Fisheries Management Amendment Act 2015 (NSW)
An Act to amend the Fisheries Management Act 1994 to make further provision for the management of fishery resources.
This Act is the Fisheries Management Amendment Act 2015.
This Act commences on a day or days to be appointed by proclamation.
(Repealed)
Omit the definition. Insert instead:
(Repealed)
Omit the definition. Insert instead:
(Repealed)
Insert after section 20A:
A person must not, while on board a boat in any waters:
(a) remove a fin from any species of shark, or
(b) be in possession of a shark fin that is not naturally attached to the body of a shark, or
(c) be in possession of any part of a shark.
Maximum penalty:
(a) in the case of an individual:
(i) 200 penalty units or imprisonment for 6 months (or both) for a first offence, or
(ii) 400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or
(b) in the case of a corporation:
(i) 1,000 penalty units for a first offence, or
(ii) 2,000 penalty units for a second or subsequent offence.
The regulations may provide for circumstances in which a person does not commit an offence against this section.
(Repealed)
Insert after section 70 (2):
The Minister is to issue endorsements under this section in accordance with the criteria (if any) specified in the management plan for the fishery.
Omit “of 6 months or such shorter period as is”.
(Repealed)
Insert after section 105:
The holder of a commercial fishing licence must not take fish for sale with the assistance of any other person (a
Maximum penalty: 50 penalty units.
Omit the Division. Insert instead:
A boat may be used for the purpose of a declared commercial fishing boat activity only if a fishing boat licence authorises the use of the boat for declared commercial fishing boat activities.
For the purposes of this Division, a
A
(a) to take fish for sale from waters to which this Act applies, or
(b) to land fish in New South Wales that were taken from other waters (after the boat departed from a port in New South Wales).
The regulations may provide that a boat licensed under a law of the Commonwealth or of another State or a Territory is taken to be authorised to be used for the purposes of declared commercial fishing boat activities.
The master of a boat must not use the boat, or permit the boat to be used, for a declared commercial fishing boat activity unless authorised to do so by a fishing boat licence.
Maximum penalty: 100 penalty units.
The use of a boat for a declared commercial fishing boat activity is authorised by a fishing boat licence only if:
(a) the master of the boat is the holder of a fishing boat licence or acting with the consent of the holder of a fishing boat licence, and
(b) the boat is being used in accordance with that fishing boat licence.
The Minister may issue to a person a licence (a
A fishing boat licence authorises the use of a single boat for all declared commercial fishing boat activities.
A fishing boat licence may be issued whether or not the applicant for the licence is able to provide identification details for the boat to be used under the authority of the licence.
The holder of a fishing boat licence must not use a boat, or permit a boat to be used, for a declared commercial fishing boat activity under the authority or purported authority of the licence unless the holder has given the Secretary notice of the identification details for the boat to be used.
Maximum penalty: 10 penalty units.
The notice must be given in a form approved by the Secretary.
In this section, the
A person may apply to the Minister for the issue of a fishing boat licence.
An application is to be in the form approved by the Minister.
The Minister is required to issue a fishing boat licence if application for the licence is duly made unless the Minister is authorised by the regulations to refuse the application.
A fishing boat licence:
(a) is subject to such conditions as are prescribed by the regulations or specified in the licence, and
(b) remains in force for such period as is specified in the licence, and
(c) may be renewed from time to time in accordance with the regulations, and
(d) may be cancelled or suspended by the Minister in the circumstances authorised by the regulations.
The regulations may prescribe different classes of fishing boat licences.
The Minister may, at any time by notice in writing to the holder of a fishing boat licence, revoke or vary the conditions of the licence or add new conditions. This subsection does not apply to conditions prescribed by the regulations.
The holder of a fishing boat licence who contravenes any condition of the licence is guilty of an offence.
Maximum penalty: 100 penalty units.
The regulations may make provision for or with respect to fishing boat licences. In particular, the regulations may prescribe the fee or fees payable in respect of an application for the issue or renewal of a licence.
This section applies to a boat used for a commercial fishing boat activity that has been declared (or that could be but has not been declared) under section 107 as a commercial fishing boat activity for which a fishing boat licence is required.
The master of a boat to which this section applies, must not use the boat, or permit the boat to be used for a commercial fishing boat activity unless the boat is identified, in the manner required by the regulations, as a commercial fishing boat.
Maximum penalty: 100 penalty units.
In any proceedings under this Act, evidence that a boat was being used or purportedly being used under the authority of a fishing boat licence, is evidence that fish taken by the use of the boat, or landed from the boat, were fish taken for sale.
(Repealed)
Insert before section 127A:
In this Part:
(a) the master of a boat being used for the charter fishing activity (if the activity is not a guided non-motorised activity), or
(b) an employed guide in relation to the charter fishing activity (if the activity is a guided non-motorised activity).
