South Australia: Aquaculture Act 2001 (SA)

South Australia Aquaculture Act 2001 An Act to regulate marine and inland aquaculture; and for other purposes. Contents Part 1—Preliminary 1 Short title 3 Interpretation 4 Ecologically sustainable development 4A Suitable person to be granted licence 5 Crown bound 6 Application of Act 6A Licence or other right is not personal property for the purposes of Commonwealth Act 7 Interaction with other Acts Part 2—Objects of Act 8 Objects of Act Part 3—Efficient administrative practices 9 Efficient administrative practices Part 4—Aquaculture policies Division 1—General 10 Interpretation 11 Nature and content of policies 12 Procedures for making policies 13 Parliamentary scrutiny 14 Certain amendments may be made by Gazette notice only 15 Availability and evidence of policies Division 2—Contravention of mandatory provisions 16 Offence to contravene mandatory provisions of policy Part 5—Requirement for licence 17 Requirement for licence Part 6—Leases Division 1—General 18 Application of Part 19 Requirement for lease 20 Concurrence under Harbors and Navigation Act 21 Leases not permitted in respect of aquaculture exclusion zones 22 General process for grant and renewal of leases and corresponding licences 25 Lease conditions 25A Variation of lease or lease conditions by or with consent of lessee 25B Cancellation of lease 25C Surrender of lease 25D Corresponding licences terminated on termination of lease 26 Classes of leases Division 2—Pilot leases 27 Pilot leases outside aquaculture zones 28 Granting of corresponding licence for pilot lease 29 Term and renewal of pilot leases 30 Pilot leases not transferable 31 Licences may only be held by lessees Division 4—Production leases 34 Granting of production leases limited to aquaculture zones 35 Granting of production leases and corresponding licences in public call areas 36 Granting of production leases and corresponding licences if public call not required 37 Conversion of pilot leases to production leases 38 Term and renewal of production leases 39 Transfer of production leases Division 4A—Research leases 39A Granting of research leases and corresponding licences 39B Term and renewal of research leases 39C Research leases not transferable 39D Licences may only be held by lessees Division 5—Emergency leases 40 Granting of leases and corresponding licences in circumstances of emergency 43 Only holder of leases affected by emergency may hold emergency leases 44 Term and renewal of emergency leases 44A EPA and Minister to be notified of emergency lease Division 6—Occupation of marked-off areas 45 Exclusive occupation of marked-off areas 46 Control of marked-off areas 47 Interference with stock or equipment within marked-off areas 48 Offence to pretend to be authorised person Division 7—Power to require or carry out work 48A Power to require or carry out work Part 7—Licences 49 Applications for licences other than corresponding licences 50 Grant of licences other than corresponding licences 50A Term and renewal of licences other than corresponding licences 51 Licences may be held jointly 52 Licence conditions 53 Annual fees 55 Transfer of licences 56 Surrender of licences 57 Suspension or cancellation of licences 58 Power to require or carry out work Part 7A—Tourism development 58A Preliminary 58B Application of Planning, Development and Infrastructure Act 2016 58C Offence to carry out aquaculture tourism development 58D Aquaculture tourism development authorisation 58E Tourism leases and tourism licences 58F Concurrences and consents 58G Public notice 58H Power to require or carry out work 58I Removal of unauthorised development Part 8—Reference of matters to EPA 59 Reference of matters to EPA Part 9—Reviews 60 Reviews Part 10—Administration Division 1—Minister 60A Guidelines for ATAB assessment of lease and corresponding licence applications 61 Power of delegation 62 Acquisition of land Division 3—Aquaculture Tenure Allocation Board 71 Establishment of Aquaculture Tenure Allocation Board 72 Functions of ATAB 73 Membership of ATAB 74 Terms and conditions of membership 75 Remuneration 76 Conflict of interest under Public Sector (Honesty and Accountability) Act 77 Validity of acts of ATAB 78 Procedures of ATAB Division 4—Fund 79 Aquaculture Fund Division 5—Public register 80 Public register 81 Public register to be available for inspection Division 6—Fisheries officers and their powers 82 Fisheries officers and their powers Part 10A—Compliance with general environmental duty and environment protection policies 82A Administration of general environmental duty and environment protection policies by Minister and fisheries officers Part 11—Miscellaneous 82B Death, bankruptcy etc of lessee or licensee 83 Annual reports 85 False or misleading information 86 Service of documents 87 Continuing offence 88 Liability of directors 89 General defence 89A Confidentiality 90 Evidentiary 91 Regulations Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Aquaculture Act 2001. 3—Interpretation In this Act— Adelaide Dolphin Sanctuary has the same meaning as in the Adelaide Dolphin Sanctuary Act 2005; aquaculture means farming of aquatic organisms for the purposes of trade or business or research, but does not include an activity declared by regulation not to be aquaculture; aquaculture equipment means— (a) a farming structure; or (b) equipment used to anchor or indicate the presence of farming structures; or (c) a barge used to feed aquatic organisms; or (d) equipment used to mark‑off or indicate the boundaries of a licence area; or (e) other equipment used for the purposes of aquaculture; aquaculture exclusion zone—see Part 4 Division 1; aquaculture lease or lease means an aquaculture lease under Part 6; aquaculture licence or licence means a corresponding licence under Part 6 or an aquaculture licence under Part 7; aquaculture policy means an aquaculture policy under Part 4; aquaculture zone—see Part 4 Division 1; aquatic organism means an aquatic organism of any species, and includes the reproductive products and body parts of an aquatic organism; ATAB means the Aquaculture Tenure Allocation Board established under Part 10 Division 3; authorised person, in relation to a marked-off area of an aquaculture lease, means— (a) a lessee under the lease or a person acting on the authority of a lessee under the lease; or (b) if a person who is not a lessee under the lease is a holder of a corresponding licence in respect of an area that comprises or includes the marked-off area—that person or a person acting on the authority of that person; condition includes a limitation and reservation; corresponding licence, in relation to an aquaculture lease or proposed aquaculture lease, means an aquaculture licence in respect of all or part of the area of the lease or proposed lease authorising the same class of aquaculture as that specified by the lease or proposed lease; council means a council within the meaning of the Local Government Act 1999; director of a corporation includes a person occupying or acting in the position of director of the corporation whether validly appointed to occupy or duly authorised to act in the position or not, and includes a person in accordance with whose directions or instructions the directors of the corporation are accustomed to act; ecologically sustainable—see section 4; emergency lease means an emergency lease under Part 6 Division 5; EPA means the Environment Protection Authority established under the Environment Protection Act 1993; farming of aquatic organisms means an organised rearing process involving propagation or regular stocking or feeding of the organisms or protection of the organisms from predators or other similar intervention in the organisms' natural life cycles; farming structures means structures used for the farming of aquatic organisms and includes sea cages and racks, longlines and submerged lines used for aquaculture, together with their associated baskets, barrels, lanterns and other culture units; fisheries officer