South Australia: Fisheries Management Act 2007 (SA)

South Australia Fisheries Management Act 2007 An Act to provide for the conservation and management of the aquatic resources of the State, the management of fisheries and aquatic reserves, the regulation of fishing and the processing of aquatic resources, the protection of aquatic habitats, aquatic mammals and aquatic resources and the control of exotic aquatic organisms and disease in aquatic resources; and for other purposes. Contents Part 1—Preliminary 1 Short title 3 Interpretation 4 Declaration of aquatic reserves 5 Application of Act 5A Licence or other right is not personal property for the purposes of Commonwealth Act 6 Ownership of aquatic resources of State Part 2—Objects of Act 7 Objects of Act Part 3—Administration Division 1—Minister and Director 8 Minister 9 Director 10 Delegation Division 3—Advisory committees 20 Establishment of committees Division 4—Fisheries Research and Development Fund 21 Continuation of Fund 22 Accounts 23 Audit Part 4—Commonwealth-State arrangements Division 1—Commonwealth-State joint authorities 24 Powers and functions of Minister 25 Judicial notice 26 Functions of Joint Authority 27 Delegation 28 Procedure of Joint Authorities 29 Report of Joint Authority Division 2—Arrangements with Commonwealth with respect to management of particular fisheries 30 Arrangement for management of certain fisheries 31 Application of this Act to fisheries in accordance with arrangements 32 Application of Commonwealth law to limits of State in accordance with arrangements 33 Functions of Joint Authority 34 Joint Authority to exercise certain powers instead of Minister or Director 35 Application of certain provisions relating to offences 36 Presumption relating to certain statements 37 Regulations relating to Joint Authority fishery Division 3—Arrangements with other States 38 Arrangements with other States 39 Functions Part 5—Management plans for commercial fishing, recreational fishing and aquatic reserves 40 Interpretation 41 Application of Part 42 Preparation of management plans 43 General nature and content of management plans 44 Procedure for preparing management plans 45 Tabling of management plans 46 Procedure for making certain amendments to management plans 47 Duration of management plans 48 Availability and evidence of management plans 49 Review of management plans 50 Implementation of management plans Part 6—Regulation of fishing and processing Division 1—Commercial fishing 51 Interpretation 52 Obligation of commercial fishers to hold licence or permit 53 Obligation for boats and devices used in commercial fishing to be registered 54 Application for licence, permit or registration 55 Conditions of licence, permit or registration 56 Duration of authority and periodic fee and return etc 57 Transfer of licence or permit 58 Acquisition of licences etc by Minister 59 Obligation to carry authority and identification while engaging in fishing activities Division 2—Aboriginal traditional fishing 60 Management of aboriginal traditional fishing 61 Availability and evidence of aboriginal traditional fishing management plans Division 3—Processing 62 Obligation of fish processors to be registered 63 Classes of registration 64 Applications for registration 65 Conditions of registration 66 Duration of registration and periodic fee and return etc Division 4—Miscellaneous 67 Misuse of authorities 68 Issue of duplicate authority 69 Effect of suspension of authority Part 7—Offences Division 1—Offences relating to fishing activities 70 Prescribed fishing activities prohibited 71 Taking, injuring etc aquatic mammals and protected species prohibited 72 Sale, purchase or possession of aquatic resources without authority prohibited 73 Possession of prescribed quantity of aquatic resource in prescribed circumstances 74 Unauthorised trafficking in fish of priority species prohibited 75 Interference with lawful fishing activities prohibited Division 2—Miscellaneous offences 76 Entering etc aquatic reserve, or engaging in fishing activity in aquatic reserve, without authorisation prohibited 77 Disturbance of water beds, or removal or interference with animals or plants, in aquatic reserve without authorisation prohibited 78 Unauthorised activities relating to exotic organisms or noxious species prohibited Division 3—Temporary prohibition of certain fishing activities etc 79 Temporary prohibition of certain fishing activities etc Division 4—Miscellaneous 79A Permits Part 8—Enforcement Division 1—Authorised persons Subdivision 1—Appointment of authorised persons 80 Appointment of fisheries officers, scientific observers and sea rangers Subdivision 2—Fisheries officers 81 General powers of fisheries officers 82 Power of fisheries officer to search persons for evidence of certain offences 83 Powers of fisheries officers relating to exotic aquatic organisms and aquaculture fish 84 Power of fisheries officer to arrest persons without warrant 85 Corresponding laws may confer powers and functions 86 Fisheries officer may be assisted in exercise of powers etc Subdivision 3—Scientific observers 87 Functions of scientific observer 88 Placement of scientific observer on registered boat Subdivision 4—Sea rangers 89 Functions of sea ranger Subdivision 5—Miscellaneous 90 Provisions relating to things seized 91 Offence to hinder etc authorised persons Division 2—Orders made by Minister 92 Protection orders 93 Action on non-compliance with protection order 94 Reparation orders 95 Action on non-compliance with reparation order 96 Reparation authorisations 97 Related matters 98 Registration of orders or authorisations by Registrar-General 99 Effect of charge Division 3—Court orders 100 Additional orders court can make on conviction 101 Orders ERD Court may make on application by Minister 102 Provisions relating to orders under this Division Division 4—Demerit points scheme 103 Interpretation 104 Demerit points for certain offences 105 Consequences of certain number of demerit points being incurred by person or recorded against authority 106 Notices to be sent by Minister when certain number of demerit points are incurred or recorded 107 Notices to be sent by Minister when person becomes liable to disqualification or authority is to be cancelled 108 Disqualification etc and discounting of demerit points 109 Court not to take into account demerit points in determining penalty Division 5—Miscellaneous 110 Additional penalty based on value of aquatic resources Part 9—Review and appeals Division 1—Internal review 111 Review of certain decisions of Minister Division 2—External review 112 External review 113 Appeals to ERD Court against protection or reparation order 114 Constitution of ERD Court Part 10—Miscellaneous Division 1—General 115 Exemptions 116 Registers 117 Recovery of fees, levies and other amounts 118 Statutory declarations 119 False or misleading statement or information 120 Offences committed by bodies corporate or agents, or involving registered boats 121 Commencement of prosecutions 122 Self-incrimination 123 Rewards 124 Confidentiality 125 Service 126 Evidentiary provisions Division 2—Regulations 127 General 128 Regulations relating to conservation and management of aquatic resources, management of fisheries and aquatic reserves and regulation of fishing 129 Regulations relating to processing of aquatic resources 130 Regulations relating to control of exotic aquatic organisms and disease Division 3—Review of Act 131 Review of Act by Minister Schedule 1—Transitional provisions Part 2—Transitional provisions 2 Minister 3 Commonwealth-State arrangements 4 Fisheries officers 5 Fisheries and fishery licences 6 Fish processor registrations 7 Temporary prohibitions of fishing activities 8 Aquatic reserves and marine parks 9 Permits 10 Exemptions 11 Register of authorities Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Fisheries Management Act 2007. 