specified in Column 1 of Part 2 of Schedule 1B. (2) If the commercial quantity of a priority species of fish is specified by reference to the total weight of the fish concerned, the total weight of the fish is to be determined in accordance with the regulations. (3) The common name of a species of fish specified in Column 2 of Schedule 1B is for information purposes only and does not limit the description of the species of fish in Column 1. (4) The Governor may, by regulation made on the recommendation of the Minister, amend Schedule 1B to insert, alter or omit any matter in that Schedule. 15 Declaration of prohibited size fish (1) The regulations may declare that fish of a specified species that do not comply with a minimum size, maximum size or range of sizes specified for fish of that species are prohibited size fish. (1A) The regulations may declare different prohibited size fish for different classes of persons or for different circumstances. (2) The regulations may prescribe the method of determining the size of any class of fish. (3) The regulations may specify the size of fish by reference to measurement or weight (or both), or by reference to the number of individuals in any specified weight. 16 Prohibited size fish (1) A person who has prohibited size fish in the person's possession is guilty of an offence. Maximum penalty— (a) in the case of an individual— (i) 200 penalty units or imprisonment for 6 months (or both) for a first offence, or (ii) 400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or (b) in the case of a corporation— (i) 1,000 penalty units for a first offence, or (ii) 2,000 penalty units for a second or subsequent offence. (2) A person who has prohibited size fish in the person's possession, in circumstances of aggravation, is guilty of an offence. Maximum penalty— (a) in the case of an individual— (i) 400 penalty units or imprisonment for 12 months (or both) for a first offence, or (ii) 800 penalty units or imprisonment for 18 months (or both) for a second or subsequent offence, or (b) in the case of a corporation— (i) 2,000 penalty units for a first offence, or (ii) 4,000 penalty units for a second or subsequent offence. (3) A person who sells prohibited size fish is guilty of an offence. Maximum penalty— (a) in the case of an individual— (i) 200 penalty units or imprisonment for 6 months (or both) for a first offence, or (ii) 400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or (b) in the case of a corporation— (i) 1,000 penalty units for a first offence, or (ii) 2,000 penalty units for a second or subsequent offence. (4) A person who sells prohibited size fish, in circumstances of aggravation, is guilty of an offence. Maximum penalty— (a) in the case of an individual— (i) 400 penalty units or imprisonment for 12 months (or both) for a first offence, or (ii) 800 penalty units or imprisonment for 18 months (or both) for a second or subsequent offence, or (b) in the case of a corporation— (i) 2,000 penalty units for a first offence, or (ii) 4,000 penalty units for a second or subsequent offence. (5) For the purposes of subsections (2) and (4), a person has possession of prohibited size fish, or sells prohibited size fish, in circumstances of aggravation if— (a) the prohibited size fish in possession or sold by the person are a priority species of fish, and (b) the quantity of prohibited size fish in possession or sold by the person is a commercial quantity of that species of fish. 17 Bag limits—taking of fish (1) The regulations may specify the maximum quantity of fish of a specified species, or of a specified class, that a person may take on any one day (the daily limit). (2) A person who takes on any one day more fish than the daily limit of those fish is guilty of an offence. Maximum penalty— (a) in the case of an individual— (i) 200 penalty units or imprisonment for 6 months (or both) for a first offence, or (ii) 400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or (b) in the case of a corporation— (i) 1,000 penalty units for a first offence, or (ii) 2,000 penalty units for a second or subsequent offence. (2A) A person who takes on any one day more fish than the daily limit of those fish, in circumstances of aggravation, is guilty of an offence. Maximum penalty— (a) in the case of an individual— (i) 400 penalty units or imprisonment for 12 months (or both) for a first offence, or (ii) 800 penalty units or imprisonment for 18 months (or both) for a second or subsequent offence, or (b) in the case of a corporation— (i) 2,000 penalty units for a first offence, or (ii) 4,000 penalty units for a second or subsequent offence. (2B) For the purposes of subsection (2A), a person takes fish in circumstances of aggravation if— (a) the fish taken are a priority species of fish, and (b) the quantity of fish taken is a commercial quantity of that species of fish. (3) The regulations may speci