means a fisheries officer within the meaning of the Fisheries Management Act 2007; mandatory provisions—see Part 4 Division 1; marine park has the same meaning as in the Marine Parks Act 2007; marked-off area of an aquaculture lease means an area of the lease with boundaries that are marked off or indicated in the manner required under the conditions of the lease or a corresponding licence; Minister's assessment guidelines means guidelines published by the Minister under section 60A; Murray-Darling Basin has the same meaning as in the Murray-Darling Basin Act 1993; pilot lease means a pilot lease under Part 6 Division 2; prescribed criteria—see Part 4 Division 1; production lease means a production lease under Part 6 Division 4; public authority includes a Minister, statutory authority or council; public call area—see section 11(2)(b); public register—see section 80; relevant Act means— (a) in relation to the Adelaide Dolphin Sanctuary—the Adelaide Dolphin Sanctuary Act 2005; or (b) in relation to a marine park—the Marine Parks Act 2007; or (c) in relation to a River Murray Protection Area or the Murray‑Darling Basin—the River Murray Act 2003; relevant Minister means— (a) in relation to the Adelaide Dolphin Sanctuary—the Minister to whom the administration of the Adelaide Dolphin Sanctuary Act 2005 is committed; or (b) in relation to a marine park—the Minister to whom the administration of the Marine Parks Act 2007 is committed; or (c) in relation to a River Murray Protection Area or the Murray‑Darling Basin—the Minister to whom the administration of the River Murray Act 2003 is committed; relevant statutory authorisation means an approval, consent, licence, permit or other authorisation or entitlement granted, arising or required under an Act or any other law of this State or another State or Territory of the Commonwealth relating to aquaculture, fishing or environment protection; research lease means a research lease under Part 6 Division 4A; River Murray Protection Area means a River Murray Protection Area under the River Murray Act 2003; specially protected area means— (a) the Adelaide Dolphin Sanctuary; or (b) a marine park; or (c) a River Murray Protection Area; standard conditions—see Part 4 Division 1; State waters means waters that are— (a) within the limits of the State and vested in the Crown; or (b) coastal waters of the State under the Coastal Waters (State Powers) Act 1980 of the Commonwealth (as amended from time to time or an Act enacted in substitution for that Act); suitable person—see section 4A; Tribunal means the South Australian Civil and Administrative Tribunal established under the South Australian Civil and Administrative Tribunal Act 2013; variation of licence conditions includes the revocation of licence conditions or the imposition of further licence conditions, but does not include a matter of a kind excluded from the ambit of this definition by the regulations; waters includes land underlying waters. 4—Ecologically sustainable development (1) Development is ecologically sustainable if it is managed to ensure that communities provide for their economic, social and physical well-being while— (a) natural and physical resources are maintained to meet the reasonably foreseeable needs of future generations; and (b) biological diversity and ecological processes and systems are protected; and (c) adverse effects on the environment are avoided, remedied or mitigated. (2) In making decisions as to whether development is ecologically sustainable or to ensure that development is ecologically sustainable— (a) long-term and short-term economic, environmental, social and equity considerations should be effectively integrated; and (b) if there are threats of serious or irreversible environmental harm, lack of full scientific certainty should not be taken to justify the postponement of decisions or measures to prevent the environmental harm. 4A—Suitable person to be granted licence In determining whether a person is a suitable person to be granted an aquaculture licence, the Minister may take into account— (a) any offence committed by the person, or, in the case of a corporation, by a director of the corporation, against this Act or any other law of this State or another State or a Territory of the Commonwealth relating to aquaculture, fishing or environment protection; and (b) whether the person, or, in the case of a corporation, a director of the corporation, has held a relevant statutory authorisation that has been cancelled or suspended or has been disqualified from obtaining such an authorisation; and (c) the financial and other capacity of the person to comply with obligations under this Act. 5—Crown bound (1) This Act binds the Crown not only in right of South Australia but also, so far as the legislative power of the Parliament permits, the Crown in all its other capacities. (2) Nothing in this Act renders the Crown in any of its capacities liable to be prosecuted for an offence. 6—Application of Act This Act applies within the State and State waters and to waters beyond and adjacent to State waters to the full extent of the extraterritorial power of the Parliament. 6A—Licence or other right is not personal property for the purposes of Commonwealth Act A right, entitlement or authority granted by or under this Act is not personal property for the purposes of the Personal Property Securities Act 2009 of the Commonwealth. 7—Interaction with other Acts (1) Subject to subsection (2), this Act is in addition to and does not limit or derogate from the provisions of any other Act. (2) The Planning, Development and Infrastructure Act 2016 does not apply to development within the area of an emergency lease for the purposes of carrying on the activities authorised by a corresponding licence. Part 2—Objects of Act 8—Objects of Act (1) The objects of this Act are— (a) to promote ecologically sustainable development of marine and inland aquaculture; and (b) to maximise benefits to the community from the State's aquaculture resources; and (c) otherwise to ensure the efficient and effective regulation of the aquaculture industry. (2) The Minister must, in the administration of this Act, have regard to, and seek to further, the objects. Part 3—Efficient administrative practices 9—Efficient administrative practices (1) The Minister and other relevant Ministers are to endeavour to ensure that practices are established to integrate and expedite administrative processes under this Act and other Acts so far as is practicable for the efficient and effective regulation of the aquaculture industry. (2) Directions may be given by a relevant Minister for the purposes of subsection (1) that will be binding (according to their terms) on a body or persons engaged in the administration of an Act for which the relevant Minister has responsibility. (3) However, this section is not to be taken to authorise a direction that would be inconsistent with a provision of this or another Act or that would govern the nature of a decision that may be made under an Act (as distinct from the processes leading up to the making of a decision). (4) In this section— relevant Minister means a Minister responsible for the administration of an Act that has application in relation to aquaculture. Part 4—Aquaculture policies Division 1—General 10—Interpretation In this Division— (a) a reference to a draft aquaculture policy includes a reference to a draft amendment or revocation of an aquaculture policy; and (b) a reference to an aquaculture policy includes a reference to an amendment or revocation of an aquaculture policy. 