3—Interpretation (1) In this Act, unless the contrary intention appears— Aboriginal person means a person of Aboriginal descent who is accepted as a member by a group in the community who claim Aboriginal descent; aboriginal traditional fishing means fishing engaged in by an Aboriginal person for the purposes of satisfying personal, domestic or non-commercial, communal needs, including ceremonial, spiritual and educational needs, and using fish and other natural marine and freshwater products according to relevant aboriginal custom; aboriginal traditional fishing management plan—see section 60; Adelaide Dolphin Sanctuary has the same meaning as in the Adelaide Dolphin Sanctuary Act 2005; advisory committee means an advisory committee established under section 20; aquaculture has the same meaning as in the Aquaculture Act 2001; aquaculture fish means fish farmed under an aquaculture licence; aquaculture licence has the same meaning as in the Aquaculture Act 2001; aquatic animal means an aquatic animal of any species, and includes the reproductive products and body parts of an aquatic animal; aquatic mammal means a seal or sea lion (order Pinnipedia) or a dolphin or whale (order Cetacea); aquatic plant means an aquatic plant of any species, and includes the reproductive products and parts of an aquatic plant; aquatic reserve means any waters, or land and waters, declared by proclamation to constitute an aquatic reserve; aquatic resource means fish or aquatic plants; aquatic resources of the State means aquatic resources of the waters to which this Act applies but does not include aquatic resources being farmed under an aquaculture licence; arrangement means— (a) an arrangement made by the State with the Commonwealth under Part 4 Division 1 (whether or not it is also made with another State or other States); or (b) an agreement made by the State with 1 or more other States under Part 4 Division 3; Australian fishing zone means the Australian fishing zone as defined in the Commonwealth Act; authorised person means a fisheries officer, scientific observer or sea ranger; authority means a licence, permit, registration, authorisation or other authority under this Act; boat means a vessel or craft that is used, or is capable of being used, as a means of transportation on water; coastal waters has the same meaning as in the Commonwealth Act; commercial fishing means fishing for a commercial purpose; commercial purpose means the purpose of trade or business; commercial quantity means a quantity declared by the regulations to be a commercial quantity for the purposes of this Act; Commonwealth Act means the Fisheries Management Act 1991 of the Commonwealth; Commonwealth Minister means the Minister for the time being administering the Commonwealth Act and any other Minister performing and exercising functions and powers under section 60 of the Commonwealth Act; condition includes a limitation; contravene includes not comply with; corresponding law means a law of the Commonwealth or another State or a Territory of the Commonwealth declared by the regulations to be a law corresponding to this Act; council has the same meaning as in the Local Government Act 1999; developmental fishery means a fishery declared by the regulations to be a developmental fishery for the purposes of this Act; device means an implement, apparatus, device or substance for taking or facilitating the taking of an aquatic resource; director of a body corporate includes a person occupying or acting in the position of a director or member of the governing body of the body corporate, by whatever name called and whether or not validly appointed to occupy or duly authorised to act in the position, and includes any person in accordance with whose directions or instructions the directors or members of the governing body are accustomed to act; Director of Fisheries or Director means the person for the time being holding or acting in the office of the Director of Fisheries under Part 3 Division 1; ecologically sustainable development—see section 7(5); entitlement under a fishery authority means— (a) a gear entitlement; or (b) a quota entitlement; or (c) an entitlement of a prescribed kind; ERD Court means the Environment, Resources and Development Court; exemption means an exemption granted under this Act; exotic aquatic organism means fish or an aquatic plant of a species that is not endemic to the waters to which this Act applies; and exotic fish and exotic aquatic plant have corresponding meanings; fish means an aquatic animal other than— (a) an aquatic bird, an aquatic mammal, a reptile or an amphibian; or (b) an aquatic animal of a kind declared by the regulations to be excluded from the ambit of this definition; fisheries officer means— (a) the Director; or (b) a police officer; or (c) a person appointed as a fisheries officer under section 80; fishery— (a) in Part 4—means a class of fishing activities identified in an arrangement under that Part as a fishery to which the arrangement applies; (b) in any other case—means a class of fishing activities declared by the regulations to constitute a fishery for the purposes of this Act (other than Part 4); fishery authority means a fishery licence or fishery permit; fishery licence means a licence in respect of a fishery under Part 6 Division 1; fishery permit means a permit in respect of a fishery under Part 6 Division 1; fishing activity or fishing means the act of taking an aquatic resource, or an act preparatory to, or involved in, the taking of an aquatic resource; fish of a priority species means— (a) abalone (Haliotis spp.) of all species; or (b) southern rock lobster (Jasus edwardsii); or (c) a species of fish declared by the regulations to be a priority species for the purposes of this Act; fish processor means a person who, for a commercial purpose, processes, stores, transports or deals with fish or other aquatic resources; foreign boat has the same meaning as in the Commonwealth Act; Fund means the Fisheries Research and Development Fund continued in existence under section 21; gear entitlement under a fishery authority means the maximum number of devices of a particular kind that the holder of the authority may lawfully use at any 1 time for the purpose of taking fish pursuant to the authority; indigenous land use agreement means an indigenous land use agreement registered under Part 2 Division 3 of the Native Title Act 1993 of the Commonwealth; Joint Authority means a Joint Authority established under section 61 of the Commonwealth Act of which the Minister is a member; Joint Authority Fishery means a fishery in respect of which there is in force an arrangement under Part 4 Division 2 under which the fishery is to be under the management of a Joint Authority; management plan means a management plan under Part 5; native title group means a native title group under section 24CD of the Native Title Act 1993 of the Commonwealth; noxious, in relation to an aquatic resource, means a species of aquatic resource declared by the Minister by notice in the Gazette to be a noxious species for the purposes of this Act; plant includes alga; prescribed apparatus means apparatus of a kind prescribed by the regulations for the purpose of counting, grading, weighing or sizing fish; prescribed procedure means a procedure prescribed by the regulations for determining the weight of a fish catch; processing— (a) in relation to fish—means scaling, gilling, gutting, filleting, freezing, chilling, packing or any other activity involved in preparing fish for sale; (b) in relation to any other aquatic resource—means any activity involved in preparing the resource for sale; protected species means a species of aquatic resource declared by the regulations to be a protected species for the purposes of this Act; public authority includes a Minister, statutory authority or council; purchase means— (a) purchase