Tasmania: Living Marine Resources Management Act 1995 (Tas)

Living Marine Resources Management Act 1995 An Act to promote the sustainable management of living marine resources, to provide for management plans relating to fish resources, to protect marine habitats and to repeal the Fisheries Act 1959 [Royal Assent 15 September 1995] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary Division 1 - Definitions and applications 1. Short title This Act may be cited as the Living Marine Resources Management Act 1995 . 2. Commencement The provisions of this Act commence on a day or days to be proclaimed. 3. Interpretation In this Act – abalone quota unit means one-3500th of the total allowable catch set for the commercial abalone fishery for a quota period; Aboriginal activity means – (a) the non-commercial use of the sea and its resources by Aborigines; and (b) the taking of prescribed fish by Aborigines for the manufacture, by Aborigines, of artefacts for sale; and (c) manufacturing of the kind referred to in paragraph (b) ; Aborigine means an Aboriginal person within the meaning of the Aboriginal Lands Act 1995 ; adult means a natural person who has attained the age of 18 years; apparatus includes – (a) any net, dilly, crab pot, rock lobster pot, rock lobster ring, rake, spade, dredge, implement, gear, equipment, contrivance, device, trap, pitch fork, spear or spear gun used, or capable of being used, in connection with fishing; and (b) any hook, rod or line used, or capable of being used, for fishing; and (c) any buoy, float, raft or dredge used, or capable of being used, in connection with fishing; and (d) anything else used, or capable of being used, in connection with fishing; Appeal Tribunal means the Tasmanian Civil and Administrative Tribunal; approved means approved by the Secretary; approved electronic record system means the electronic record system approved under section 145A ; aquatic observation means an activity on, in or under water relating to the observation of fish and their habitat; arrangement means an arrangement under Part 7 ; authorisation means a permit, licence or other authority permitting a person to undertake an activity; Australian fishing zone means the Australian fishing zone as defined in the Commonwealth Act; coastal waters means – (a) any part of the territorial sea of Australia adjacent to the State within 3 nautical miles of the baseline by reference to which the territorial limits of Australia are defined for the purposes of international law; and (b) the marine or tidal waters on the landward side of any territorial sea of Australia adjacent to the State but not within the limits of the State; Commonwealth Act means the Fisheries Management Act 1991 of the Commonwealth or an Act enacted in substitution of that Act; Commonwealth Minister means the Minister administering the Commonwealth Act and any other Minister exercising powers and performing functions under that Act; commercial purposes means the purpose of sale, processing, manufacture, marine farming or any other purpose that is directed to gain or reward; commercially protected fish means fish referred to in section 100 ; consult includes to seek information, advice, opinion and representation; control order means an order referred to in Division 7 of Part 9 ; conviction includes – (a) a plea of guilty; or (b) a finding by a court that a person committed an offence for which the person was charged even though a conviction was not recorded; or (c) a finding of guilty by a court even though a conviction is not recorded; corresponding law means – (a) the Commonwealth Act; and (b) the Export Control Act 1982 of the Commonwealth; and (c) a law of another State or a Territory of the Commonwealth that relates to the management or protection of living marine resources; deed of agreement means a deed of agreement referred to in section 99 ; demerit point means a demerit point referred to in Division 6 of Part 9 ; document includes – (a) any tape, disc or other device or medium on which information is recorded or stored mechanically, photographically, electronically or otherwise; and (b) anything on which any material has been recorded in a manner that, by the use of any device or instrument, it may be reproduced in a manner suitable for human perception; draft management plan means a draft management plan referred to in Division 2 of Part 3 ; examine includes count, measure, weigh and grade; export means to transport beyond State waters; finfish farming has the same meaning as it has in the Environmental Management and Pollution Control Act 1994 ; fish means fish referred to in section 4 ; fish habitat means an area of the natural environment of fish which has particular importance to the life cycle of fish; fish hatchery means a place or premises where fish are bred for marine farming or sale or for placement or introduction into State waters; fish processing licence means a fish processing licence in force under Part 4 ; fisheries officer means – (a) the Secretary; and (b) a police officer; and (c) a person appointed as a fisheries officer under section 164 ; and (d) an officer referred to in section 171 ; fishery means anything referred to in section 6 ; fishing includes any of the following activities, other than an activity carried out under the authority of a marine farming licence: (a) searching for, attempting to take, catching, taking or harvesting fish; (b) any other activity which may reasonably be expected to result in catching, taking or harvesting fish; (c) an activity under an arrangement that is necessary for an activity under paragraph (a) or (b) to occur under that arrangement; fishing body means a body corporate or an association certified as a fishing body under section 25 ; fishing certificate means a fishing certificate referred to in section 63 ; fishing licence means a fishing licence in force under Part 4 ; fishing vessel means a vessel that is equipped for, or used for, fishing or transporting fish for a commercial purpose; foreign boat means a foreign boat as defined in the Commonwealth Act; habitat protection plan means a plan approved under Division 3 of Part 5 ; handling licence means a handling licence in force under Part 4 ; import means to transport from beyond State waters to within State waters; infringement notice means an infringement notice referred to in Division 5 of Part 9 ; inland waters means waters within the meaning of the Inland Fisheries Act 1995 ; introduced fish means – (a) fish which were brought into the State; and (b) any progeny or subsequent progeny of those fish unless prescribed to be otherwise; Joint Authority means a Joint Authority established under the Commonwealth Act of which the Minister is a member; Joint Authority fishery means a fishery under the management of a Joint Authority; licence means any licence specified in Part 4 ; licensee means a person holding a licence; living marine resources means fish and their environment; management plan means a management plan