New South Wales: 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 specify different daily limits for commercial fishers or other classes of fishers or in any other circumstances specified in the regulations. The regulations may also include restrictions as to size or otherwise in respect of any daily limit of fish. (3A) The regulations may specify a daily limit of zero for fish of a specified species or of a specified class. In that case, a reference in this section to taking more fish than the daily limit of those fish is to be read as a reference to taking any of those fish. (4) This section does not authorise the taking of fish in contravention of a fishing closure or other provision of or made under this Act. (5) The regulations may provide that the maximum quantity of any fish that may be taken applies to a period other than one day. In that case, a reference in this section to any one day is to be read as a reference to that other period. (6) The Minister is required to consult any relevant advisory council or advisory group about any proposal to specify or change daily limits under this section. 17A Bag limits—possession of fish (1) Possession limits for fish may be imposed under this Act. (2) A possession limit is the maximum quantity of fish that a person may have in the person's possession in any specified circumstances. (3) A possession limit may be imposed in relation to a specified species of fish or fish of a specified class. (4) A possession limit may apply generally or be limited to— (a) a particular class of fishers, or (b) fish of a particular size, or (c) particular waters, or (d) any other specified circumstances. (5) The possession limit of any fish need not be the same as the daily limit of those fish. (6) A possession limit of zero may be imposed. (7) This section does not authorise the possession of fish in contravention of any other provision of or made under this Act. 17B How possession limits are imposed (1) A possession limit may be imposed— (a) by the regulations, or (b) by Ministerial order. (2) If there is any inconsistency between a possession limit imposed by the regulations and a possession limit imposed by Ministerial order, the possession limit imposed by Ministerial order prevails. (3) The Minister is required to consult any relevant advisory council or advisory group about any proposal to impose a possession limit by regulation or to change possession limits imposed by the regulations. (4) In this section— Ministerial order means an order of the Minister under section 17C. 17C Ministerial order imposing possession limit (1) The Minister may, by order, impose a possession limit. (2) The order is to be published in the Gazette. (3) However, if the Minister considers that the imposition of a possession limit is required urgently, the Minister may publish notification of the order using either or both of the following methods— (a) by causing a copy of the order to be exhibited in a prominent place adjacent to the waters to which the order applies, (b) by publishing notice of the order on a NSW Government website used by the Department. (4) In any such urgent case, the Minister is to publish the order in the Gazette as soon as practicable. (5) The Minister may take any other steps the Minister considers reasonable to publicly notify an order under this section. (6) Subsections (2)–(5) apply to an amendment or revocation of an order under this section in the same way as they apply to the making of an order under this section. (7) An order under this section has effect for the period (not exceeding 5 years) specified in the order. (8) Subsection (7) does not prevent the making of a further order under this section. (9) Sections 40 and 41 of the Interpretation Act 1987 apply in respect of an order under this section (including an order that amends or revokes an order) in the same way as they apply in respect of a statutory rule. (10) For that purpose, a reference in those sections to the day of publication on the NSW legislation website is to be read as a reference to the day of first publication of the order in accordance with this section. 18 Offence of contravening possession limit (1) (Repealed) (2) A person who has in the person's possession more than the possession limit of any fish is guilty of an offence. This subsection applies irrespective of the period over which the fish were taken. 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 has in the person's possession, in circumstances of aggravation, more than the possession limit of any fish is guilty of an offence. This subsection applies irrespective of the period over which the fish were taken. 