Inland Fisheries Act 1995 (Tas)

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 1. Short title This Act may be cited as the Inland Fisheries Act 1995 . 2. Commencement This Act commences on a day to be proclaimed. 3. Interpretation (1) In this Act – acclimatised fish means a kind or species of fish that is not indigenous to inland waters; amend means – (a) add any matter (including a condition if this Act provides for conditions to be specified in the document being amended); and (b) omit any matter (including a condition); and (c) omit any matter (including a condition) and substitute other matter (including a condition if this Act provides for conditions to be specified in the document being amended); Appeal Tribunal means the Tasmanian Civil and Administrative Tribunal; applicable fish means a kind or species of fish declared under section 60 ; approved means approved by the Director; Atlantic salmon means the species Salmo salar of the family Salmonidae; boat includes a ship or vessel of any kind; commercial freshwater fishing licence means a licence referred to in section 21 ; controlled fish means fish declared as such under section 149 ; 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 ; 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 dealer's registration certificate means the certificate issued under section 65; 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; 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 who is the holder of a fish dealer's registration certificate; 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; 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 of a river under section 6 (1) ; and (b) the seaward limit of a river referred to in section 6 (3) ; 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) Tasmanian Mudfish Neochanna cleaveri Scott; (f) Tasmanian smelt Retropinna tasmanica McCulloch. (2) If any licence, permit, certificate of registration, permission, consent, approval, other like document or exemption is subject to conditions specified or otherwise contained in the document or exemption, it is sufficient for the conditions to be – (a) specified or otherwise contained in the document or exemption; or (b) attached to the document or exemption; or (c) provided to the holder of the document at the time of issuing the document or exemption; or (d) provided to the holder of the document or exemption at any other time if they are provided with a written notice stating that they are conditions which attach to the document or exemption. 4. Freshwater fish (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 in, or after they have been taken from, State 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. 6. Seaward limit of river (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. 7. State waters 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. 8. Excepted 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 declare waters to be excepted waters. 9. . . . . . . . . 10. Inconsistency with Water Management Act 1999 Any provision of the Water Management Act 1999 which is inconsistent with a provision of this Act prevails over this Act to the extent of that inconsistency. PART 2 - Director and Council Division 1 - Director of Inland Fisheries 11. Appointment of Director (1) The Minister may appoint a State Service officer or State Service employee to be Director of Inland Fisheries. (2) A person appointed as Director of Inland Fisheries may hold that office in conjunction with State Service employment. (3) The Director is an employee for the purposes of the Public Sector Superannuation Reform Act 2016 . (4) . . . . . . . . (4A) . . . . . . . . (5) . . . . . . . . (6) . . . . . . . . (7) . . . . . . . . 12. Corporation sole (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 (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 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. 15. Assistance 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. 16. Funds of Director (1) The funds of the Director consist of – (a) any money appropriated by Parliament for the purpose of this Act; and (b) any fees and royalties 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) 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. 17. Accounts and audit (1) The Director may establish any account in any financial institution. (2) The Financial Management Act 2016 applies to the Director as if the Director were an Agency within the meaning of that Act. 18. Delegation (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. 19. Employees Subject to and in accordance with the State Service Act 2000 , persons may be appointed or employed for the purpose of this Act. 20. Officers (1) The Secretary may appoint a person appointed or employed pursuant to section 19 as an officer for the purpose of this Act. (2) 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) 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 20A. Inland Fisheries Advisory Council (1) The Inland Fisheries Advisory Council is established. (2) The Council consists of – (a) one person who represents the interests of freshwater angling associations; and (b) 3 persons who hold 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 person who represents the interests of freshwater commercial fisheries; and (d) one person with expertise in the area of conservation of freshwater ecosystems; and (e) one person with expertise in the area of tourism relating to inland fisheries; and (f) the Director; and (g) the chairperson; and (h) such other persons as the Minister considers appropriate. (2A) The members of the Council are appointed by the Minister. (3) Schedule 3 has effect with respect to membership and meetings of the Council. 20B. General functions and powers of Council (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 freshwater fishing licence 21. Commercial freshwater fishing licence (1) A person must not take freshwater fish for commercial purposes except under the authority of and in accordance with a commercial freshwater fishing licence. Penalty: Fine not exceeding 100 penalty units. (2) Subsection (1) does not apply to a person who takes freshwater fish on behalf of, and as authorised or required by, the holder of a commercial freshwater fishing licence. 22. . . . . . . . . 