11—Nature and content of policies (1) The Minister may make aquaculture policies for any purpose directed towards securing the objects of this Act. (2) An aquaculture policy may do one or more of the following according to the terms of the policy: (a) identify a zone within State waters (an aquaculture zone) in which aquaculture or specified classes of aquaculture will be permitted (subject to this Act and other applicable Acts); (b) designate an aquaculture zone or part of an aquaculture zone as an area in which applications for leases may only be made in accordance with a public call for applications (a public call area); (c) identify a zone within State waters (an aquaculture exclusion zone) in which no aquaculture will be permitted; (e) prescribe matters to be taken into account in the determination of applications for licences or in the making of other decisions under this Act (prescribed criteria); (f) prescribe provisions that will be conditions of licences or leases (standard conditions); (g) prescribe provisions that will constitute offences under Division 2 (mandatory provisions); (h) make any other provision contemplated by this Act or necessary or expedient for the purpose of securing the objects of this Act. (3) The provisions of aquaculture policies may vary in their operation according to the zones or other areas, or the classes of aquaculture, or other circumstances, to which they are expressed to apply. (3a) Insofar as an aquaculture policy applies within a specially protected area or the Murray‑Darling Basin, the policy must seek to further the objects and objectives of the relevant Act and of any relevant policy or plan prepared under the relevant Act, and in particular, should contain prescribed criteria to this effect. (3b) If an aquaculture policy prescribes standard conditions, those conditions will, subject to the terms of the policy, apply to an aquaculture lease or aquaculture licence whether granted before or after the making of the policy and prevail over other conditions of such a lease or licence to the extent of any inconsistency. (4) An aquaculture policy may— (a) operate by making reference to a standard or other document published by a specified body, with or without specified modifications, and as in force at a specified time or from time to time; and (b) provide for a matter to be determined according to the discretion of the Minister. 12—Procedures for making policies (1) The Minister may prepare draft aquaculture policies. (3) The Minister must prepare a report in relation to a draft policy containing— (a) an explanation of the purpose and effect of the draft policy; and (b) a summary of any background and issues relevant to the draft policy and of the analysis and reasoning applied in formulating the policy; and (c) an assessment of the consistency of the draft policy with— (i) any relevant state planning policy or regional plan, and the Planning and Design Code, under the Planning, Development and Infrastructure Act 2016; and (ii) any relevant environment protection policy under the Environment Protection Act 1993; and (iii) any other instruments prescribed by regulation. (4) The Minister must, after preparation of the draft policy and related report, refer the policy and report— (a) to any body prescribed for the purposes of this section; and (b) to any public authority whose area of responsibility is, in the opinion of the Minister, likely to be affected by the policy. (5) The Minister must also, after preparation of the draft policy and related report, cause an advertisement to be published in accordance with subsection (5a)— (a) giving notice of places at which the draft policy and the report, or copies of the draft policy and the report, are to be available for inspection and, if copies are to be available for purchase, of places at which copies may be purchased; and (b) inviting interested persons to make written submissions in relation to the draft policy within a period specified in the advertisement (being not less than 2 months from the date of publication of the advertisement). (5a) The advertisement referred to in subsection (5) must be published— (a) in the Gazette; and (b) in 1 or both of the following forms (as the Minister considers appropriate in the circumstances): (i) in a newspaper circulating generally in the State; (ii) on a website determined by the Minister. (6) After considering all matters raised as a result of consultation under subsections (4) and (5), the Minister may— (a) by notice in the Gazette, approve the draft policy; or (b) alter the draft policy as the Minister thinks fit and, by notice in the Gazette, approve the draft policy as altered; or (c) decline to approve the draft policy. (7a) The Minister must not approve a draft policy that will apply within a specially protected area without the concurrence of the relevant Minister. (7b) If the Minister to whom this Act is committed and a relevant Minister cannot reach agreement in a case where subsection (7a) applies, the Ministers must take steps to refer the matter to the Governor and the Governor will determine the matter (and any decision taken by the Governor will be taken to be a decision of the Minister under this Act). (8) The Minister must, in a Gazette notice approving a draft policy, fix a day on which the policy will come into operation. 13—Parliamentary scrutiny (1) If the Minister approves an aquaculture policy under this Division, the Minister must, within 28 days, refer the policy to the Environment, Resources and Development Committee of the Parliament. (2) The Environment, Resources and Development Committee must, after receipt of an aquaculture policy under subsection (1)— (a) resolve that it does not object to the policy; or (b) resolve to suggest amendments to the policy; or (c) resolve to object to the policy. (3) If, at the expiration of 28 days from the day on which the policy was referred to the Environment, Resources and Development Committee, the Committee has not made a resolution under subsection (2), it will be conclusively presumed that the Committee does not object to the policy and does not itself propose to suggest any amendments to the policy. (3a) If the expiration of the 28 days referred to in subsection (3) falls during a prescribed period, the prescribed period is to be disregarded for the purposes of that subsection. (4) If an amendment is suggested under subsection (2)(b)— (a) the Minister may, by notice in the Gazette, proceed to make such an amendment to the policy; or (b) the Minister may report back to the Committee that the Minister is unwilling to make the amendment suggested by the Committee (and, in such a case, the Committee may resolve that it does not object to the policy as originally made, or may resolve to object to the policy). (5) If the Environment, Resources and Development Committee resolves to object to a policy, copies of the policy must be laid before both Houses of Parliament. (6) If either House of Parliament passes a resolution disallowing a policy laid before it under subsection (5), the policy ceases to have effect. (7) A resolution is not effective for the purposes of subsection (6) unless passed in pursuance of a notice of motion given within 14 sitting days (which need not fall within the same session of Parliament) after the day on which the policy was laid before the House. (8) If a resolution is passed under subsection (6), notice of the resolution must forthwith be published in the Gazette. (9) In this section— prescribed period means— (a) 15 December to the following 15 January (inclusive); or (b) the period commencing on the day on which the House of Assembly is dissolved for the purposes of a general election and ending on the day on which the Environment, Resources and Development Committee is reconstituted at the beginning of the first session of the new Parliament after that election. 14—Certain amendments may be made by Gazette notice only (1) The Minister may, by notice in the Gazette, amend an aquaculture policy— (a) in order to correct an error in the policy; or (b) in order to make a change of form (not involving a change of substance) in the policy; or (ba) in order to designate, or revoke the designation of, an aquaculture zone or part of an aquaculture zone as a public call area; or (bb) if the Minister considers it necessary to amend the policy in consequence of an amendment to the Act or the making, variation or revocation of the regulations or the making, amendment or revocation of another aquaculture policy; or (c) if the policy itself or the regulations provide that a change of a specified kind may be made to the policy by amendment under this section—in order to make a change of that kind. (2) An amendment under this section comes into operation on the day fixed in the notice of the amendment. 