or take in exchange; or (b) agree or offer to purchase or take in exchange; or (c) receive, or accept or take delivery, under an agreement to purchase or take in exchange; or (d) cause, suffer or permit an act referred to in a preceding paragraph; quota entitlement under a fishery authority means the total quantity of aquatic resource of a particular class that may be taken under the authority during a quota period; quota period means the period during which a total allowable catch or total allowable commercial catch may be taken; recreational fishing means fishing other than commercial fishing or aboriginal traditional fishing; registered boat— (a) means a boat registered under Part 6 Division 1 for use under a fishery authority; and (b) includes a boat used in the place of a boat referred to in paragraph (a) with the consent of the Minister and in accordance with the conditions (if any) of that consent; registered fish processor means a person who is registered as a fish processor under Part 6 Division 3; registered master— (a) means a person registered under Part 6 Division 1 as master of a boat that may be used under a fishery authority; and (b) includes a person acting in the place of a person referred to in paragraph (a) with the consent of the Minister and in accordance with the conditions (if any) of that consent; registered owner— (a) in relation to a registered boat—means, subject to paragraph (b), the holder of the fishery authority under which the registered boat may be used; or (b) in relation to a boat being used by the holder of a fishery authority under this Act in place of a boat registered under Part 6 Division 1—means the holder of that authority; register of authorities—see section 116(1)(a); register of exemptions—see section 116(1)(b); 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 the River Murray—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 the River Murray—the Minister to whom the administration of the River Murray Act 2003 is committed; repealed Act means the Fisheries Act 1982; River Murray has the same meaning as in the River Murray Act 2003; scientific observer means a person appointed as a scientific observer under section 80; sea ranger means a person appointed as a sea ranger under section 80; sell means— (a) sell or give in exchange; or (b) agree or offer to sell or give in exchange; or (c) have in possession or control, expose, store, consign or deliver for sale or exchange; or (d) cause, suffer or permit an act referred to in a preceding paragraph; specially protected area means— (a) the Adelaide Dolphin Sanctuary; or (b) a marine park; or (c) the River Murray; species includes a subspecies or variety; State includes a Territory; take, in relation to an aquatic resource, means catch, take or obtain the resource (whether dead or alive) from any waters or kill or destroy the resource in any waters; total allowable catch, in relation to a fishery, means the total quantity of aquatic resources of a particular class that may be taken from the waters of the fishery during a particular period; total allowable commercial catch, in relation to a fishery, means the total quantity of aquatic resources of a particular class that may be taken from the waters of the fishery during a particular period for a commercial purpose; Tribunal means the South Australian Civil and Administrative Tribunal established under the South Australian Civil and Administrative Tribunal Act 2013; waters means— (a) any sea or inland waters (including any body of water or watercourse of any kind whether occurring naturally or artificially created); and (b) the bed of such waters. (2) A class of fishing activities may be defined in an instrument under this Act by reference to all or any of the following factors: (a) a species of aquatic resource; (b) a description of aquatic resource by reference to sex, size, weight or any other characteristic; (c) a number or quantity of aquatic resource; (d) a period of time; (e) an area of waters or a place; (f) a method of fishing; (g) a class or number of boats; (h) a class of persons; (i) a purpose of activities; (j) any other factor. (3) In this Act— (a) a reference to engaging in a fishing activity of a class is to be construed as a reference to doing an act that falls within the defined class and as including a reference to— (i) using a device for the purpose of the activity; or (ii) using a boat for the purpose of the activity; or (iii) being in charge of, or acting as a member of the crew of, a boat that is being used for the purpose of the activity; or (iv) diving in waters for the purpose of the activity; or (v) causing, assisting, suffering or permitting a person to do an act referred to in this section; (b) a reference to waters includes a reference to the intertidal and supra tidal zones of waters; (c) a reference to the waters of a fishery is a reference to the waters in relation to which the fishery is constituted. (4) For the purposes of this Act, an aquatic resource will not be regarded as having been taken if it is taken but immediately returned to the water unencumbered in any way and with as little injury or damage as possible. 4—Declaration of aquatic reserves (1) The Governor may, by proclamation— (a) declare that waters, or land and waters, specified in the proclamation, constitute an aquatic reserve; and (b) assign a name to the aquatic reserve so constituted. (2) Land cannot form part of an aquatic reserve unless the land has been placed under the care, control and management of the Minister. (3) The Governor may, by subsequent proclamation— (a) abolish an aquatic reserve; or (b) alter the boundaries of an aquatic reserve; or (c) alter the name of an aquatic reserve. 5—Application of Act (1) Subject to any limitations expressly prescribed in this Act, 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 that is to be managed in accordance with the law of the Commonwealth under an arrangement under Part 4 Division 2 or 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 that is to be managed in accordance with the law of the State under an arrangement under Part 4 Division 2—in relation to any waters to which the legislative powers of the State extend, with respect to that fishery, whether under 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 fishing 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. (2) This Act does not apply in relation to an activity (other than the taking of aquatic resources for a commercial purpose or the introduction of exotic aquatic organisms or disease in aquatic resources) engaged in relation to inland waters if those waters are surrounded by land that is in the ownership, possession or control of the same person (being a person other than the Crown or an instrumentality of the Crown). (3) Native title and native title rights and interests are not affected by the operation of this Act except to the extent authorised under the Native Title Act 1993 of the Commonwealth. 5A—Licence or other right is not personal property for the purposes of Commonwealth Act An authority granted by or under this Act is not personal property for the purposes of the Personal Property Securities Act 2009 of the Commonwealth. 