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 has possession of fish in circumstances of aggravation if— (a) the fish in the person's possession are a priority species of fish, and (b) the quantity of fish in the person's possession is a commercial quantity of that species of fish. (3) (Repealed) (3A) If a possession limit of zero is imposed for fish of a specified species or of a specified class, a reference in this section to being in possession of more than the possession limit of those fish is to be read as a reference to being in possession of any of those fish. (4), (5) (Repealed) 18A Additional monetary penalty for bag limit offences involving priority species (1) A court that finds a person guilty of an offence against section 17 or 18 in respect of any species of fish that is a priority species of fish in relation to the offence concerned may impose an additional penalty for the offence of up to 10 times the market value of the fish the subject of the offence. (2) The market value of the fish the subject of the offence is the amount determined by the court as the price at which the fish might reasonably have been expected to be sold by the person who committed the offence at the time the offence was committed. (3) In determining the market value of the fish the subject of the offence, the court may have regard to the following— (a) the price for which fish of that species were being sold at the time of the offence (whether or not to purchasers within this State and whether or not legally), (b) the price for which the fish were sold, or for which fish of that species have previously been sold, by the person who committed the offence, (c) any other matters it considers appropriate. (4) The court may determine the market value of the fish the subject of the offence by reference to the weight of the fish the subject of the offence, the number of fish the subject of the offence or by any other method it considers appropriate. (5) The penalty provided for by this section is in addition to the maximum penalty provided for by this Act in respect of the particular offence concerned. 19 Protected fish (1) The regulations may declare that fish of a specified species are protected fish. (2) A person who takes protected fish is guilty of an offence. (3) A person who has protected fish in the person's possession is guilty of an offence. (4) The regulations may declare the possession of any protected fish to be prohibited absolutely. (5) If the possession of protected fish is prohibited absolutely, subsection (3) applies whether or not the fish are taken from waters to which this Act applies. 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. 20 Fish and waters protected from commercial fishing (1) The regulations may declare that fish of a specified species are protected, absolutely or conditionally, from all or a class of commercial fishing. (2) The regulations may declare specified waters to be waters in which all or a class of commercial fishing is prohibited absolutely or conditionally. (3) A person who— (a) takes fish of a species declared under subsection (1) in breach of the declaration, or (b) takes fish from waters declared under subsection (2) in breach of the declaration, or (c) sells fish taken in breach of a declaration under subsection (1) or (2), is guilty of an offence. Maximum penalty— (a) in the case of an individual— (i) 1,000 penalty units or imprisonment for 6 months (or both) for a first offence, or (ii) 2,000 penalty units or imprisonment for 12 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. (4) The regulations may declare the sale of any species of fish that is protected from commercial fishing under subsection (1) to be prohibited absolutely. (5) A person who sells fish of a species declared under subsection (4) is guilty of an offence. Maximum penalty— (a) in the case of an individual— (i) 1,000 penalty units or imprisonment for 6 months (or both) for a first offence, or (ii) 2,000 penalty units or imprisonment for 12 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. (6) Subsection (5) applies whether or not the fish were taken from waters to which this Act applies. (7) A person cannot be found guilty of both an offence against subsection (3)(c) and an offence against subsection (5) in respect of the same sale. (8) Nothing in this section limits the power of the Minister to make a fishing closure in relation to commercial fishing. 20A Fish and waters protected from recreational fishing (1) The regulations may declare that fish of a specified species are protected, absolutely or conditionally, from all or a class of recreational fishing. (2) The regulations may declare specified waters to be waters in which all or a class of recreational fishing is prohibited absolutely or conditionally. (3) A person who— (a) takes fish of a species declared under subsection (1) in breach of the declaration, or (b) takes fish from waters declared under subsection (2) in breach of the declaration, 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) Nothing in this section limits the power of the Minister to make a fishing closure in relation to recreational fishing. 20B Shark finning and related prohibitions (1) A person must not, while on board a boat in any waters— (a) remove a fin from any species of shark, or (b) be in possession of a shark fin that is not naturally attached to the body of a shark, or (c) be in possession of any part of a shark. 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) The regulations may provide for circumstances in which a person does not commit an offence against this section. 