23. . . . . . . . . 24. Application for commercial freshwater fishing licence (1) An application for the grant, variation, renewal, transfer or replacement of a commercial freshwater fishing licence is to– (a) be in an approved form; and (b) contain any information the Director requires; and (c) be accompanied by the prescribed fee; and (d) be lodged with the Director. (2) The Director may require a person to– (a) 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 freshwater fishing licence (1) The Director may– (a) grant an application for a commercial freshwater fishing licence subject to any condition the Director determines; or (b) refuse to grant an application. (2) The Director may only grant an application for a commercial freshwater fishing 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 commercial freshwater fishing licence may be limited in one or more of the following matters: (a) the taking of a species of freshwater fish specified in the licence; (b) the taking of freshwater fish at a particular stage of life specified in the licence; (c) the taking of freshwater fish from inland waters specified in the licence; (d) any other matter the Director considers relevant. (3A) Each of the following persons must comply with the conditions of a commercial freshwater fishing licence in respect of the taking of freshwater fish under that licence: (a) the holder of the licence; (b) a person authorised or required by the holder of the licence to take freshwater fish on behalf of the holder. Penalty: Fine not exceeding 100 penalty units. (3B) If a person authorised or required by the holder of a commercial freshwater fishing licence to take freshwater fish on behalf of that holder contravenes a condition of the licence, both that person and that holder are taken to contravene the condition. (4) The Director, by notice in writing, is to notify the applicant of the grant or refusal to grant the application. 26. Issue of commercial freshwater fishing licence (1) If the Director grants an application for a commercial freshwater fishing licence, the Director is to issue the licence on payment of the prescribed fee. (2) A commercial freshwater fishing 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) specify any condition the Director determines under section 25 ; and (e) be signed in ink by the holder of the licence. (3) A commercial freshwater fishing licence that is not issued by the Director is of no effect. (4) A person, other than the Director, must not issue a commercial freshwater fishing licence. Penalty: Fine not exceeding 10 penalty units. 27. Period of commercial freshwater fishing licence A commercial freshwater fishing licence is in force for the period specified in the licence, unless sooner cancelled. 28. Sale of commercial freshwater fishing licences (1) The Director may sell a commercial freshwater fishing licence to any person the Director determines. (2) The Director may determine the price for the sale of a commercial freshwater fishing licence by either or both of the following: (a) the process of tender; (b) any other process the Director considers appropriate. (3) If the Director sells a commercial freshwater fishing 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) 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 freshwater fishing licence (1) The Director, by notice in writing served on the holder of a commercial freshwater fishing licence, may vary a commercial freshwater fishing 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 freshwater fishing 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) The Director may vary a commercial freshwater fishing licence on application and on payment of the prescribed fee. 30. Substitute licence If the Director varies a commercial freshwater fishing 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 freshwater fishing licence (1) The holder of a commercial freshwater fishing licence may apply to the Director for approval to transfer the licence. (2) 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) The Director may approve the transfer of the licence subject to any condition the Director determines. (4) The Director may refuse to approve the transfer of the licence if not satisfied as required under subsection (2) . (5) 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 freshwater fishing licence (1) The holder of a commercial freshwater fishing licence may apply to the Director for the renewal of the licence. (2) The Director may– (a) grant an application to renew the licence; or (b) refuse to grant the application. (3) 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, if any, have been paid. (4) The Director may impose any condition on the renewed licence the Director determines. (5) The Director, by notice in writing, is to notify the holder of the licence of the renewal or refusal to renew the licence. (6) This Act applies to a renewed licence and its conditions as if it were the original licence and conditions. 33. Cancellation of commercial freshwater fishing licence (1) The Director, by notice in writing served on the holder of a commercial freshwater fishing 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 freshwater fishing 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 freshwater fishing 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 freshwater fishing licence (1) The holder of a commercial freshwater fishing licence, by notice in writing to the Director, may surrender the licence. (2) A commercial freshwater fishing 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 freshwater fishing licence is not entitled to any compensation or refund in respect of any matter arising from the surrender. 35. Returns (1) The holder of a commercial freshwater fishing 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) any details and information the Director requires; and (b) any other prescribed details and information. 36. Disqualification from applying for or obtaining licence 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 freshwater fishing licence for a specified period. Division 2 - Recreational licences 37. Angling licence (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) 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) 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) The Direc