6—Ownership of aquatic resources of State (1) The Crown in right of the State owns all aquatic resources (whether living or dead) of the State. (2) Property in aquatic resources of the State passes— (a) to the holder of a licence, permit or other authority granted under this Act when taken in accordance with that licence, permit or other authority; or (b) to any other person when taken lawfully in circumstances in which no licence, permit or other authority is required under this Act for the taking. Part 2—Objects of Act 7—Objects of Act (1) An object of this Act is to protect, manage, use and develop the aquatic resources of the State in a manner that is consistent with ecologically sustainable development and, to that end, the following principles apply: (a) proper conservation and management measures are to be implemented to protect the aquatic resources of the State from over-exploitation and ensure that those resources are not endangered; (b) access to the aquatic resources of the State is to be allocated between users of the resources in a manner that achieves optimum utilisation and equitable distribution of those resources to the benefit of the community; (c) aquatic habitats are to be protected and conserved, and aquatic ecosystems and genetic diversity are to be maintained and enhanced; (d) recreational fishing and commercial fishing activities are to be fostered for the benefit of the whole community; (e) the participation of users of the aquatic resources of the State, and of the community more generally, in the management of fisheries is to be encouraged. (2) The principle set out in subsection (1)(a) has priority over the other principles. (3) A further object of this Act is that the aquatic resources of the State are to be managed in an efficient and cost effective manner and targets set for the recovery of management costs. (4) The Minister, the Director, the ERD Court and other persons or bodies involved in the administration of this Act, and any other person or body required to consider the operation or application of this Act (whether acting under this Act or another Act), must— (a) act consistently with, and seek to further the objects of, this Act; and (b) insofar as this Act applies to the Adelaide Dolphin Sanctuary, seek to further the objects and objectives of the Adelaide Dolphin Sanctuary Act 2005; and (c) insofar as this Act applies to the River Murray, seek to further the objects of the River Murray Act 2003 and the Objectives for a Healthy River Murray under that Act; and (d) insofar as this Act applies to areas within a marine park, seek to further the objects of the Marine Parks Act 2007. (5) For the purposes of subsection (1), ecologically sustainable development comprises the use, conservation, development and enhancement of the aquatic resources of the State in a way, and at a rate, that will enable people and communities to provide for their economic, social and physical well-being while— (a) sustaining the potential of aquatic resources of the State to meet the reasonably foreseeable needs of future generations; and (b) safeguarding the life-supporting capacity of the aquatic resources of the State; and (c) avoiding, remedying or mitigating adverse effects of activities on the aquatic resources of the State, (taking into account the principle that if there are threats of serious or irreversible damage to the aquatic resources of the State, lack of full scientific certainty should not be used as a reason for postponing measures to prevent such damage). Part 3—Administration Division 1—Minister and Director 8—Minister (1) The Minister has the functions and powers assigned or conferred by or under this Act. (2) If a document appears to bear the common seal of the Minister, it will be presumed, in the absence of proof to the contrary, that the common seal of the Minister was duly affixed to the document. 9—Director (1) The office of the Director of Fisheries continues in existence. (2) The Director is a Public Service employee. 10—Delegation (1) The Minister may delegate a function or power of the Minister under this Act (other than this power of delegation) to the Director or any other person or body (including a person for the time being holding or acting in a specified office or position). (2) The Director may delegate a function or power of the Director under this Act (other than this power of delegation) to a Public Service employee (including a person for the time being holding or acting in a specified office or position). (3) A delegation under this section— (a) must be by instrument in writing; and (b) may be absolute or conditional; and (c) does not derogate from the power of the delegator to act in a matter; and (d) is revocable at will. (4) A function or power delegated under this section may, if the instrument of delegation so provides, be further delegated. (5) In legal proceedings, an apparently genuine certificate, purportedly signed by the Minister or the Director containing particulars of a delegation under this section, will, in the absence of proof to the contrary, be accepted as proof that the delegation was made in accordance with the particulars. Division 3—Advisory committees 20—Establishment of committees (1) The Minister may establish committees to provide advice to the Minister on any matter related to the administration of this Act. (2) The members of a committee established under this section will be appointed by the Minister and hold office for a term and on conditions determined by the Minister. (4) The membership of a committee must include persons who, in the opinion of the Minister, have expertise in fields relevant to those matters on which the committee is established to provide advice about and, in particular— (a) a committee established to provide advice on the management of a fishery must include at least 1 person with expertise in fisheries management and at least 1 person with expertise in fisheries research; (b) a committee established to provide advice on the allocation of the aquatic resources of a fishery must include persons who have expertise in issues related to that matter and who are cognisant of the interests of the various stakeholders in the fishery. (5) The procedures to be observed in relation to the conduct of the business of a committee will be— (a) as prescribed by the regulations; or (b) insofar as the procedure is not prescribed by the regulations—as determined by the Minister. Division 4—Fisheries Research and Development Fund 21—Continuation of Fund (1) The Fisheries Research and Development Fund continues in existence. (2) The Fund will continue to be kept in a separate account at the Treasury. (3) The Fund consists of— (a) money in the Fund immediately before the commencement of this Act; and (b) money provided by Parliament for the purposes of the Fund; and (c) grants, gifts and bequests made to the Minister for payment into the Fund; and (ca) voluntary payments from persons and organisations involved in the fishing industry; and (d) fees, levies and charges paid under this Act; and (e) income arising from investment of the Fund; and (f) all other money that is required or authorised by or under this Act or another law to be paid into the Fund. (4) Money in the Fund that is not for the time being required for the purposes of this Act may be invested by the Minister with the approval of the Treasurer. (5) The Minister may apply a part of the Fund— (a) in making a refund required or authorised by this Act to be made; and (b) in payment of a reward under section 123; and (c) in payment of compensation payable to any person under this Act; and (ca) in payment of the costs of— (i) projects relating to the management of aquatic resources; and (ii) research or development relating to the fishing industry; and (d) in making any other payment required by this Act or another law to be made from the Fund; and (e) in payment of expenses of administering the Fund; and (f) in defraying the costs of administering and enforcing this Act. 22—Accounts The Minister must cause proper accounts to be kept in relation to the Fund. 23—Audit The Auditor-General may at any time, and must at least once in each year, audit the accounts of the Fund. Part 4—Commonwealth-State arrangements Division 1—Commonwealth-State joint authorities 24—Powers and functions of Minister (1) The Minister may exercise a power conferred on the Minister by Part 5 of the Commonwealth Act, including a power or function of the Minister as a member of a Joint Authority. (2) If, in the exercise of a power conferred by Part 5 of the Commonwealth Act, the Minister appoints a deputy, the deputy may exercise the power conferred by that Act on the deputy of a member of a Joint Authority other than the Commonwealth Minister. 