approved under Part 3 ; managing authority, in relation to a marine resources protected area, means – (a) the Minister; or (b) a body or association declared to be the managing authority under section 115 ; marine farm means an area to which a marine farming licence relates within which marine farming is carried out; marine farming includes the farming, culturing, enhancement or breeding of fish for trade, business or research; marine farming development plan means a marine farming development plan approved under Part 3 of the Marine Farming Planning Act 1995 ; marine farming licence means a marine farming licence in force under Part 4 ; marine resources protected area means an area established as a marine resources protected area under Part 5 ; marine resources protected area management plan means a marine resources protected area management plan approved under Part 5 ; master, in relation to a vessel, means the person having command, charge or management of the vessel; native title rights and interests means native title rights and interests recognised under the Native Title Act 1993 of the Commonwealth; non-exploitative use of fish includes the viewing, photographing or feeding of fish and the feelings associated with knowing fish are in State waters but does not include the removal, killing or injuring of fish; noxious fish means – (a) any fish of a species prescribed as noxious fish; or (b) any fish declared to be noxious fish under section 127 ; noxious matter means any matter which is harmful to fish or fish habitat; objectives of resource management means the objectives set out in Schedule 1 ; permit means a permit under Division 2 of this Part; place includes – (a) any land whether covered by water or not; and (b) any building or structure, whether permanent or temporary; and (c) any vessel, aircraft, vehicle or trailer; and (d) any tent, camp or caravan; possession – see section 6A ; protected fish means fish declared to be protected fish under section 135 ; process, in relation to any fish, means to – (a) void or purge the fish; or (b) break up, cut up, skin or fillet the fish; or (c) shell or shuck the fish; or (d) dry, cure, smoke or cook the fish; or (e) chill the fish (either dead or alive); or (f) freeze the fish; or (g) pack the fish (either dead or alive); or (h) can the fish; or (i) treat the fish by any other means; or (j) hold the fish in readiness for processing by any means; public authority means – (a) a person or body established or constituted by an Act for a public purpose; and (b) a council; public notice means a notice which is published in the Gazette and a daily newspaper circulating generally in the State; purchase includes – (a) take in exchange; and (b) agree or offer to take in exchange; and (c) receive, accept or take delivery under an agreement to take in exchange; quota period means – (a) in relation to the commercial abalone fishery, a period of one year; and (b) in relation to any other fishery, the period during which a total allowable catch may be taken; recreational fishing means fishing carried out other than – (a) for a commercial purpose; or (b) as part of an Aboriginal activity; regulations means regulations made under this Act; repealed Act means the Fisheries Act 1959 ; rock lobster quota unit, for a quota period, means a unit that is an entitlement to one 10 507th of the total allowable catch set for the commercial rock lobster fishery for that quota period; sale includes – (a) any method of disposition for valuable consideration or in the expectation of receiving any kind of reward; and (b) barter; and (c) the disposition to an agent for sale on consignment; and (d) offering or attempting to sell; and (e) receiving or having in possession for sale; and (f) exposing for sale; and (g) sending or delivering for sale; and (h) causing or permitting to be sold, offered or exposed for sale; and (i) disposal by way of raffle, lottery or other game of chance; and (j) resale; Secretary means the Secretary of the Department; size, in relation to fish, includes prescribed measurement of length or breadth, or of other linear measurement or of weight; special penalty means a special penalty referred to in Division 10 of Part 9 ; species means a species, subspecies, hybrid, variant, race, mutation or separate population of any fish; structure includes a platform, pontoon, jetty, building or any other thing used in connection with fishing or marine farming; suitable person – see section 76B ; supervisor means a person referred to in section 89 ; total allowable catch means the total quantity of a kind or species of fish that may be taken from a fishery; take, in relation to fish, includes any of the following activities (except where the activity is authorised under a marine farming licence or fish processing licence): (a) capture, carry away, catch, collect, destroy, dredge or fish for, gather, kill, raise, remove or in any other way obtain the fish (whether from water, land under water or the foreshore); (b) land the fish from a vessel or in any other way bring the fish ashore; (c) transfer the fish from one fishing vessel to another fishing vessel; (d) attempt, cause or permit an act referred to in paragraph (a) , (b) or (c) ; vary includes substitute, add or delete; vehicle includes any vehicle designed to move or be moved on one or more wheels or revolving runners; vessel includes – (a) a boat, ship, craft, hovercraft, aircraft or platform and any trailer used to transport any of them; and (b) a vehicle that is capable of use in or on water whether floating, partly submersible or submersible and whether or not self propelled; waters include – (a) the bed and subsoil under any waters; and (b) the airspace above any waters; waters relevant to the State means – (a) the coastal waters of the State; and (b) the Australian fishing zone. 4. Meaning of fish (1) Fish is any aquatic organism of any species, whether dead or alive, which, in the normal course of events, spends part or all of its life in the aquatic environment. (2) Fish includes – (a) bony fishes of the class Osteichthyes; and (b) sharks, rays, lampreys and other cartilaginous fishes of the classes Chondrichthyes and Agnatha; and (c) aquatic reptiles; and (d) sea squirts and other aquatic chordates; and (e) sea-stars, sea-urchins, sea-cucumbers and other echinoderms; and (f) lobsters, crabs, prawns and other aquatic arthropods; and (g) bristle worms, fan worms, arrowworms and other aquatic annelids, chaetognaths, nematodes, nemerteans and platyhelminths; and (h) squid, oysters, abalone and other aquatic molluscs and brachiopods; and (i) seafans, sponges, corals, jelly-fish, salps and other bryozoans, poriferans, coelenterates and ctenophores; and (j) protozoans and bacteria; and (k) seagrass, seaweed and other aquatic vascular plants, algae, diatoms, euglenoids and any other marine plants. (3) A reference to fish includes – (a) the eggs, spat, spawn, seeds, spores, larvae or other offspring of an aquatic organism; and (b) a shell containing fish or any other part derived from an aquatic organism; and (c) raw, cooked, dismembered, frozen, preserved, salted or otherwise processed fish; and (d) any other saltwater product declared by the regulations to be a fish for the purpose of any provision of this Act. (4) Fish does not include – (a) a whale as defined in the Whales Protection Act 1988 ; or (b) any aquatic mammal or aquatic bird; or (c) freshwater fish as defined in the Inland Fisheries Act 1995 , other than – (i) freshwater fish that – (A) is of a kind or species declared not to be freshwater fish in an order made and in force under section 4(1)(b) of that Act; and (B) is in, or has been taken from, State waters that are not excepted waters as defined in that Act; or (ii) freshwater fish that – (A) is of a kind, or species, of fish that forms a fishery or part of a fishery to which an arrangement applies; and (B) is in, has been taken from, or is to be placed or introduced into, State waters to which the arrangement referred to in subparagraph (ii)(A) relates. 