21 Defences (1) It is a defence to a prosecution for an offence under this Division if the person charged satisfies the court that— (a) the fish were lawfully taken from or lawfully cultivated in waters to which this Act does not apply, or (b) the fish were cultivated under the authority conferred by an aquaculture permit, or (c) the fish were taken or in possession under the authority conferred by any other permit under this Act, or (d) the person has any other defence that is prescribed by the regulations. (2) Subsection (1)(a) does not apply to the following offences— (a) an offence under section 19(3), if the possession of the protected fish is prohibited absolutely by the regulations, (b) an offence under section 20(5). Division 2A Trafficking in fish 21A Definitions (1) In this Division— indictable quantity of a species of fish means the quantity specified as an indictable quantity of fish for the species concerned in Column 3 of Schedule 1C. indictable species of fish means a species of fish specified in Column 1 of Schedule 1C. (2) If an indictable quantity of a 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 1C 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 1C to insert, alter or omit any matter in that Schedule. 21B Trafficking in fish (1) A person must not traffic in an indictable species of fish. Maximum penalty—Imprisonment for 10 years. (2) For the purposes of this Division, a person traffics in an indictable species of fish if— (a) the person dishonestly takes, sells, receives or possesses fish of an indictable species, and (b) the taking, selling, receiving or possession of the fish by the person contravenes another provision of this Act or of the regulations, and (c) the quantity of fish of an indictable species taken, sold, received or possessed is not less than an indictable quantity of the species concerned. (3) Any defence that is applicable to proceedings for an offence in respect of a contravention of another provision of this Act or of the regulations also applies to proceedings for an offence against this section in respect of the same contravention. (4) A person may be found guilty of an offence against this section in relation to a contravention of another provision of this Act whether or not the person has been found guilty of an offence against another provision of this Act in relation to that contravention. 21C Additional monetary penalty may be imposed (1) A court that finds a person guilty of an offence against section 21B may impose an additional penalty for the offence of up to 10 times the market value of the fish the subject of the offence. (2) The market value of the fish the subject of the offence is the amount determined by the court as the price at which the fish might reasonably have been expected to be sold by the person who committed the offence at the time the offence was committed. (3) In determining the market value of the fish the subject of the offence, the court may have regard to the following— (a) the price for which fish of that species were being sold at the time of the offence (whether or not to purchasers within this State and whether or not legally), (b) the price for which the fish were sold, or for which fish of that species have previously been sold, by the person who committed the offence, (c) any other matters it considers appropriate. (4) The court may determine the market value of the fish the subject of the offence by reference to the weight of the fish the subject of the offence, the number of fish the subject of the offence or by any other method it considers appropriate. (5) The penalty provided for by this section is in addition to the maximum penalty provided for by this Act in respect of the offence concerned. Division 3 Fishing gear 22 Registration of fishing gear (1) The regulations may make provision for or with respect to the registration of specified classes of fishing gear. (2) If a class of fishing gear is registrable, a person who uses unregistered gear of that class to take fish is guilty of an offence. Maximum penalty—In the case of a corporation, 50 penalty units or, in any other case, 25 penalty units. 23 Regulations relating to fishing gear The regulations may make provision for or with respect to fishing gear (including the classes of nets or traps that may lawfully be used for taking fish). 24 Lawful use of nets or traps (1) A person must not use a net or trap for taking any fish unless its use by the person for taking those fish is declared by the regulations to be a lawful use of the net or trap. 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) This section does not affect any other prohibition of the use of a net or trap under a fishing closure or other provision of or made under this or any other Act. 25 Possession of illegal fishing gear (1) A person who is in possession of any fishing gear in, on or adjacent to any waters is guilty of an offence if— (a) the use by that person of that fishing gear for taking fish from those waters is, at that time, prohibited by or under this Act, or (b) the taking of fish from those waters is, at that time, prohibited by or under this Act. 