25—Judicial notice All courts and persons acting judicially must take judicial notice of the signature of a person who is or has been a member of a Joint Authority or a deputy of a member of a Joint Authority and of the fact that the person is, or was at a particular time, a member or deputy. 26—Functions of Joint Authority A Joint Authority has such functions in relation to a fishery in respect of which an arrangement is in force under Division 2 as are conferred on it by the law in accordance with which, under the arrangement, the fishery is to be managed. 27—Delegation (1) A Joint Authority may, by instrument in writing, either generally or otherwise, delegate to a person any of its powers under this Act other than this power of delegation. (2) If a power delegated under subsection (1) is exercised by the delegate, the power will, for the purposes of this Act, be taken to have been exercised by the Joint Authority. (3) A delegation under this section may be expressed as a delegation to the person from time to time holding, or performing the duties of, a specified office, including an office— (a) in the service of; or (b) in the service of an authority of; or (c) under the law of, the Commonwealth or another State of the Commonwealth. (4) A delegate of a Joint Authority is, in the exercise of delegated powers, subject to the directions of the Joint Authority. (5) A delegation under this section— (a) may be revoked, by instrument in writing, by the Joint Authority (whether or not constituted by the persons constituting the Joint Authority at the time the power was delegated); and (b) continues in force despite any change in the membership of the Joint Authority. (6) A certificate signed by a member of a Joint Authority stating a matter with respect to a delegation under this section by the Joint Authority will, in the absence of proof to the contrary, be accepted as proof of the matter stated. (7) In legal proceedings, an apparently genuine document purporting to be a certificate referred to in subsection (6) will, in the absence of proof to the contrary, be taken to be such a certificate and to have been duly given. (8) Nothing in this Part is intended to prevent the delegation by a Joint Authority, in accordance with a law of the Commonwealth, of powers conferred on the Joint Authority by the law of the Commonwealth. 28—Procedure of Joint Authorities (1) Sections 66 to 68 (inclusive) of the Commonwealth Act apply to and in relation to the performance by a Joint Authority of its functions under this Act. (2) A written record of a decision of a Joint Authority, if signed by the Commonwealth Minister, or a deputy of that Minister, who took part in or made the decision will, in the absence of proof to the contrary, be accepted as proof that the decision, as recorded, was duly made. (3) In proceedings in a court, an instrument or other document signed on behalf of a Joint Authority will be taken to have been duly executed by the Joint Authority and, unless the contrary is proved, will be taken to be in accordance with a decision of the Joint Authority. 29—Report of Joint Authority The Minister must cause a copy of a report of a Joint Authority prepared under section 70 of the Commonwealth Act to be laid before each House of Parliament as soon as practicable after preparation of the report. Division 2—Arrangements with Commonwealth with respect to management of particular fisheries 30—Arrangement for management of certain fisheries (1) The State may, in accordance with section 74 of the Commonwealth Act, make an arrangement referred to in section 71 or 72 of that Act for the management of a particular fishery. (2) An arrangement may be terminated or amended as provided by the Commonwealth Act. (3) After an arrangement has been made but before the arrangement takes effect, authorities, endorsements and other instruments may be granted, issued, renewed, made or executed, and regulations, proclamations and notices may be made, for the purposes of the operation of this Act as affected by the arrangement, as if the arrangement had taken effect but such an authority, endorsement, instrument, regulation, proclamation or notice does not have effect before the arrangement takes effect. (4) On termination of an arrangement, authorities, endorsements and other instruments granted, issued, renewed, made or executed, and regulations, proclamations and notices made, for the purposes of the operation of this Act as affected by the arrangement, cease to have effect. (5) After action for the purpose of the termination of an arrangement has been taken but before the termination takes effect, authorities, endorsements and other instruments may be granted, issued, renewed, made or executed, and regulations, proclamations and notices may be made, for the purposes of the operation of this Act as affected by the termination of the arrangement, as if the arrangement had been terminated but such an authority, endorsement, instrument, regulation, proclamation or notice does not have effect before the termination of the arrangement takes effect. 31—Application of this Act to fisheries in accordance with arrangements If there is in force an arrangement that provides that a particular fishery is to be managed in accordance with the law of the State (whether or not also in accordance with some other law), the provisions of this Act apply to and in relation to the fishery except that those provisions do not apply to or in relation to matters that occurred before the arrangement took effect. 32—Application of Commonwealth law to limits of State in accordance with arrangements If there is in force an arrangement that provides that a particular fishery is to be managed in accordance with the law of the Commonwealth (whether or not also in accordance with some other law), the law of the Commonwealth applies to the limits of the State as a law of the State. 33—Functions of Joint Authority (1) If, in respect of a fishery, there is in force an arrangement under which a Joint Authority has the management of the fishery and the fishery is to be managed in accordance with the law of the State (whether or not also in accordance with some other law), the Joint Authority has the functions of keeping constantly under consideration the condition of the fishery, formulating policies and plans for the good management of the fishery and, for the purposes of the management of the fishery, exercising the powers conferred on it by this Act and co-operating and consulting with other authorities (including other Joint Authorities within the meaning of the Commonwealth Act) in matters of common concern. (2) A Joint Authority must, in the performance of its functions under this section, act consistently with, and seek to further, the objects of this Act. 34—Joint Authority to exercise certain powers instead of Minister or Director (1) Subject to this section, an authority or endorsement granted, issued, renewed or made under this Act otherwise than by virtue of this section does not authorise the doing of an act or thing in or in relation to a Joint Authority fishery. (2) The powers conferred before or after the commencement of this Part on the Minister or the Director, or the delegate of the Minister or the Director, by or under this Act (this Part excepted) or the regulations (including powers with respect to the grant, renewal, revocation and suspension of authorities) in respect of a Joint Authority fishery that is to be managed in accordance with the law of the State (whether or not also in accordance with some other law) are exercisable by the Joint Authority to the exclusion of the Minister or the Director or the delegate of the Minister or