5. Meaning of State waters (1) State waters are – (a) any waters of the territorial sea of Australia that are – (i) within 3 nautical miles of the baseline by reference to which the territorial limits of Australia are defined for the purposes of international law; and (ii) adjacent to the State; and (b) any marine or tidal waters that are on the landward side of that baseline and are adjacent to the State, except inland waters; and (c) any land which is swept by those waters to the highest landward extent; and (d) in relation to a fishery managed under a law of Tasmania under an arrangement, any waters to which the arrangement relates; and (e) in relation to recreational fishing to which the Commonwealth Act does not apply, any waters to which the legislative powers of Tasmania extend. (2) In relation to a fishery managed under a law other than a law of Tasmania under an arrangement, State waters do not include any waters to which the arrangement relates. 6. Meaning of fishery (1) A fishery includes activities by way of fishing identified by reference to any or all of the following: (a) a species, type or class of fish; (b) a description of fish by reference to sex, size or another characteristic; (c) an area of water, seabed or land; (d) a method of fishing; (e) a class or type of vessel; (f) a class of persons; (g) a purpose of an activity; (h) a season. (2) A fishery includes the activity of processing or handling fish. (3) For the purposes of subsection (1)(g) , a purpose of an activity may include, but is not limited to, a purpose of an activity specified in an arrangement entered into under Part 7 . 6A. Meaning of possession (1) A person is taken to be in possession of something for the purposes of this Act if the person has, either alone or jointly with others, actual possession or actual custody of the thing. (2) A person is also taken to be in possession of something for the purposes of this Act if – (a) the thing is at or in a place that the person, either alone or jointly with others, occupies; or (b) the person, either alone or jointly with others, enjoys the thing at or in any place; or (c) the person has, whether it is exercised for the person's own benefit or for the benefit of others, any control over the thing. (3) Subsection (2) applies whether or not any other person has actual possession or actual custody of the thing. (4) However, subsection (2)(a) does not apply if the person proves that the person had no knowledge of the thing. 7. Purpose and objectives (1) The purpose of this Act is to achieve sustainable development of living marine resources having regard to the need to – (a) increase the community's understanding of the integrity of the ecosystem upon which fisheries depend; and (b) provide and maintain sustainability of living marine resources; and (ba) take account of a corresponding law; and (c) take account of the community's needs in respect of living marine resources; and (d) take account of the community's interests in living marine resources. (2) A person must perform any function or exercise any power under this Act in a manner which furthers the objective of resource management. 8. Act binds Crown (1) This Act binds the Crown in right of Tasmania and, in so far as the legislative power of Parliament permits, in all its other capacities. (2) The Crown is not liable for prosecution for an offence under this Act, but an officer, employee or agent of the Crown is liable for prosecution for an offence under this Act. 9. Ownership of living marine resources (1) All living marine resources present in waters referred to in section 5 (1) (a) , (b) and (c) are owned by the State. (2) Any fish specifically provided for under a marine farming licence are not owned by the State but are the property of the holder of that licence. 10. Effect of Act (1) An authorisation under this Act takes precedence over any other public or private fishing rights. (2) Subsection (1) does not – (a) extinguish or impair any native title rights and interests; or (b) preclude Aborigines from engaging in Aboriginal activities. Division 2 - Permits and exemptions 11. Exemption from Act (1) The Minister, by instrument in writing, may exempt a person or a class of persons from any provision of this Act. (1A) The Minister must not, under subsection (1) , exempt a person or a class of persons from a requirement to hold a licence in relation to an activity, referred to in section 64(1)(a) or (c) , that relates to finfish farming. (2) The exemption may be granted on the Minister's own initiative or consequent on an application made by or on behalf of the person or class of persons. (3) The Minister, having regard to any relevant considerations, may grant the exemption – (a) for such period not exceeding 3 years as the Minister thinks fit; and (b) on such conditions, if any, as the Minister thinks fit. (4) The Minister, by instrument in writing, may at any time – (a) vary the conditions of the exemption, if any; or (b) revoke the exemption. (5) The Minister is to ensure that each person who has the benefit of the exemption is given adequate advance notice of the variation of its conditions or of its revocation. (6) However, in the case of a class exemption where not all members of the class are individually known, notice under subsection (5) may be given by means of a public notice. (7) The exemption remains in force until the first of the following occurs: (a) the period for which the exemption has been granted expires; (b) the exemption is revoked. (8) A person must not contravene a condition of an exemption granted under this section. Penalty: Fine not exceeding 500 penalty units or imprisonment for a term not exceeding 6 months, or both, and a daily fine not exceeding 5 penalty units. (9) In this section – relevant consideration, in relation to the granting of an exemption, includes – (a) the reasons for, and the nature and scope of, the exemption; and (b) the purpose and objectives of this Act set out in section 7 ; and (c) whether the exemption is likely to yield any commercial, educational, environmental, economic, scientific or other benefit (either locally, nationally or internationally) having particular regard to fisheries or allied industries; and (d) whether the exemption is likely to involve any risk to the State's fisheries or allied industries; and (e) whether the objects of the exemption are reasonably capable of being attained by other means; and (f) the likely impact of the exemption, if any, on the operation of any management plan; and (g) whether the exemption will be fair having regard to the interests and obligations of any existing licence and permit holders; and (h) the character and antecedents of any person who will have the benefit of the exemption; and (i) the Crown's experience with any exemptions of a similar kind; and (j) compliance monitoring requirements. 