15—Availability and evidence of policies (1) Copies of each aquaculture policy and of each standard or other document referred to in an aquaculture policy must be kept available for inspection and purchase by the public during ordinary office hours at an office determined by the Minister. (2) In any legal proceedings, evidence of the contents of an aquaculture policy or of a standard or other document referred to in an aquaculture policy may be given by production of a document certified by the Minister as a true copy of the policy, standard or other document. (3) An apparently genuine document purporting to be a certificate of the Minister will be accepted as such a certificate in the absence of proof to the contrary. Division 2—Contravention of mandatory provisions 16—Offence to contravene mandatory provisions of policy A person who contravenes a mandatory provision of an aquaculture policy is guilty of an offence. Maximum penalty: $10 000. Expiation fee: $1 000. Part 5—Requirement for licence 17—Requirement for licence A person must not carry on aquaculture unless authorised to do so by an aquaculture licence. Maximum penalty: $35 000. Part 6—Leases Division 1—General 18—Application of Part This Part applies to an area comprised of— (a) State waters; or (b) State waters and adjacent land within the meaning of the Harbors and Navigation Act 1993. 19—Requirement for lease (1) An aquaculture licence may not be granted so as to authorise the carrying on of aquaculture in an area to which this Part applies unless the area is the subject of an aquaculture lease granted by the Minister. (2) However— (a) an aquaculture licence may be granted despite the area not being the subject of an aquaculture lease if the aquaculture is to be carried out on a navigable vessel as it operates within the area; and (b) an aquaculture licence may be granted subject to conditions regulating the towing of farming structures containing stock by means of navigable vessel to or from the area of the lease and the feeding of the stock or the taking of other action in relation to the stock during the movement of the stock. 20—Concurrence under Harbors and Navigation Act (1) The power of the Minister to grant an aquaculture lease in respect of an area to which this Part applies is subject to the requirement under section 15 of the Harbors and Navigation Act 1993 for the concurrence of the Minister responsible for the administration of that Act. (2) However, the concurrence of the Minister is not required— (a) for the substitution of an aquaculture lease following the division of lease areas into separate lease areas, or the amalgamation of lease areas, in accordance with the regulations; or (b) for the grant of an emergency lease over an area that is not within a port or harbor within the meaning of the Harbors and Navigation Act 1993. 21—Leases not permitted in respect of aquaculture exclusion zones An aquaculture lease may not be granted in respect of an area within an aquaculture exclusion zone. 22—General process for grant and renewal of leases and corresponding licences (1) Subject to section 40 (under which an emergency lease may be granted on the initiative of the Minister), an aquaculture lease may only be granted or renewed on application under this Part. (2) An application for the grant or renewal of an aquaculture lease— (a) must be made to the Minister in the manner and form required by the Minister; and (b) must be accompanied by a fee of the amount determined by the Minister. (2a) An application for the grant of an aquaculture lease must be accompanied by an application for a corresponding licence. (2b) The term of a corresponding licence is co‑extensive with the term of the lease, and the licence is renewed for a further term on each renewal of the lease (without any requirement for an application). (2c) Subsection (2b) has effect subject to the power of the Minister to suspend or cancel an aquaculture licence. (2d) An application for a corresponding licence— (a) must be made to the Minister in the manner and form required by the Minister; and (b) must be accompanied by an application fee for the licence of the amount prescribed by regulation. (3) An applicant for an aquaculture lease or corresponding licence must provide the Minister with any information required by the Minister in connection with the determination of the application, verified, if the Minister so requires, by statutory declaration. (4) The grant of an aquaculture lease must be notified in the Gazette. (5) If the Minister decides not to grant or renew an application for an aquaculture lease, the Minister must, at the request of the applicant, give the applicant a written statement of the Minister's reasons for the decision. 25—Lease conditions The conditions of an aquaculture lease may— (a) fix the term of the lease (subject to this Act); and (b) fix amounts payable, whether as rent or otherwise, for or under the lease; and (c) specify performance criteria to be met in relation to the lease; and (d) provide for cancellation of the lease by the Minister and the grounds for cancellation; and (e) provide for variation of the lease or its conditions by the Minister and the grounds for variation; and (f) provide for renewal of the lease; and (g) prevent or regulate the grant of subleases; and (h) make any other provision the Minister considers appropriate. 25A—Variation of lease or lease conditions by or with consent of lessee (1) Subject to this section, an aquaculture lease or its conditions may be varied by the Minister by written notice to the lessee on application by or with the consent of the lessee. (2) The variation must not increase the size of the area leased. (3) If the variation consists of or involves the substitution of the area leased, the following provisions apply: (a) the variation may not be made if the lease is registered under the Real Property Act 1886; (b) if the original area leased was within an aquaculture zone, the new area leased must not be within a different aquaculture zone; (c) if the new area leased is in a different location outside an aquaculture zone, the variation is subject to the requirement under section 15 of the Harbors and Navigation Act 1993 for the concurrence of the Minister responsible for the administration of that Act as if the variation involved the grant of a lease; (d) the variation may not be made unless the holder of each corresponding licence has requested or consented to a variation of the conditions of the licence by substitution of the licence area and, in the case of a matter that is required to be referred to the EPA under section 59, the matter has been so referred and the EPA has approved the variation (to take effect on the variation of the lease). (4) If the public register includes a notation that a specified person has an interest in an aquaculture lease, the lease may not be varied unless the specified person consents to the variation. (5) An application for the variation of an aquaculture lease or its conditions— (a) must be made to the Minister in the manner and form required by the Minister; and (b) if the public register includes a notation that a specified person has an interest in the lease—must be accompanied by evidence that the person consents to the variation; and (c) must be accompanied by a fee of the amount prescribed by regulation. (6) This section does not derogate from the Minister's power to vary the lease or its conditions on grounds specified in the conditions of the lease. 