the Director. (3) An authority granted under this Act by a Joint Authority will contain conditions and limitations that it does not apply in relation to a Joint Authority fishery, or Joint Authority fisheries, not managed by that Joint Authority. (4) A Joint Authority may endorse an authority granted under this Act (including an authority granted by that Joint Authority or another Joint Authority) so as to extend the operation of the authority to matters to which the powers of the Joint Authority under this Act are applicable and, where such an endorsement is made— (a) the endorsement ceases to have effect if the authority ceases to have effect; and (b) the Joint Authority may suspend or revoke the endorsement as if it were an authority granted by the Joint Authority. (5) Subject to section 37(1)(b) and (c), if, at a time a fishery becomes a Joint Authority fishery, a regulation, proclamation or notice under this Act that would, but for this subsection, apply to the fishery, the regulation, proclamation or notice (as the case may be) ceases so to apply. (6) This section does not empower a Joint Authority to grant, or to take other action in respect of, an authority in respect of a foreign boat or to endorse such an authority. 35—Application of certain provisions relating to offences For the purposes of the prosecution of a person for an offence under this Act in respect of anything done to or in relation to fish to which a Joint Authority fishery relates or otherwise in relation to a Joint Authority fishery, a reference in the provision creating the offence to an authority of a particular kind is to be read as a reference to such an authority, or an endorsement of such an authority, granted, issued, renewed or made by the relevant Joint Authority. 36—Presumption relating to certain statements A statement in an arrangement to the effect that specified waters— (a) in the case of an arrangement to which the Commonwealth and the State are the only parties—are waters adjacent to the State; and (b) in the case of any other arrangement—are waters adjacent to the States that are parties to the arrangement or are waters adjacent to a specified State or States, will, for the purposes of this Act, be conclusively presumed to be correct. 37—Regulations relating to Joint Authority fishery (1) If a Joint Authority is to manage a fishery in accordance with the law of the State (whether or not also in accordance with some other law), the Governor may, for the purpose of giving effect to a decision of the Joint Authority— (a) make regulations for the management of the fishery; or (b) make a regulation applying to the fishery a regulation made otherwise than under this section; or (c) vary a regulation made otherwise than under this section so that it is expressed to apply to the fishery, whether or not it also applies to any other fishery. (2) The power conferred on the Governor to make regulations otherwise than under subsection (1) does not extend to the making of a regulation of a kind referred to in subsection (1)(a) or (b) or the amendment of a regulation in the manner referred to in subsection (1)(c). (3) If a regulation affecting a fishery that is to be managed by a Joint Authority is expressed to be made under this section, it will be conclusively presumed that it was made for the purpose of giving effect to a decision of the Joint Authority. Division 3—Arrangements with other States 38—Arrangements with other States The Minister may enter into an agreement with a Minister administering a corresponding law, or with an authority of another State concerned in the administration of that law, for the purpose of co-operation in furthering the objects of this Act (whether in this State or in that other State). 39—Functions (1) For the purposes of this Division, the Minister may perform any power and exercise any function conferred on the Minister under Division 1 or Division 2 as if the Commonwealth Act applied under this Division. (2) Division 1 and Division 2 apply in respect of agreements under this Division, with such modifications as are necessary. Part 5—Management plans for commercial fishing, recreational fishing and aquatic reserves 40—Interpretation In this Part, unless the contrary intention appears— (a) a reference to an aquatic reserve includes a reference to waters, or land and waters, proposed to be constituted as an aquatic reserve; (b) a reference to a draft management plan includes a reference to a draft amendment to, or the draft revocation of, a management plan previously made under this Part; (c) a reference to a fishery includes a reference to a class of fishing activities proposed to be constituted as a fishery; (d) a reference to a management plan includes a reference to an amendment to, or the revocation of, a management plan previously made under this Part. 41—Application of Part This Part does not apply to an aboriginal traditional fishing management plan. 42—Preparation of management plans The Minister may prepare management plans for the following: (a) classes of commercial fishing activities; (b) classes of recreational fishing activities; (c) aquatic reserves. 43—General nature and content of management plans (1) A management plan must— (a) be consistent with the objects of this Act; and (b) be consistent with any relevant aboriginal traditional fishing management plan; and (c) set out the management objectives of the plan and strategies for achieving those objectives; and (d) identify research needs and priorities; and (e) set out the resources required to implement the plan; and (f) take into account— (i) the advice of any committee established by the Minister for that purpose; and (ii) the provisions of any relevant state planning policy or regional plan, and the Planning and Design Code, under the Planning, Development and Infrastructure Act 2016; and (iii) the provisions of any document prescribed for the purposes of this paragraph (insofar as is relevant to the operation of this Act and reasonably practicable). (2) A management plan for a fishery must— (a) identify the fishery to which the plan relates; and (b) describe the biological, economic and social characteristics of the fishery; and (c) identify the impacts or potential impacts of the fishery on its associated ecosystem or ecosystems, including impacts on non-target species of fish or other aquatic resources; and (d) identify any ecological factors that could have an impact on the performance of the fishery; and (e) assess the risks (if any) identified under paragraphs (c) and (d) to determine the most serious risks; and (f) set out strategies for addressing those risks; and (g) set out methods for monitoring the performance of the fishery and the effectiveness of the plan, including performance indicators, trigger points for review or action and progress reporting; and (h) specify the share of aquatic resources to be allocated to each fishing sector under the plan; and (i) prescribe a method, or establish an open and transparent process for determining the method, for adjusting allocations of aquatic resources between the different fishing sectors during the term of the plan; and (j) provide that compensation will be paid to persons whose licences or licence entitlements are compulsorily acquired in order to reduce the share of aquatic resources allocated to the commercial fishing sector and increase the share allocated to another sector. (3) In determining the share of aquatic resources to be allocated to a particular fishing sector under the first management plan for an existing fishery, the share of aquatic resources to which that fishing sector had access at the time the Minister decided to prepare the plan (based on the most recent information available to the Minister) must be taken into account. (4) A management plan may relate to more than 1 class of fishing activity or more than 1 aquatic reserve. (5) In this section— existing fishery means a fishery constituted under this Act by virtue of clause 5 of Schedule 1. 