12. Permits (1) A person may apply to the Minister for a permit to take any action which otherwise would contravene a provision of this Act for the following purposes: (a) scientific research; (b) the promotion of fishing or fish products; (c) the development of fisheries; (d) the development of fishing technology; (e) educational and community awareness programs; (f) fish stock depletion or enhancement; (g) the collection, keeping, breeding, hatching or cultivating of rare or endangered fish; (h) sport or recreation purposes by a person who, in the opinion of the Minister, would otherwise be unable by reason of that person's disability to engage in fishing by methods permitted under this Act; (i) Aboriginal cultural and ceremonial activities; (j) the development of marine farming; (ja) the marine farming of fish for research purposes pursuant to an arrangement under section 161 ; (k) law enforcement; (l) environmental monitoring; (m) bio-prospecting. (2) An application for a permit is to – (a) be in an approved form; and (b) contain any details the Minister requires; and (c) be accompanied by a fee determined by the Minister; and (d) be lodged with the Minister. (3) The Minister may require an applicant to provide further information or a declaration relating to the application or operation of a permit. (4) The Minister, without any applications being made, may – (a) issue permits authorising the taking of actions which would otherwise contravene provisions of this Act; and (b) determine to whom any such permit is to be issued; and (c) determine the system by which the Minister is to make a determination under paragraph (b) ; and (d) determine the conditions of any such permit. 13. Grant of permit (1) The Minister may – (a) grant an application for a permit; or (b) refuse to grant the application. (2) Before granting an application for a permit, the Minister is to consult with the relevant fishing body if – (a) the Minister considers that granting the application is likely to have a significant effect on the fishing body; or (b) the Minister intends to grant the application for any of the purposes specified in section 12(1)(b) , (c) , (d) , (f) or (j) . (3) However, subsection (2) does not apply to a permit for the purpose specified in section 12(1)(k) . 14. Issue of permit (1) If the Minister grants an application for a permit, the Minister, on payment of any fee the Minister determines, is to issue the permit. (2) The permit is to be in an approved form. 15. Condition of permit (1) The Minister may grant an application for a permit subject to any reasonable condition the Minister determines. (2) A person must not contravene a condition of a permit. Penalty: Fine not exceeding 1 000 penalty units or imprisonment for a term not exceeding 1 year, or both, and a daily fine not exceeding 10 penalty units. (3) The Minister may vary any condition of a permit by notice in writing served on the person who holds the permit. 15A. Permit for conduct of research activities under arrangement (1) In this section – Director, EPA has the same meaning as in section 92A ; finfish has the same meaning as it has in the Environmental Management and Pollution Control Act 1994 ; marine aquaculture research activities means the marine farming of fish for research purposes pursuant to an arrangement under section 161 . (2) Before issuing a permit that authorises marine aquaculture research activities, the Minister must – (a) consult with the Director, EPA in respect of the proposed permit; and (b) if the permit relates to the marine farming of finfish, include in the conditions to which the permit is subject such conditions as the Director, EPA considers are necessary in respect of the marine aquaculture research activities. (3) Marine aquaculture research activities are taken to be research activities for the purposes of the Animal Welfare Act 1993 . 16. Duration of permit A permit remains in force for the period, not exceeding 12 months, specified in the permit unless the Minister sooner revokes it. 17. Revocation of permit The Minister may revoke a permit by notice in writing served on the person who holds the permit. PART 2 - Administration Division 1 - General matters 18. Function of Minister The Minister must ensure that this Act is administered in a way which promotes the sustainable management of living marine resources. 19. Powers of Minister The Minister may do any one or more of the following in order to promote the sustainable management of living marine resources: (a) enter into a joint venture arrangement with another person; (b) buy shares or take an interest in a company; (c) enter into an agreement of any kind. 20. Delegation (1) The Minister, in writing, may delegate to a person any of the Minister's functions or powers, other than – (a) this power of delegation; or (b) any power conferred under sections 19 , 47 (2) , 110 (2) , Division 3 of Part 5 , Parts 6 and 7 and section 279 . (2) The Secretary, in writing, may delegate to a person any of the Secretary's functions or powers other than – (a) this power of delegation; or (b) any power conferred under section 164 . 21. Consultation with police (1) The Secretary must meet with the Commissioner of Police at least 4 times each year to discuss – (a) any matter relevant under this Act; and (b) the following matters in connection with the enforcement of this Act: (i) past activities of the Police Service; (ii) future activities of the Police Service; (iii) any activities of the Department which may affect that enforcement. (2) The Commissioner of Police must provide the Secretary at least 4 times each year with a report containing the following matters: (a) past enforcement and prosecution activities under way or completed; (b) measurement of the appropriateness, effectiveness and efficiency of enforcement activities; (c) any other matter in relation to enforcement; (d) any other matter agreed to at a meeting referred to in subsection (1) or requested by the Secretary. 