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 on board a boat is taken to be in possession of any fishing gear found in the boat. (3) It is a defence to a prosecution for an offence under this section if the person charged satisfies the court that the fishing gear was being transported, in accordance with the written authority of a fisheries officer, to waters where the person could lawfully take fish with that gear. (4) It is a defence to a prosecution for an offence under this section if the person charged satisfies the court that the fishing gear was in his or her possession for a lawful purpose (including any purpose prescribed as lawful by the regulations). Division 4 26–34 (Repealed) Division 4A Recreational fishing fee 34A Definitions In this Division— fishing fee means a recreational fishing fee payable under this Division. fishing fee exemption certificate means a certificate issued under section 34I and in force. official receipt means a receipt issued under this Division for payment of a recreational fishing fee, being— (a) if the fishing fee was paid in person— (i) the hard copy receipt, or a copy of the receipt, issued as evidence of payment, or (ii) a photo, including a photo on a smartphone or other mobile device, of the receipt that clearly displays the information on the receipt, or (b) if the fishing fee was paid over the telephone or by electronic means— (i) the receipt number issued as evidence of payment, or (ii) a photo, including a photo on a smartphone or other mobile device, of the receipt that clearly displays the information on the receipt, or (c) any other evidence of payment of a fishing fee prescribed by the regulations. 34AA Purpose of fishing fees The purpose of fishing fees is to provide revenue to assist activities supported through the recreational fishing trust funds established under Division 3 of Part 8, including the following— (a) enhancing, maintaining or protecting recreational fishing, (b) carrying out research into fish and their ecosystems, (c) managing recreational fishing, (d) ensuring compliance with recreational fishing regulatory controls. 34B Recreational fishing fee A recreational fishing fee is payable by recreational fishers as required by this Division. 34C Recreational fishers required to pay fishing fee (1) A fishing fee is payable by all recreational fishers, unless exempted by or under this section. (2) A fisher is exempt from paying a fishing fee— (a) if the fisher is under 18 years of age, or (b) if the fisher is of or over 18 years of age and is only assisting a fisher under 18 years of age to take fish by means of a single rod or line, or (c) if the fisher holds a licence, permit or other authority under this Act or the regulations and is taking fish in accordance with that licence, permit or other authority, or (d) if the fisher is engaging in recreational fishing activities that are exempt from payment of a fishing fee by virtue of a fishing fee exemption certificate that is in force, or (e) if the fisher is taking fish from water subject to an aquaculture permit and is taking fish to which the permit relates, or (f) if the fisher is an Aboriginal person, or (g) if the fisher is taking fish from an aquarium, or from a body of water of a class exempted by the regulations, or (h) if the fisher is a fisher of a class exempted by the regulations. (3) The regulations may require recreational fishers to produce evidence that they are exempt from paying a fishing fee. 34D Periods for which fishing fee payable (1) A fishing fee is payable for any period during which a recreational fisher takes fish from any waters otherwise than for sale. (2) A fishing fee may be paid for any of the following periods— (a) a period of 3 days, (b) a period of 1 month, (c) a period of 12 months, (d) a period of 3 years. (3) The regulations may prescribe other periods for which a fishing fee may be paid (whether in addition to, or substitution for, the periods referred to in subsection (2)). 34E Amount of fishing fee (1) The amount of the fishing fee is (subject to this section)— (a) for a period of 3 days—$5, or (a1) for a period of 1 month—$10, or (b) for a period of 12 months—$25, or (c) for a period of 3 years—$70. (2) The regulations may prescribe a different amount for any such period and may prescribe the amount for any other period for which a fishing fee may be paid. 34F Reductions in fishing fee payable The regulations may provide for reductions in the amount of the fishing fee otherwise payable by persons of a specified class. 34G Issue of receipt on payment of fishing fee (1) A person who pays a fishing fee is entitled to be issued with an official receipt for the payment. (2) A receipt is evidence of the payment of the fishing fee and not an authority to take fish, and accordingly cannot be refused or made subject to any conditions. (3) A receipt is to be in a form approved by the Minister. (3A) The Secretary is to make appropriate arrangements to ensure that a person who pays a fishing fee is issued with an official receipt for the payment. (4) The regulations may make provision for the issue of replacement receipts for receipts that are lost, destroyed or damaged. (5) A receipt is not transferable. 