44—Procedure for preparing management plans (1) The Minister must, in relation to a proposal to prepare a management plan— (a) by notice published on a website determined by the Minister or in a newspaper circulating generally within the State, give notice of the intention to prepare the management plan with a description of the general purpose of the proposed management plan; and (b) prepare a draft of the management plan; and (c) seek the views of a representative of all signatories to any indigenous land use agreement that is in force in relation to any of the area to which the plan relates in relation to the draft. (2) The Minister must, after preparing a draft management plan, prepare a report containing— (a) an explanation of the purpose and effect of the draft management plan; and (b) a summary of the background and issues relevant to the draft management plan and of the analysis and reasoning applied in formulating the plan. (3) The Minister, after preparing the draft management plan and related report— (a) refer the plan and report to— (ii) the representative of all signatories to any indigenous land use agreement that is in force in relation to any area to which the plan relates; and (iii) any advisory committee whose area of responsibility is affected by the plan; and (iv) any public authority whose area of responsibility is, in the opinion of the Minister, particularly affected by the plan; and (b) publish a notice in a manner determined by the Minister— (i) giving notice of places at which the draft management plan and report (or copies of the draft management plan and report) are to be available for inspection and, if copies are to be available for purchase, places at which copies may be purchased; and (ii) inviting interested persons to make written submissions in relation to the draft management plan within a period specified in the advertisement (being not less than 2 months from the date of publication of the advertisement); and (iii) stating that the submissions will be available for inspection as provided by subsection (5); and (iv) appointing a place and time at which a public hearing will be commenced by the Minister in which interested persons may appear to be heard in relation to the draft management plan and the submissions. (4) However, the Minister may, in relation to a particular draft management plan, dispense with the requirement for the holding of a public hearing if satisfied that it is not warranted in the circumstances. (5) If written submissions are made in response to a notice published under subsection (3)(b), a copy of those submissions must be made available for inspection by interested persons during ordinary business hours at an office specified by the Minister from the end of the period specified for the making of submissions until a date determined by the Minister. (6) At the time and place appointed for a public hearing, interested persons may appear and make submissions to the Minister that are relevant to the draft management plan or the written submissions relating to the draft management plan. (7) After consulting with and considering the advice of the persons and bodies referred to in subsection (3)(a) on— (a) the provisions of the draft management plan; and (b) all matters raised as a result of public consultation under this section; and (c) any alterations that the Minister proposes should be made to the draft management plan, the Minister may— (d) adopt the draft management plan; or (e) alter the draft management plan and adopt the draft management plan as altered; or (f) decline to adopt the draft management plan. (9) A management plan has no force or effect until adopted by the Minister. (10) On adopting a draft management plan, the Minister must cause notice of that fact to be published in the Gazette. (11) The Minister must, in the Gazette notice adopting a management plan, fix a date on which the plan will take effect. (12) A failure of the Minister to comply with a requirement of this section does not affect the validity of a management plan. 45—Tabling of management plans The Minister must, within 12 sitting days after adopting a management plan, cause copies of the plan to be laid before both Houses of Parliament. 46—Procedure for making certain amendments to management plans (1) The Minister may, by notice in the Gazette, amend a management plan— (a) to correct an error; or (b) to make a change of form (not involving a change of substance) in the plan; or (c) if the Governor is satisfied that the amendment would not substantially alter the plan; or (d) if the plan or the regulations provide that a change of a specified kind may be made by amendment under this section—to make a change of that kind. (2) An amendment under this section takes effect on the day fixed in the Gazette notice of the amendment. 47—Duration of management plans (1) A management plan for a developmental fishery or part of such a fishery expires— (a) on the third anniversary of its commencement; or (b) on the expiry date specified in the plan, whichever is the earlier. (2) Subject to this section, any other management plan expires— (a) on the tenth anniversary of its commencement; or (b) on the expiry date specified in the plan, whichever is the earlier. (3) If— (a) a management plan is due to expire in 6 months or less; and (b) a draft management plan to replace the existing plan has not yet been adopted by the Minister under this Part, the Minister must, by notice in the Gazette published before the expiry of the plan, extend the term of the plan for a period specified in the notice (being a period of not less than 12 months and not more than 5 years). (4) The Minister may not extend the term of a management plan under subsection (3) more than once. (5) If the Minister has extended the term of an existing plan under subsection (3), the Minister must ensure that, during the extended term, he or she adopts a replacement management plan to come into effect on the expiry of the existing plan. 48—Availability and evidence of management plans (1) Copies of each management plan must be kept available for inspection and purchase by the public during ordinary office hours at a place or places determined by the Minister. (2) In legal proceedings, evidence of the contents of a management plan may be given by production of a document certified by the Minister as a true copy of the plan. (3) An apparently genuine document purporting to be a certificate of the Minister will be accepted as such in the absence of proof to the contrary. 49—Review of management plans (1) The Minister may review a management plan at any time. (2) The Minister must, as soon as practicable after the fifth anniversary of the commencement of a management plan, conduct a comprehensive review of the plan for the purpose of determining whether the plan should be amended, replaced or reinstated without amendment. (3) The Minister must prepare a report on the outcome of a review under this section within 12 months after the commencement of the review. (4) The Minister must, within 12 sitting days after completing the report, cause copies of the report to be laid before both Houses of Parliament. (5) If a report under this section recommends that a management plan should be reinstated without amendment on its expiry, the plan may be so reinstated without following the procedures set out in section 44. (6) If a plan is to be reinstated under this section, the Minister must— (a) adopt the plan; and (b) cause notice of that fact to be published in the Gazette; and (c) in the Gazette notice adopting the plan, fix a date on which the plan will take effect. 