22. Inquiries (1) The Minister, by instrument in writing, may direct a qualified person to conduct an inquiry into a matter under this Act. (2) Sections 8 and 33 , and Part 3 of the Commissions of Inquiry Act 1995 (other than sections 17 , 18 , 19 and 23 of that Part) apply to the inquiry as if – (a) the qualified person conducting it were a Commission established under section 4 of that Act; and (b) the subject of the inquiry were the matter into which that Commission had been directed to inquire under that Act. (3) In this section – qualified person means – (a) the Secretary; or (b) a person who, in the Minister's estimation, has qualifications, expertise or experience relevant to the subject of the inquiry. 23. Bequests and donations (1) The Minister may acquire by bequest or donation any property for the purposes of this Act. (2) The Minister may agree to a condition to which any bequest or donation is subject if it is consistent with the purposes of this Act. (3) The rule of law relating to perpetuities does not apply to any condition to which the Minister has agreed. (4) Any property acquired under this section, to the extent to which it has not been applied in conformity with any bequest or donation, passes to, and devolves on, the successors in office of the Minister. (5) If the Minister has agreed to a condition, that condition binds the property in the hands of any successor in office of the Minister in whom the property may be vested. 24. Immunity from liability (1) The following persons are not personally liable for an honest act done or omission made in the exercise or purported exercise of a power or the performance or purported performance of a function under this Act: (a) the Minister; (b) the Secretary; (c) a fisheries officer; (d) an assistant fisheries officer; (e) a person employed in the Department. (f) . . . . . . . . (2) Subsection (1) does not preclude the Crown from incurring liability that a person referred to in that subsection would, but for that subsection, incur. Division 2 - Associations and codes of practice 25. Fishing bodies (1) The Minister may issue a certificate certifying that a body corporate is a fishing body if satisfied that it represents the interests of participants in – (a) the fishing industry or part of the fishing industry; or (b) a fishery; or (c) the marine farming industry or part of the marine farming industry; or (d) any combination of these. (2) The Minister may issue a certificate certifying that an association is a fishing body if satisfied that it represents the interests of participants in – (a) the fishing industry or part of the fishing industry; or (b) a fishery; or (c) the marine farming industry or part of the marine farming industry; or (d) any combination of these. (3) The Minister may revoke a certificate if no longer satisfied as to the matters referred to in this section. 26. . . . . . . . . 27. Advisory committees (1) The Minister may establish advisory committees to provide information and advice to the Minister on matters related to the administration of this Act. (2) The Minister may appoint any person as a member of an advisory committee on any terms and conditions the Minister determines. (3) The Minister may abolish an advisory committee at any time. 28. Preparation of draft code of practice (1) Any of the following bodies may prepare a draft code of practice for the purpose of this Act: (a) a fishing body; (b) an advisory committee established under this Act. (2) Before preparing a draft code of practice, a body must consult in writing with – (a) any person or body likely to be affected by the code of practice; and (b) any other person or body the Minister determines. (3) A body must submit to the Minister – (a) a copy of the draft code of practice; and (b) a copy of any submission or representation received from a person or body referred to in subsection (2) (a) or (b) ; and (c) its response to the submission or representation. 29. Matters included in a draft code of practice (1) A draft code of practice may provide for any or all of the following: (a) the preservation of good order amongst fishers; (b) the conduct of persons engaged in commercial or recreational fishing, marine farming activities and handling fish; (c) the efficient utilisation of fishing resources catching strategies; (d) the use of fishing equipment in a safe manner and in particular circumstances or locations; (e) the handling, storage, processing, transport, marketing and presentation of fish for sale; (f) the equipment on fishing boats for the handling and storage of fish; (g) the storage or holding of fish for human consumption; (h) the manner of preparing fish for marketing or sale; (i) the restoration or rehabilitation of fish habitat; (j) the common names of fish to be used in the marketing and sale of fish; (k) any other prescribed matter. (2) A draft code of practice may – (a) include any standards, prescriptions, guidelines, protocols, procedures or other specifications; and (b) apply generally, specifically or in a limited manner or circumstance; and (c) contain different provisions according to differences in time, places or circumstances; and (d) apply to a particular fishery. 30. Approval of code of practice (1) On receipt of a draft code of practice, the Minister, by public notice, must state – (a) the purpose and general effect of the draft code of practice; and (b) the place at which a copy of the draft code of practice may be obtained; and (c) the cost, if any, of obtaining a copy of the draft code of practice; and (d) that any person may submit written representations in relation to the draft code of practice within the period, not less than 45 days, specified in the notice. (2) The Minister must consider any representations received under subsection (1) . (3) The Minister may amend a draft code of practice to remove any inconsistency with this Act, regulations, a management plan or any other Act. (4) The Minister may – (a) approve the draft code of practice; or (b) refuse to approve the draft code of practice. (5) The Minister must not approve a draft code of practice if it contains any provision which is inconsistent with this Act, the regulations, a management plan or any other Act. (6) If the Minister approves a draft code of practice, the Secretary, by public notice, is to notify that approval. 31. Commencement of code of practice A code of practice or a provision of a code of practice takes effect – (a) on the day on which the code of practice is approved by the Minister; or (b) on a later day specified in the code of practice as the day on which it takes effect. PART 3 - Fisheries Management Division 1 - Rules relating to fisheries 32. Management plan A management plan consists of rules relating to a specified fishery. 33. Rules (1) The Minister may make rules in respect of – (a) a management plan; or (b) a fishery in respect of which there is no management plan; or (c) any other matter under this Act. (2) Rules in respect of a management plan take effect on a date specified in the rules that is a date after the provisions of Division 2 of this Part have been complied with. (3) The Minister must – (a) consult with the relevant fishing body before making any rules under subsection (1)(b) or (c) ; and (b) notify any proposed rules by public notice. 