34H Arrangements for collection of fishing fees and issue of receipts (1) The Secretary may enter into arrangements with any person for the collection of fishing fees and the issue of official receipts. A person who enters into such an arrangement is an authorised agent for the purposes of this Act. (2) The Secretary is to ensure that sufficient arrangements are made to enable the payment of fishing fees in convenient locations throughout the State. (3) An arrangement may make provision for the payment of a commission to the authorised agent, whether by way of the retention of a percentage of the amount of fishing fees paid or by way of a separate payment. (4) An arrangement may make provision for the authorised agent to make specified records, and follow specified procedures, with respect to the collection and remittance of fishing fees and the issue of official receipts. 34I Fishing fee exemption certificates (1) The Minister may issue a fishing fee exemption certificate in respect of any recreational fishing activities. (2) A certificate exempts persons carrying out those recreational fishing activities from the obligation to pay a fishing fee under this Division. (3) A certificate may be issued— (a) to a person in respect of recreational fishing activities that are carried out under the supervision or guidance of the person (or an employee or agent of the person), or (b) to the owner of a boat (or another person authorised by the owner) in respect of recreational fishing activities that are carried out on the boat, or (c) to such other persons or class of persons, and in respect of such other activities, as the regulations may prescribe. (4) The fee (if any) payable for the certificate and other matters concerning the certificate are to be prescribed by the regulations. The fee for the certificate is taken to be a fishing fee paid under this Division for the purposes of Division 3 of Part 8. 34J Offences (1) A recreational fisher who is required by this Division to pay a fishing fee is guilty of an offence if the fisher fails to pay the fishing fee. Maximum penalty—20 penalty units. (2) A recreational fisher who is required by this Division to pay a fishing fee is guilty of an offence if the fisher does not have an official receipt for the payment of the fishing fee in his or her immediate possession when taking fish from any waters. Maximum penalty—20 penalty units. (3) For the purposes of proceedings under this section, a person who is in possession of fishing gear on, in or adjacent to any waters is presumed conclusively to be taking fish from those waters (even though the person takes or proposes to take fish only from other waters outside the State). The regulations may provide exemptions from this subsection. (4) For the purposes of this section, a person has an official receipt in his or her immediate possession only if the person is able to immediately produce the official receipt if required. Division 4B Acquisition of commercial fishing entitlements 34K Purpose of Division The purpose of this Division is to provide an equitable mechanism for the reallocation of fisheries resources and for the payment of compensation to commercial fishers for the acquisition of their fishing entitlements. 34L Declaration by Minister of acquisition of entitlements (1) The Minister may, by order published in the Gazette— (a) declare that any fishery (or part of a fishery) specified in the order is a fishery to which this Division applies, and (b) specify the relevant commercial fishing entitlements that are to be acquired under this Division. (2) For the purposes of this Division— (a) any such declaration is an acquisition declaration, and (b) the fishery (or the part of a fishery) to which the declaration relates is the declared fishery, and (c) the specified commercial fishing entitlements are the acquired entitlements. 34M Consultation on proposed acquisition declaration The Minister is required to give the following persons and bodies an opportunity to make submissions on any proposed acquisition declaration and to take any submission that is duly made into account— (a) the persons whose commercial fishing entitlements are proposed to be acquired, (b) any relevant advisory council or advisory group, (c) the local community in the area affected by the proposed declaration. Note— Section 284 sets out the public consultation procedure. 34N Termination of commercial fishing entitlements following declaration of acquisition (1) As soon as practicable after an acquisition declaration, the Minister is to cancel the acquired entitlements. (2) For that purpose, the Minister may do any one or more of the following— (a) cancel any shares in a share management fishery, (b) cancel a commercial fishing licence, (c) take any other action available to the Minister. 34O Entitlement to compensation for acquired entitlements (1) The persons who held acquired entitlements that are cancelled under this Division are entitled (subject to this Division) to compensation from the State for the market value of the entitlements they held— (a) as at 19 January 2000, subject to paragraph (b), or (b) as at a later date notified in the acquisition declaration. (2) If the amount of the compensation is not agreed between the Minister and the person entitled to compensation, the Minister is to determine the amount after a review of the matter by a panel constituted by the Minister in accordance with the regulations. (3) If the person entitled to compensation is not satisfied with the review of the matter by the panel, the Minister may (at the person's request) refer the matter to the Valuer-General for advice as to the amount of compensation