25B—Cancellation of lease (1) The Minister may cancel an aquaculture lease on the grounds that— (a) aquaculture has not commenced or has ceased to be carried on in the area leased; or (b) performance criteria specified in the regulations or the lease have not been met; or (c) an amount has not been paid for or under the lease in accordance with its conditions. (2) Before the Minister cancels an aquaculture lease under this section, the Minister must— (a) give the lessee written notice— (i) specifying the matters alleged to constitute proper cause for cancellation of the lease; and (ii) stating that the Minister proposes to cancel the lease; and (iii) allowing the lessee a reasonable opportunity to show cause why the lease should not be cancelled; and (b) if the public register includes a notation that a specified person has an interest in the lease—provide the specified person with a copy of the notice given to the lessee under paragraph (a). (3) This section does not derogate from the Minister's power to cancel a lease on grounds specified in the conditions of the lease. 25C—Surrender of lease (1) An aquaculture lease may be surrendered with the consent of the Minister. (2) If the public register includes a notation that a specified person has an interest in an aquaculture lease, the lease may not be surrendered unless the specified person consents to the surrender. (3) An application for the consent of the Minister to the surrender of an aquaculture lease— (a) must be made to the Minister in the manner and form required by the Minister; and (b) if the public register includes a notation that a specified person has an interest in the lease—must be accompanied by evidence that the person consents to the surrender; and (c) must be accompanied by a fee of the amount prescribed by regulation. 25D—Corresponding licences terminated on termination of lease If an aquaculture lease is cancelled or otherwise terminated, each corresponding licence is terminated. 26—Classes of leases Aquaculture leases are divided into the following classes: (a) pilot leases; (c) production leases; (ca) research leases; (d) emergency leases. Division 2—Pilot leases 27—Pilot leases outside aquaculture zones A pilot lease may only be granted in respect of an area comprising or including State waters outside of an aquaculture zone. 28—Granting of corresponding licence for pilot lease (1) The Minister may grant a corresponding licence for a pilot lease containing specified conditions if— (a) the Minister is satisfied that— (i) the grant of the licence would be consistent with the objects of this Act and any prescribed criteria or other relevant provisions of an applicable aquaculture policy; and (ii) the applicant is a suitable person to be granted the licence; and (b) the Minister— (i) has caused public notice of the application to be published on a website determined by the Minister or in a newspaper circulating generally in the State and invited interested persons to make written submissions on the application within the period allowed in the notice; and (ii) has taken any such submissions into account; and (c) the matter has been referred to the EPA under Part 8 and the EPA has approved the granting of the licence. (2) The Minister must, at the request of a person who has made a written submission to the Minister under subsection (1), give the person a written statement of the Minister's reasons for the decision made by the Minister in relation to the matter on which submissions were invited. 29—Term and renewal of pilot leases (1) The term of a pilot lease is 12 months or a lesser period specified in the lease. (2) A pilot lease is renewable for successive terms but not so the aggregate of the terms exceeds 5 years. (3) This section has effect subject to provisions of this Act or a pilot lease for the renewal or cancellation of the lease. 30—Pilot leases not transferable A pilot lease is not transferable. 31—Licences may only be held by lessees Only the lessee under a pilot lease may hold the corresponding licence. Division 4—Production leases 34—Granting of production leases limited to aquaculture zones A production lease may only be granted in respect of an area comprising or including State waters within an aquaculture zone. 35—Granting of production leases and corresponding licences in public call areas (1) An application for a production lease in respect of an area within an aquaculture zone or part of an aquaculture zone designated as a public call area may only be made following a public call for such applications in accordance with this section. (2) In making a public call for applications, the Minister may— (a) determine the particular area, or a maximum area, to be made available for lease; and (b) establish criteria that must be met by applications, or determine weightings to be applied to applications, based on 1 or more of the following factors: (i) the species of aquatic organism to be farmed; (ii) the farming system; (iii) the feeding system; (iv) the purpose of the aquaculture; (v) the size of the lease area; (vi) the location of the lease area; (vii) any other factor considered appropriate by the Minister; and (c) determine that the call is to be in the form of a competitive tender with monetary bids. (3) A public call for applications must be made by notice published on a website determined by the Minister or in a newspaper circulating generally in the State and may be advertised in any other manner that the Minister thinks fit. (4) The following information must be readily available to potential respondents to the public call for applications: (a) the aquaculture zone or the part of the zone to which the public call relates; (b) the area or the maximum area available for lease; (c) any applicable criteria and weightings; (d) information about the required manner and form of the applications; (e) the period within which applications must be made. (5) ATAB must assess each of the applications received in accordance with a public call for applications taking into account— (a) the objects of this Act; and (b) any prescribed criteria or other relevant provisions of the applicable aquaculture policy; and (c) any applicable criteria and weightings. (6) The assessment must be carried out in accordance with the Minister's assessment guidelines. (7) On completion of the assessment, ATAB must make recommendations to the Minister (disregarding any limit on the area available for lease) as to— (a) any applications that should not be granted; and (b) the order of merit of the other applications (and, to the extent that applications would otherwise be of the same order of merit, the order is to be determined by the drawing of lots and the Minister is to be informed of that fact). (8) Following receipt of ATAB's recommendations, the Minister is to determine the preferred applications and may negotiate with the applicants adjustments to the size and location of the areas sought to be leased so as to maximise the total area leased and resolve any conflict between the applications in relation to the area sought to be leased (to the extent that it is possible to do so without affecting the basis on which the applications were assessed in a material respect). (9) The Minister may grant a corresponding licence containing specified conditions on a preferred application if— (a) the Minister is satisfied that— (i) the grant of the licence would be consistent with the objects of this Act and any prescribed criteria or other relevant provisions of an applicable aquaculture policy; and (ii) the applicant is a suitable person to be granted the licence; and (b) the Minister— (i) has caused public notice of the application to be published in accordance with subsection (3) and invited interested persons to make written submissions on the application within the period allowed in the notice; and (ii) has taken any such submissions into account; and (c) the matter has been referred to the EPA under Part 8 and the EPA has approved the granting of the licence. (10) An aquaculture policy identifying an aquaculture zone may exclude the application of subsection (9)(b) in relation to an application for a lease within the zone in circumstances specified in the policy. (11) The Minister must, at the request of a person who has made a written submission to the Minister under subsection (9), give the person a written statement of the Minister's reasons for the decision made by the Minister in relation to the matter on which submissions were invited. (12) If a preferred application is withdrawn or a decision is made not to grant the lease or licence on the application, any application that would have been a preferred application if the application that is withdrawn or not granted had not been made may become a preferred application in relation to the public call and be dealt with accordingly. 