34. Fishing licence rules Rules may be made in relation to the following matters relating to fishing licences: (a) different classes of licences; (b) the number of licences to be granted; (c) the criteria and qualifications for the granting of a licence; (d) the procedure or system for determining who are to be granted or issued licences; (e) objections to the granting of licences; (f) endorsement of licences; (g) conditions of licences; (h) the grounds on which the Minister may cancel, suspend or refuse to renew or transfer a licence; (i) the period for which a licence is in force; (j) the criteria for a variation of a licence; (k) the requirement for a licensee to, and the method by which a licensee is to, nominate any area, port or place or period specified in the management plan in or during which fishing is to be undertaken, any vessel is to be used or fish are to be unloaded; (l) the prohibition of more than a specified number of persons from operating under a licence and specifying the functions of those persons. 35. Fishery capacity rules Rules may be made in relation to the following matters relating to the capacity of a fishery: (a) the quantity of fish that may be taken; (b) the apparatus that may be used; (c) the number of vessels and persons in that fishery; (d) the method by which capacity is to be determined. 35A. Rock lobster quota unit rules The Minister may make rules in relation to the taking of rock lobster for commercial purposes in respect of incompletely caught rock lobster quota units in subsequent years. 36. Entitlement rules Rules may be made in relation to the following matters relating to entitlements under a licence: (a) the manner in which any entitlement is to be expressed, fixed, allocated or specified; (ab) the number and nature of an entitlement; (b) the period during which an entitlement arises; (c) the suspension of an entitlement; (d) the manner in which any entitlement is to be increased or reduced; (e) the conversion of one kind of entitlement into another kind of entitlement; (f) the prohibition on doing anything in excess of any entitlement; (g) the authorisation of the transfer or temporary transfer of any entitlement. 37. Prohibited and permitted fishing rules Rules may be made in relation to the following matters: (a) the prohibition of all fishing activities in a fishery or part of a fishery; (b) the prohibition of any fishing activity of a specified class in a fishery; (c) the period during which any fishing activity is permitted or prohibited; (d) the method by which, and circumstances in which, the Minister may– (i) prohibit all fishing activities or any fishing activity of a specified class in a fishery; or (ii) permit in a fishery or in any part of a fishery, fishing or any fishing activity of a specified class that is otherwise prohibited. 38. Rules relating to vessels and apparatus Rules may be made in relation to the following matters relating to vessels and apparatus: (a) the prohibition or regulation of the use of any vessel in a fishery; (b) the registration, marking or identification of any vessel used in a fishery; (c) the reporting of the position of any vessel; (d) the prohibition or regulation of the carrying or use of apparatus in a fishery; (e) the registration or identification of apparatus used in a fishery; (f) the installation, carriage or use of any apparatus on vessels used in a fishery; (g) vessels used for fishing for commercial purposes; (h) vessels used for carrying fish for commercial purposes; (i) charter vessels used for recreational fishing; (j) charter vessels used for non-exploitative use of fish; (k) the use of any vessel for any of the purposes referred to in paragraphs (g) , (h) , (i) and (j) ; (l) the use of vessels for storing, dealing, processing or treating fish; (m) the carrying of any firearm, explosive or toxic or poisonous substance on any vessel used for fishing. 39. Rules relating to fish and fishing Rules may be made in relation to the following matters relating to fish and fishing: (a) the regulation of fishing in a fishery; (b) the possession of fish taken in a fishery; (c) requirements relating to any accidental or incidental taking of fish in a fishery; (d) the identification of fish by any means; (e) the checking, measuring, grading, counting or weighing of fish taken in a fishery; (f) the prohibition of the purchase or sale of fish taken or dealt with in contravention of a management plan; (g) the prohibition of fish being unloaded outside the port, place or area nominated by the holder of a licence; (h) the notification of the time and place of arrival at a place to land fish; (i) the measures to limit accidental or incidental catches; (j) the measures to offset arrangements to compensate for damage to the environment done by fishing or damage to kinds or species of fish which is prohibited or restricted by a management plan; (k) the prohibition in any specified period of taking or bringing fish onto land or into State waters; (l) the possession of a greater quantity, weight or volume of fish of a specified species than the quantity, weight or volume specified in a management plan in respect of that species of fish; (m) the area, port or place in which, or at which, fish may be unloaded or delivered. 40. Miscellaneous matters (1) Rules may be made in relation to the following matters: (a) the obligations on licensees, persons acting for those licensees or masters of vessels; (b) the keeping of records and submissions of returns by – (i) any person acting under a licence; or (ii) any other person who handles, unloads, lands, stores, packs, consigns, transports, processes, sells or purchases fish; (ba) giving effect to any agreement under section 162 ; (c) the participation in research programs and the requirement in that research to carry scientific equipment; (d) the requirement to carry observers or research personnel to research, monitor or ensure compliance with this Act. (2) Rules may provide that the Minister may determine– (a) any opening or closing dates of seasons; and (b) the opening or closure of any part of a fishery; and (ba) the limits for taking or possessing fish; and (bb) the manner in which fish containers and receptacles are to be marked, tagged and notified; and (bc) the type, volume and marking of containers and receptacles containing fish; and (bd) the marking of fish; and (c) any other specified matter relating to the characteristics of fish. (3) If the rules provide for the Minister to make a determination, the rules must specify how that determination is to be notified. 