Omit section 127A (1). Insert instead:
A
The recreational fishing activities need not take place in waters within the limits of the State.
Insert “used or” after “the boat is”.
Insert after section 127A:
A
In this section, a
A
The
In this section, a
(a) in the case of a guided non-motorised activity—an employed guide, or
(b) in any other case—the master of the boat or a crew member.
Insert before section 127B:
Omit sections 127B and 127C. Insert instead:
A boat may be used for the purpose of a declared charter fishing activity only if that activity is authorised by a charter fishing licence.
For the purposes of this Part, a
The regulations may provide that a boat licensed or otherwise authorised under a law of the Commonwealth or of another State or a Territory to be used for a charter fishing activity is taken to be authorised under this Part for use in all or any specified declared charter fishing activities.
A person must not provide, or hold out that the person is able to provide, a declared charter fishing activity unless the person:
(a) is the holder of a charter fishing licence or acting with the consent of the holder of a charter fishing licence, and
(b) the licence authorises the charter fishing activity concerned.
Maximum penalty:
(a) in the case of an individual:
(i) 200 penalty units or imprisonment for 6 months (or both) for a first offence, or
(ii) 400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or
(b) in the case of a corporation:
(i) 400 penalty units for a first offence, or
(ii) 800 penalty units for a second or subsequent offence.
The responsible person for a charter fishing activity that is a declared charter fishing activity must not use a boat, or permit a boat to be used, for that charter fishing activity unless authorised to do so by a charter fishing licence.
Maximum penalty:
(a) in the case of an individual:
(i) 200 penalty units or imprisonment for 6 months (or both) for a first offence, or
(ii) 400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or
(b) in the case of a corporation:
(i) 400 penalty units for a first offence, or
(ii) 800 penalty units for a second or subsequent offence.
The use of a boat for a charter fishing activity is authorised by a charter fishing licence only if:
(a) the responsible person is the holder of a charter fishing licence or acting with the consent of the holder of a charter fishing licence, and
(b) the licence authorises the use of a boat for the charter fishing activity concerned, and
(c) the responsible person is in physical possession of that licence at the time that the boat is used for the charter fishing activity, and
(d) the boat is being used in accordance with that licence.
An employed guide for a guided non-motorised activity is taken to permit a boat to be used for a guided non-motorised activity when the employed guide acts as an employed guide in relation to that activity.
The Minister may issue to a person a licence (a
A charter fishing licence authorises the use of a single boat at any given time for the specified declared charter fishing activity, unless the charter fishing activity is a guided non-motorised activity.
A charter fishing licence that authorises a guided non-motorised activity authorises the use of a specified number of boats for the activity.
The boat or boats to be used for the specified declared charter fishing activity need not be identified by the licence, but must comply with any requirements specified in the licence or in the conditions of the licence.
A charter fishing licence:
(a) is subject to such conditions as are prescribed by the regulations or specified in the licence, and
(b) remains in force for such period as is specified in the licence, and
(c) may be renewed from time to time in accordance with the regulations, and
(d) may be cancelled or suspended by the Minister in the circumstances authorised by the regulations.
The regulations may prescribe different classes of charter fishing licences.
The Minister may, at any time, by notice in writing to the holder of a charter fishing licence, revoke or vary the conditions of the licence or add new conditions. This subsection does not apply to conditions prescribed by the regulations.
The holder of a charter fishing licence who contravenes any condition of the licence, or causes or permits any condition of the licence to be contravened, is guilty of an offence.
Maximum penalty:
(a) in the case of an individual:
(i) 200 penalty units or imprisonment for 6 months (or both) for a first offence, or
(ii) 400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or
(b) in the case of a corporation:
(i) 400 penalty units for a first offence, or
(ii) 800 penalty units for a second or subsequent offence.
The regulations may make provision for or with respect to charter fishing licences. In particular, the regulations:
(a) may make provision for or with respect to permitting, prohibiting or restricting the use of a boat for both declared charter fishing activities and for declared commercial fishing boat activities (within the meaning of Division 2 of Part 4), and
(b) may prescribe the fee or fees payable in respect of an application for the issue or renewal of a licence.
A person may apply to the Minister for the issue of a charter fishing licence.
An application is to be in the form approved by the Minister.
The Minister is required to issue a charter fishing licence if an application for the licence is duly made, unless the Minister is authorised or required by the regulations to refuse the application.
Without limiting subsection (3), the regulations may authorise or require the Minister to refuse an application because of any applicable restriction on the issue of charter fishing licences (including the maximum number that may be issued) under a management plan prescribed by the regulations for the charter fishing industry.