36—Granting of production leases and corresponding licences if public call not required (1) If an application is made for a production lease in respect of an area within an aquaculture zone or part of an aquaculture zone that is not designated as a public call area, ATAB must assess the application and the accompanying application for a corresponding licence, taking into account the objects of this Act and any prescribed criteria or other relevant provisions of an applicable aquaculture policy and make a recommendation to the Minister as to whether or not the lease and corresponding licence should be granted. (2) The assessment must be carried out in accordance with the Minister's assessment guidelines. (3) The Minister may grant a corresponding licence containing specified conditions on the application if— (a) the Minister is satisfied that— (i) the grant of the licence would be consistent with the objects of this Act and any prescribed criteria or other relevant provisions of an applicable aquaculture policy; and (ii) the applicant is a suitable person to be granted the licence; and (b) the Minister— (i) has caused public notice of the application to be published on a website determined by the Minister or in a newspaper circulating generally in the State and invited interested persons to make written submissions on the application within the period allowed in the notice; and (ii) has taken any such submissions into account; and (c) the matter has been referred to the EPA under Part 8 and the EPA has approved the granting of the licence. (4) An aquaculture policy identifying an aquaculture zone may exclude the application of subsection (3)(b) in relation to an application for a lease within the zone in circumstances specified in the policy. (5) The Minister must, at the request of a person who has made a written submission to the Minister under subsection (3), give the person a written statement of the Minister's reasons for the decision made by the Minister in relation to the matter on which submissions were invited. 37—Conversion of pilot leases to production leases (1) The holder of a pilot lease may apply to the Minister for conversion of the lease to a production lease. (2) The Minister may convert a pilot lease on an application made under this section not more than 60 days and not less than 30 days before the end of a term of the pilot lease if— (a) the State waters comprising or included in the pilot lease are within an aquaculture zone; and (b) the Minister is satisfied that aquaculture has been carried on in the area of the pilot lease during each term of the pilot lease that meets performance criteria specified by the conditions of the pilot lease. (3) The Minister may convert a pilot lease on an application made not more than 90 days and not less than 60 days before the end of a term of the pilot lease if— (aa) the aggregate of the terms of the pilot lease exceed 3 years; and (a) the Minister is satisfied that— (i) conversion of the pilot lease to a production lease would be consistent with the objects of this Act and any prescribed criteria or other relevant provisions of an applicable aquaculture policy; and (ii) aquaculture has been carried on in the area of the pilot lease during each term of the pilot lease that meets performance criteria specified by the conditions of the pilot lease; and (b) the matter has been referred to the EPA under Part 8 and the EPA has approved the conversion of the lease. (4) An application for conversion of a pilot lease under this section— (a) must be made to the Minister in the manner and form required by the Minister; and (b) must be accompanied by a fee of an amount determined by the Minister. (4a) Despite subsections (2) and (3), the Minister may, at his or her discretion and on payment of the fee fixed by regulation, accept a late application for conversion of a pilot lease made before the end of the term of the lease. (5) An applicant for conversion of a pilot lease must provide the Minister with any information required by the Minister for the purposes of determining the application, verified, if the Minister so requires, by statutory declaration. (5a) If an application for conversion of a pilot lease has not been determined before the end of the term of the pilot lease, the term of the pilot lease is extended until such time as the application is determined (even if the aggregate of the terms of the lease will then exceed 5 years). (6) Conversion of a pilot lease to a production lease under this section will have effect from the end of the term of the pilot lease during which the application for conversion was made. (7) On the conversion of a pilot lease under this section, the term of the corresponding licence is extended so that it is co-extensive with the term of the lease as converted. (8) Conversion of a lease by the Minister under this section is not to be taken to constitute the granting of a lease for the purposes of this Act. 38—Term and renewal of production leases (1) The term of a production lease is such period (not exceeding 30 years) as is specified in the lease. (1a) The Minister may, on application by the holder of a production lease that— (a) has a term of 20 years or less; and (b) was in force immediately before the commencement of this subsection, extend the term of the lease by such period as the Minister thinks fit (but such an extension cannot prolong the term of the lease beyond the thirtieth anniversary of the day on which the lease was granted or renewed). (1b) The term of a production lease cannot be extended under subsection (1a) more than once. (2) A production lease is renewable for successive terms. (3) This section has effect subject to provisions of this Act or a production lease for the renewal or cancellation of the lease. 39—Transfer of production leases (1) A production lease may be transferred by the lessee if— (a) the Minister consents to the transfer; and (b) in a case where the public register includes a notation that a specified person has an interest in the lease—the specified person consents to the transfer. (2) An application for the consent of the Minister to the transfer of a production lease— (a) must be made to the Minister in the manner and form required by the Minister; and (b) if the public register includes a notation that a specified person has an interest in the lease—must be accompanied by evidence that the person consents to the transfer; and (c) must be accompanied by a fee of the amount prescribed by regulation. Division 4A—Research leases 39A—Granting of research leases and corresponding licences (1) A research lease may be granted in respect of an area comprising or including State waters within or outside of an aquaculture zone. (2) An application for a research lease may be made at any time, even if the lease is in respect of an area within a public call area. (3) Subject to this Act, the Minister may grant a corresponding licence for a research lease containing specified conditions on an application if— (a) the Minister is satisfied that— (i) the grant of the licence would be consistent with the objects of this Act and any prescribed criteria or other relevant provisions of an applicable aquaculture policy; and (ii) the applicant is a suitable person to be granted the licence; and (b) the Minister— (i) has caused public notice of the application to be published on a website determined by the Minister or in a newspaper circulating generally in the State and invited interested persons to make written submissions on the application within the period allowed in the notice; and (ii) has taken any such submissions into account; and (c) the matter has been referred to the EPA under Part 8 and the EPA has approved the granting of the licence. (4) An aquaculture policy identifying an aquaculture zone may exclude the application of subsection (3)(b) in relation to an application for a lease within the zone in circumstances specified in the policy. (5) The Minister must, at the request of a person who has made a written submission to the Minister under subsection (3), give the person a written statement of the Minister's reasons for the decision made by the Minister in relation to the matter on which submissions were invited. 