40A. Rules relating to fish processing Rules may be made in respect of the following: (a) fish processing; (b) the manner in which, and the means by which, fish may be unloaded, delivered, consigned or transported for processing; (c) the manner in which fish are received, transported or stored; (ca) the notification of the receipt, dispatch, import or export of fish; (cb) the notification of the time and manner of – (i) taking possession of fish at any place; and (ii) the arrival or departure of fish from a place where the fish are processed or stored; and (iii) the transport of fish to or from a place; and (iv) the transfer of possession of fish to any person at any place; (d) the marking and labelling of receptacles and containers in which fish are transported, exported, received or stored; (e) the dimensions of those receptacles and containers; (f) the treatment of, and dealing with, processed fish; (g) the processing of fish; (h) any premises, place, vessel or vehicle on or in which fish are stored; (i) the quality and quantity of fish for sale within the State or for export. 40B. Rules relating to handling Rules may be made in respect of the following: (a) the manner in which, and the means by which, fish may be unloaded, delivered, consigned or transported by handlers; (b) the manner in which fish are received or stored by handlers; (c) the manner in which fish may be exported; (ca) the notification of the receipt, dispatch, import or export of fish; (cb) the notification of the time and manner of – (i) taking possession of fish at any place; and (ii) the arrival or departure of fish from a place where the fish are processed or stored; and (iii) the transport of fish to or from a place; and (iv) the transfer of possession of fish to any person at any place; (d) the type of receptacle or container in which fish may be exported; (e) the marking and labelling of receptacles and containers in which fish are transported, exported, received or stored; (f) the dimensions of those receptacles and containers; (g) the composition of water or other packing material in which fish are placed when being exported. 40C. Rules relating to fish and fishing Rules may be made in respect of the following: (a) reporting or notifying the landing and receiving of any fish; (b) the non-exploitative use of fish; (c) the possession of – (i) the flesh or other part of any specified class of fish; and (ii) any specified class of mutilated or disfigured fish; (d) the prevention of destruction or wastage of fish; (e) any activities that interfere with, or obstruct, fishing; (f) the size, number, weight or any other characteristics of fish which may be taken, possessed, offered for sale, sold or purchased; (g) the sale and purchase of fish; (h) the landing, surrender to the Crown and sale of fish taken in contravention of this Act; (i) the naming of fish and prohibiting of the sale of fish except under specified names. 40D. General provisions relating to rules (1) Rules may be made so as to apply differently according to any matter, condition, limitation, restriction, exception or circumstance specified in the rules. (2) Rules may adopt or incorporate the whole or any part of any document, standard, rule, code, specification or method, with or without modification, issued, prescribed or published by any person or body before or after the rules take effect. (3) Rules may authorise any matter to be from time to time determined, applied or regulated by – (a) the Minister; or (b) the Secretary or another fisheries officer. (4) Rules that are made wholly or partly in substitution for other rules may contain provisions of a savings and transitional nature. 41. Rules prevail Any provision of rules made under this Division which is inconsistent with a provision of any regulations prevails over the latter provision to the extent of that inconsistency. 41A. Management plan prevails Any provision of a management plan which is inconsistent with any provision of any rules made under this Division prevails over the latter provision to the extent of that inconsistency. 42. Offences and penalties (1) Rules made under this Division may provide that – (a) a contravention of any of the rules is an offence; and (b) in respect of any such offence, provide for the imposition of – (i) a penalty of either or both of the following: (A) imprisonment for a term not exceeding 2 years; (B) a fine not exceeding 5 000 penalty units and, in the case of a continuing offence, a further fine not exceeding 10 penalty units for each day during which the offence continues; or (ii) a penalty specified in the regulations. (2) Rules made under this Division may – (a) provide that an offence under the rules is a prescribed offence for the purposes of Division 5 of Part 9 (an offence in respect of which an infringement notice may be served); and (b) prescribe the penalty or special penalty, or both, for that prescribed offence. Division 2 - Procedures for management plans 43. Decisions to prepare management plan (1) The Minister may determine that a management plan is to be prepared relating to a fishery within State waters. (2) As soon as practicable after the Minister determines that a management plan is to be prepared, the Secretary, after consultation with any appropriate person, must prepare a draft management plan. 44. Public exhibition of draft management plan (1) As soon as possible after a draft management plan has been prepared, the Secretary must refer it to the Minister for approval for it to be publicly exhibited. (2) The Minister may – (a) give approval to the public exhibition of the draft management plan; or (b) refuse to give approval. (3) If the Minister gives approval to the public exhibition of a draft management plan, the Secretary, by public notice, must notify – (a) that a draft management plan has been prepared; and (b) the fishery to which the draft management plan relates; and (c) that a person may submit written representations in relation to the draft management plan; and (d) the period during which representations may be made; and (e) the address to which representations may be sent; and (f) the place at which a copy of the draft management plan may be obtained; and (g) the cost, if any, of obtaining a copy of the draft management plan; and (h) the place at which the draft management plan is exhibited; and (i) the period during which the draft management plan is to be exhibited. (4) The period during which representations may be made and the period during which the draft management plan is to be exhibited is to be each at least 60 days from the date on which the notice is first published. (5) The Secretary may make available – (a) the history of the fishery or area to which a draft management plan relates; and (b) policies considered relevant in the preparation of the draft management plan; and (c) any other information the Secretary considers necessary or advisable to consider the draft management plan. 45. Interim management plan (1) The Minister, by notice published in the Gazette, may declare any rules, regulations, orders or a draft management plan referred to in a public notice under section 44 to constitute an interim management plan. (2) A notice under subsection (1) must state the date on which the interim management plan is to take effect. (3) An interim management plan has effect as if it were a management plan approved under section 47 . (4) An interim management plan which relates to any matter that was the subject of the repealed Act must be generally consistent with that Act. (5) An interim management plan ceases to take effect on the earlier of the following: (a) a date 12 months or later as the Minister determines after it took effect; (b) the date on which a management plan covering the fishery takes effect. 