50—Implementation of management plans (1) The Minister must manage commercial and recreational fishing activities and aquatic reserves in accordance with any relevant management plan adopted by the Minister under this Part. (2) This section does not affect the validity of an act or decision done or made under a provision of this Act (or any regulations under this Act). Part 6—Regulation of fishing and processing Division 1—Commercial fishing 51—Interpretation In this Division— authority means a licence, permit or registration; licence means a fishery licence; permit means a fishery permit; registration means registration of any of the following: (a) a boat; (b) the master of a boat; (c) a device. 52—Obligation of commercial fishers to hold licence or permit A person must not, for a commercial purpose, engage in a fishing activity of a class that constitutes a fishery unless— (a) the person holds a licence or permit in respect of the fishery; or (b) the person is acting as the agent of a person holding a licence or permit in respect of the fishery. Maximum penalty: (a) in the case of a body corporate— (i) if the offence involves the taking of fish of a priority species or a fishing activity engaged in for the purpose of taking fish of a priority species—$500 000; (ii) in any other case—$100 000; (b) in the case of a natural person— (i) if the offence involves the taking of fish of a priority species or a fishing activity engaged in for the purpose of taking fish of a priority species—$250 000 or imprisonment for 4 years; (ii) in any other case—$50 000 or imprisonment for 2 years. 53—Obligation for boats and devices used in commercial fishing to be registered (1) A person must not, for a commercial purpose, use a boat, or cause, suffer or permit a boat to be used, for the purpose of engaging in a fishing activity of a class that constitutes a fishery unless— (a) the boat— (i) is registered for use under a licence or permit in respect of the fishery held by him or her or a person for whom he or she is acting as an agent; or (ii) is being used in the place of a boat referred to in subparagraph (i) with the consent of the Minister and in accordance with the conditions (if any) of that consent; and (b) the boat is in the charge of a natural person who— (i) is registered as the master of a boat that may be used under the licence or permit; or (ii) is acting in the place of a person referred to in subparagraph (i) with the consent of the Minister and in accordance with the conditions (if any) of that consent. Maximum penalty: (a) in the case of a body corporate—$250 000; (b) in the case of a natural person—$50 000. (2) A person must not, for a commercial purpose, use a device, or cause, suffer or permit a device to be used, for the purpose of engaging in a fishing activity of a class that constitutes a fishery unless the device is registered for use under a licence or permit in respect of the fishery held by him or her or a person for whom he or she is acting as an agent. Maximum penalty: (a) in the case of a body corporate—$250 000; (b) in the case of a natural person—$50 000. 54—Application for licence, permit or registration (1) An application for an authority must— (a) be made in a manner and form approved by the Minister; and (b) be completed in accordance with the instructions contained in the form; and (c) be accompanied by the prescribed fee or an instalment of the fee in accordance with the regulations. (2) An applicant must provide the Minister with such evidence as the Minister thinks appropriate as to the identity, age and address of the applicant and any other information required by the Minister for the purposes of determining the application. (3) A licence or permit granted to a natural person may include a photograph of the holder of the licence or permit and, consequently, an applicant for a licence or permit who is a natural person may be required by the Minister— (a) to attend at a specified place for the purpose of having the applicant's photograph taken; or (b) to supply the Minister with 1 or more photographs of the applicant as specified by the Minister. (4) An authority will not be issued by the Minister except on payment of the licence, permit or registration fee prescribed by the regulations or on payment (in accordance with the regulations) of an instalment of the relevant fee. (5) The Minister may, by notice in writing, require an applicant for an authority, within a time fixed by the notice (which may not be less than 28 days after service of the notice), to comply with any requirement under this section to the Minister's satisfaction. (6) If the applicant fails to comply with the notice under subsection (5), the Minister may, without further notice, refuse the application but keep the fee that accompanied the application. (7) An application— (a) for a licence or permit in respect of a fishery—will be determined by the Minister subject to, and in accordance with, the regulations for the fishery; (b) for registration of a boat to be used pursuant to a licence or permit in respect of a fishery—will not be granted by the Minister unless he or she is satisfied— (i) that the applicant is the holder of a licence or permit in respect of the fishery that is in force; and (ii) as to the matters prescribed by the regulations for the fishery; (c) for registration of a person as the master of a boat to be used pursuant to a licence or permit in respect of a fishery—will not be granted by the Minister unless he or she is satisfied— (i) that the applicant is the holder of a licence or permit in respect of the fishery that is in force; and (ii) that a boat is registered in the name of the applicant under this Division; and (iii) that the person nominated as the proposed master is not disqualified from being registered as a master and is otherwise a fit and proper person to be master of the boat; (d) for registration of a device to be used pursuant to a licence or permit in respect of a fishery—will not be granted by the Minister unless he or she is satisfied— (i) that the applicant is the holder of a licence or permit in respect of the fishery that is in force; and (ii) as to the matters prescribed by the regulations for the fishery. (8) The Minister must, before determining an application that relates to, or is to apply in respect of, a specially protected area, consult with the relevant Minister. (9) The Minister must refuse to grant an application for a fishery authority if— (a) the applicant is disqualified from holding or obtaining a fishery authority; or (b) the applicant is a body corporate and a director of the body corporate is disqualified from holding or obtaining a fishery authority. (10) The Minister may refuse to grant an application for an authority in the following circumstances: (a) the Minister is not satisfied the applicant is a fit and proper person to hold an authority of the kind to which the application relates; (b) the Minister is of the opinion that the issue of the authority would be inconsistent with— (i) an inter-governmental agreement or arrangement; or (ii) any instrument made under this Act; (c) in the case of an application to register a device— (i) the applicant does not produce the device for examination after being requested by the Minister to do so; or (ii) the applicant could not lawfully use the device in the fishery even if it were registered; (d) prescribed grounds for the refusal exist. 55—Conditions of licence, permit or registration (1) An authority may be subject to such conditions as the Minister thinks fit and specifies in the authority. (2) The Minister may at any time, by written notice given to the holder of an authority, vary or revoke a condition of the authority, or impose a further condition. (3) The holder of an authority must not contravene a condition of the authority. Maximum penalty: (a) if the condition related to the holder's quota entitlement under the authority—$20 000; (b) in any other case—$10 000. Expiation fee: $500. 56—Duration of authority and periodic fee