39B—Term and renewal of research leases (1) The term of a research lease is 5 years or a lesser period specified in the lease. (2) A research lease is renewable for successive terms but not, if the corresponding licence authorises the conduct of a particular research project, so as to extend the term beyond the duration of the research project. (3) This section has effect subject to provisions of this Act or a research lease for the renewal or cancellation of the lease. 39C—Research leases not transferable A research lease is not transferable. 39D—Licences may only be held by lessees Only the lessee under a research lease may hold the corresponding licence. Division 5—Emergency leases 40—Granting of leases and corresponding licences in circumstances of emergency (1) The Minister may grant an emergency lease in an area to which this Part applies, on his or her own initiative or on the application of the holder of a pilot lease, production lease or research lease, if the Minister is satisfied that circumstances of emergency exist such that the granting of the lease is warranted for the protection of the environment or the preservation of endangered aquaculture stock. (2) An emergency lease may be granted in respect of an area within or outside an aquaculture zone, but may not be granted in respect of an area within an aquaculture exclusion zone. (3) The Minister may grant a corresponding licence for an emergency lease containing specified conditions, on his or her own initiative or on application, without public notice of the application being published and without the matter being referred to the EPA. 43—Only holder of leases affected by emergency may hold emergency leases Only the holder of the lease affected by the emergency giving rise to the grant of an emergency lease may hold the emergency lease. 44—Term and renewal of emergency leases (1) The term of an emergency lease is 6 months or a lesser period specified in the lease. (2) An emergency lease is renewable for successive terms but not so the aggregate of the terms exceeds the period reasonably required for response or recovery following the emergency. (3) This section has effect subject to provisions of this Act or an emergency lease for the renewal or cancellation of the lease. 44A—EPA and Minister to be notified of emergency lease The Minister must ensure that the EPA and, in any case where concurrence of the Minister responsible for the administration of the Harbors and Navigation Act 1993 is not required (see section 20), that Minister are notified of a proposal to grant or renew an emergency lease. Division 6—Occupation of marked-off areas 45—Exclusive occupation of marked-off areas Subject to the provisions of the lease, the lessee under an aquaculture lease has a right of exclusive occupation of the marked-off area of the lease. 46—Control of marked-off areas (1) This section applies subject to any provisions of the aquaculture lease concerned, or a corresponding licence, that limit the powers of an authorised person in relation to a marked-off area. (2) A person who has entered a marked-off area of an aquaculture lease must not fail, without reasonable excuse, to leave the area immediately if asked to leave by an authorised person. Maximum penalty: $2 500 or imprisonment for 6 months. (3) A person who has been asked to leave a marked-off area of an aquaculture lease by an authorised person must not re-enter the area unless the person has the express permission of an authorised person or a reasonable excuse for doing so. Maximum penalty: $2 500 or imprisonment for 6 months. (4) A person who, while present in the marked-off area of an aquaculture lease contrary to subsection (3), uses offensive language or behaves in an offensive manner is guilty of an offence. Maximum penalty: $1 250. (5) A person who is present in the marked-off area of an aquaculture lease must, if asked to do so by an authorised person, give his or her name and address to the authorised person. Maximum penalty: $1 250. (6) An authorised person who has asked another person to leave a marked-off area or to give a name and address, must, if the other person so requests, inform the other person of— (a) the authorised person's name and address; and (b) the capacity in which the person is an authorised person. Maximum penalty: $750. (7) An authorised person must not address offensive language to, or behave offensively towards, a person in relation to whom the authorised person is exercising a power conferred by this section. Maximum penalty: $1 250. 47—Interference with stock or equipment within marked-off areas (1) A person must not, without lawful excuse— (a) take or interfere with aquaculture stock within a marked-off area of an aquaculture lease; or (b) interfere with equipment used to mark‑off or indicate the boundaries of the marked‑off area of an aquaculture lease; or (c) interfere with aquaculture equipment within a marked‑off area of an aquaculture lease. Maximum penalty: Imprisonment for 2 years. (2) A person must not enter a marked-off area of an aquaculture lease intending to commit an offence against subsection (1) in the area. Maximum penalty: Imprisonment for 1 year. (3) A court convicting a person of an offence against subsection (1) may, whether or not a penalty is imposed, order the person to pay to any person affected by the commission of the offence such compensation as the court considers proper for loss or damage suffered by that person as a result of the commission of the offence. 48—Offence to pretend to be authorised person A person must not falsely pretend, by words or conduct, to have the powers of an authorised person under this Division. Maximum penalty: $1 250. Division 7—Power to require or carry out work 48A—Power to require or carry out work (1) If— (a) a lessee fails to take an action required by a condition of the lessee's aquaculture lease; or (b) on cancellation or termination of an aquaculture lease, a former lessee fails to remove equipment used to mark‑off or indicate the boundaries of a marked‑off area of the lease, aquaculture equipment or stock from State waters, the Minister may, by written notice to the lessee or former lessee, direct the person to take the action, or to remove the equipment or stock. (2) A person to whom a direction is given under subsection (1) must comply with the direction within the time allowed in the notice. Maximum penalty: $35 000. (3) If a person fails to comply with a direction under subsection (1) within the time allowed in the notice, the Minister may cause the required action to be taken, and may recover the cost, as a debt, from the person. (4) Equipment or stock removed by action taken by the Minister under subsection (3) is forfeited to the Crown and may be sold or otherwise disposed of as the Minister thinks fit. Part 7—Licences 49—Applications for licences other than corresponding licences (2) An application for an aquaculture licence other than a corresponding licence— (a) must be made to the Minister in the manner and form required by the Minister; and (b) must be accompanied by a fee of the amount prescribed by regulation. (3) An applicant for an aquaculture licence other than a corresponding licence must provide the Minister with any information required by the Minister in connection with the determination of the application, verified, if the Minister so requires, by statutory declaration. 