46. Consideration of representations After considering any representations received in relation to a draft management plan, the Secretary – (a) may amend the draft management plan to take account of the representations; and (b) must prepare a report in relation to the representations received. 47. Approval of draft management plan (1) The Secretary must submit to the Minister – (a) the draft management plan with any amendments made under section 46 ; and (b) the report prepared under that section. (2) The Minister must approve a draft management plan if satisfied that – (a) the plan promotes and develops commercial or recreational fishing without detriment to the fish habitat and environment; and (b) the Secretary has taken appropriate action in relation to any representation made in respect of the plan. (3) If the Minister is not satisfied under subsection (2) , the Minister must – (a) advise the relevant fishing body accordingly; and (b) refer the draft management plan to the Secretary; and (c) specify any matter which requires action before the Minister may be satisfied under subsection (2) . (4) The Minister is to make available at the request of any person and on payment of a fee determined by the Minister a copy of a report prepared under section 46 . 48. Notification of approval of draft management plan If the Minister approves a draft management plan, the Secretary, by public notice, must notify – (a) that the draft management plan has been approved; and (b) that the plan as approved is a management plan; and (c) the date on which the management plan takes effect; and (d) the period during which the management plan is in force; and (e) the place at which a copy of the management plan may be obtained; and (f) the cost of obtaining a copy of the management plan; and (g) any other information the Secretary considers relevant to the management plan. 48A. Correction of management plan (1) The Minister, after consultation with the relevant fishing body and by order published in the Gazette, may change a management plan if satisfied that the change is – (a) to correct any error in the management plan; or (b) to remove any anomaly in the management plan; or (c) to clarify or simplify the management plan; or (d) to remove any inconsistency between management plans or between a management plan and any Act; or (e) to make procedural changes to a management plan; or (f) for any other prescribed purpose. (2) The Secretary is to – (a) specify the change by public notice; and (b) notify the change to any person holding a licence for commercial purposes affected by the order by notice served on the licensee. Division 3 - Changes, review and revocation 49. Order changing management plan (1) The Minister, by order published in the Gazette, may change a management plan by amending, substituting or adding any provision of the management plan if satisfied that an emergency has arisen, or is likely to arise, making it necessary or advisable to change the management plan. (2) The Minister may change a management plan for one or more of the following purposes: (a) to safeguard the fish being covered by the management plan from the outbreak of disease or the introduction of exotic kinds or species of fish or other things that are harming, or capable of harming, the fish; (b) to safeguard the quality and quantity of fish covered by the management plan; (c) to protect the fish covered by the management plan or other fish or their habitat from actual or anticipated damage or injury. (2A) . . . . . . . . (3) An order may provide for any one or more of the following: (a) the suspension of fishing; (b) the prohibition, restriction or variation of the controls or the kinds of fishing methods that may be employed; (c) the alteration to the quantity, ages, sizes, sex, kinds or species of fish that may be taken; (d) emergency provisions to safeguard fish; (e) that a contravention of, or failure to comply with, a provision of the order is an offence; (f) the imposition of a penalty in respect of any offence. 50. Notification of changes to management plan (1) Before the Minister makes an order under section 49 – (a) the Minister must consult with the relevant fishing body; and (b) the Secretary, by public notice, must specify the changes that are proposed to be made to a management plan by the order. (2) After the Minister makes an order under section 49 , the Secretary, by notice in writing, must notify any person holding a licence for commercial purposes affected by the order of– (a) the contents of the order; and (b) the period during which the order is in force. (3) The Secretary, by public notice, may publish a notice referred to in subsection (2) . 51. Period of order (1) An order under section 49 is in force for the period, not exceeding 90 days, specified in the order. (2) The Minister, by notice published in the Gazette, may extend an order once only for a further period not exceeding 90 days if satisfied that there is likely to be a significant risk to living marine resources if the order is not extended. 52. Suspension of substituted provision The application of a provision of a management plan which is substituted by an order under section 49 – (a) is suspended for the period during which the order is in force; and (b) has effect the day after that period ends. 53. Review of management plan (1) The Minister may direct the Secretary to conduct a review of a management plan if satisfied that it is necessary or desirable to do so because of biological, economic or other factors relating to the fishery to which the management plan relates. (2) In conducting a review, the Secretary is to consult with – (a) the relevant fishing body; and (b) any person the Secretary considers appropriate. (3) As a result of a review, the Secretary may recommend to the Minister any alterations the Secretary considers should be made to the management plan. (4) The Minister may – (a) approve any alteration to the management plan the Secretary recommends; or (b) refuse to approve any alteration. (5) The Minister is to make available at the request of a person and on payment of a fee determined by the Minister a copy of the review. 54. Notification of proposed alteration (1) If the Minister approves any alteration to a management plan recommended by the Secretary under section 53 , the Secretary, by public notice, must notify – (a) that the management plan is to be altered; and (b) that a person may submit written representations