50—Grant of licences other than corresponding licences (3) Subject to this Act, the Minister may grant an aquaculture licence (other than a corresponding licence) containing specified conditions on an application made under this Part if— (a) the Minister is satisfied that— (i) the grant of the licence would be consistent with the objects of this Act and any prescribed criteria or other relevant provisions of an applicable aquaculture policy; and (ii) the applicant is a suitable person to be granted the licence; and (b) the Minister— (i) has caused public notice of the application to be published on a website determined by the Minister or in a newspaper circulating generally in the State and invited interested persons to make written submissions on the application within the period allowed in the notice; and (ii) has taken any such submissions into account; and (c) the matter has been referred to the EPA under Part 8 and the EPA has approved the granting of the licence. (5) The Minister must, at the request of a person who has made a written submission to the Minister under subsection (3), give the person a written statement of the Minister's reasons for the decision made by the Minister in relation to the matter on which submissions were invited. 50A—Term and renewal of licences other than corresponding licences (1) An aquaculture licence other than a corresponding licence is granted for a term of 10 years or a lesser period specified in the licence, and is renewable for successive terms on application under this section. (2) An application for renewal of an aquaculture licence— (a) must be made to the Minister in the manner and form determined by the Minister; and (b) must be accompanied by a fee of the amount prescribed by regulation. (3) An applicant for renewal of an aquaculture licence must provide the Minister with any information required by the Minister in connection with the determination of the application, verified, if the Minister so requires, by statutory declaration. (4) This section has effect subject to the power of the Minister to suspend or cancel an aquaculture licence. 51—Licences may be held jointly (1) An aquaculture licence may be held jointly by 2 or more persons. (2) If a licence is held jointly by 2 or more persons, those persons are jointly and severally liable to meet the requirements of this Act imposed on a licensee. 52—Licence conditions (1) On the grant of an aquaculture licence, the Minister may impose licence conditions as contemplated by this Act or as the Minister considers necessary or expedient for the purposes of this Act. (2) Without limiting subsection (1), the licence conditions may— (a) limit the activities authorised by the licence; and (b) prohibit or restrict the sale or supply of aquatic organisms farmed under the licence, for example, if the aquaculture is to be carried out for the purposes of research or a business involving tourism; and (c) regulate the storing, maintaining, repairing or cleaning of farming structures associated with the activity; and (d) in the case of a corresponding licence—regulate the towing of farming structures containing stock by means of navigable vessel to or from the area of the corresponding licence and the feeding of the stock or the taking of other action in relation to the stock during the movement of the stock. (3) The Minister may vary licence conditions by written notice to the licensee— (a) on the renewal of the licence; or (b) if the licence is a corresponding licence or is granted or renewed for a term exceeding 1 year—at any time during the period of 3 months following the anniversary of the date on which the licence was granted or renewed; or (c) at any time— (i) with the consent of the licensee; or (ii) if the Minister considers that it is necessary to vary the condition— (A) in order to correct an error or make a change of form (not involving a change of substance); or (B) in order to prevent or mitigate significant environmental harm or the risk of significant environmental harm; or (C) in consequence of contravention of this Act by the licensee; or (D) in consequence of an amendment of the Act or the making, amendment or revocation of regulations or an aquaculture policy; or (iii) as provided by a licence condition or the regulations. (4) However, the variation of a licence condition will not take effect unless, in the case of a matter that is required to be referred to the EPA under section 59, the matter has been so referred and the EPA has approved the variation of the condition. (5) If the public register includes a notation that a specified person has an interest in the licence, the licence may not be varied with the consent of the licensee unless the specified person consents to the variation. (6) An application for the variation of conditions of a licence— (a) must be made to the Minister in the manner and form required by the Minister; and (b) if the public register includes a notation that a specified person has an interest in the lease—must be accompanied by evidence that the person consents to the variation; and (c) must be accompanied by a fee of the amount prescribed by regulation. (7) A licensee must not contravene a condition of the licence. Maximum penalty: $10 000. Expiation fee: $1 000. 53—Annual fees (1) The holder of an aquaculture licence must, each financial year not later than the date specified by the Minister by written notice to the holder, pay to the Minister a fee of the amount prescribed by regulation. (2) If the holder of an aquaculture licence fails to pay a fee in accordance with this section, the Minister may, by written notice, require the holder to make good the default and, in addition, to pay to the Minister the amount prescribed by regulation as a penalty for default. (3) If the holder of the licence fails to comply with the notice within the period (of at least 14 days) specified in the notice, the licence is suspended until the notice is complied with. (4) If the holder of the licence fails to comply with the notice within 6 months after the giving of the notice, the licence is cancelled. (5) The Minister must cause written notice of the suspension or cancellation to be given to the holder of the licence. 55—Transfer of licences (1) An aquaculture licence may be transferred by the licensee with the consent of the Minister. (2) The holder of an aquaculture lease may exercise the right to transfer a corresponding licence (with the consent of the Minister) if the licensee is no longer entitled under the lease to occupy the licence area. (3) If the public register includes a notation that a specified person has an interest in the licence, the Minister may only consent to the transfer if the specified person consents to the transfer. (4) An application for the consent of the Minister to the transfer of an aquaculture licence— (a) must be made to the Minister in the manner and form required by the Minister; and (b) if the public register includes a notation that a specified person has an interest in the licence—must be accompanied by evidence that the person consents to the transfer; and (c) must be accompanied by a fee of the amount prescribed by regulation. 56—Surrender of licences (1) A licensee may, with the consent of the Minister, surrender the aquaculture licence to the Minister. (2) If the public register includes a notation that a specified person has an interest in the aquaculture licence, the Minister may only consent to the surrender if the specified person consents to the surrender. (3) An application for the consent of the Minister to the surrender of an aquaculture licence— (a) must be made to the Minister in the manner and form required by the Minister; and (b) if the public