Omit “boat licence” wherever occurring in section 127D (1) and (7).
Insert instead “licence”.
Omit section 127E (1). Insert instead:
The responsible person for a charter fishing activity must make such records as the regulations require about any declared charter fishing activity for which the person is a responsible person.
Omit “master of a charter fishing boat”. Insert instead “responsible person”.
Omit “recreational fishing activities”. Insert instead “declared charter fishing activities”.
Omit the paragraph. Insert instead:
any period in which the responsible person did not engage in declared charter fishing activities (that is, use a boat or permit a boat to be used for declared charter fishing activities).
Omit “master of a charter fishing boat” wherever occurring.
Insert instead “responsible person”.
Omit section 127EA (1). Insert instead:
The holder of a charter fishing licence must make such records as the regulations require about declared charter fishing activities that are engaged in under the authority of the licence.
Omit “recreational fishing activities”. Insert instead “declared charter fishing activities”.
Omit the paragraph. Insert instead:
any period in which declared charter fishing activities were not engaged in under the authority of the licence.
Omit “boat” wherever occurring.
Omit the subsection. Insert instead:
The responsible person for a charter fishing activity carried out under the authority of a charter fishing licence must not fail to provide the holder of the licence with such information concerning the charter fishing activity as the licence holder may reasonably require to comply with this section.
Maximum penalty: 200 penalty units.
Omit “boat licence is also master of the boat”.
Insert instead “licence is also the responsible person for charter fishing activities carried out under the licence”.
Omit “boat licence”. Insert instead “licence”.
Insert after section 127F:
The Secretary may, from time to time, determine:
(a) that a business that the Secretary considers to be a separate and identifiable charter fishing business is a recognised charter fishing business, and
(b) the charter fishing licences that are components of that charter fishing business, and
(c) the number and class of seats that are components of that charter fishing business.
A charter fishing licence is a component of a charter fishing business if the Secretary considers that the charter fishing licence is held in connection with the charter fishing business.
A seat is a component of a charter fishing business if the Secretary considers that the seat is available for use by that business under a charter fishing licence held in connection with the charter fishing business.
For the purposes of this Act:
(a) a
recognised charter fishing business is a business determined by the Secretary to be a recognised charter fishing business under this section, and(b) the charter fishing business is comprised of those components that are determined by the Secretary to be components of the charter fishing business.
The Secretary may, from time to time, amend or revoke a determination under this section by making a further determination.
A determination by the Secretary under this section is called a
A charter fishing business determination is to be made in accordance with this Act and any requirements of the regulations.
The Secretary may make a charter fishing business determination at any time:
(a) on his or her own initiative, or
(b) on an application made, in a form and manner approved by the Secretary, by the person or persons who own the business in respect of which the determination is sought.
The Secretary is required to give the person or persons who own a business that is the subject of a charter fishing business determination notice in writing of the determination.
A reference in or under this Act to the
The Secretary is to allocate a unique identification number to each recognised charter fishing business.
The Secretary may endorse a charter fishing licence that is a component of a recognised charter fishing business with the number allocated to the charter fishing business.
The Secretary is required to keep a register of charter fishing business determinations.
For each charter fishing business determination there is to be recorded in the register:
(a) the name of the person or persons who own the business the subject of the determination, and
(b) the number allocated by the Secretary to the charter fishing business, and
(c) particulars of the components of the charter fishing business, and
(d) such other particulars as are required by the regulations to be recorded in the register in relation to the charter fishing business.
The register may be kept wholly or partly by means of a computer.
The register is to be made available for public inspection at the head office of the Department during ordinary business hours.
If the register is kept wholly or partly by means of a computer, subsection (4) may be complied with by making the contents of the register available on the website of the Department.
The Secretary may correct any error in or omission from the register.
A certificate signed or purporting to be signed by the Secretary, or a person employed in the Department who is authorised in writing by the Secretary to exercise the functions conferred by this subsection, that certifies that, on a specified date or during a specified period, the particulars contained in the register as to specified matters were as so specified, is admissible in any proceedings and is evidence of the matters so certified.
The regulations may make provision for or with respect to the transfer of a recognised charter fishing business (or components of a recognised charter fishing business), including by:
(a) prohibiting or restricting any transfer, or specified type of transfer, of a recognised charter fishing business or any component of a recognised charter fishing business, and
(b) providing for the recognition of charter fishing rights following the transfer of a recognised charter fishing business or a component of a recognised charter fishing business.
Such provisions are referred to as
In particular, the charter fishing business transfer rules may provide that a person to whom a component of a recognised charter fishing business is transferred, or purportedly transferred, does not, as a consequence of that action, acquire any right to hold or be issued with a charter fishing licence unless all components of the recognised charter fishing business are either transferred to the person or surrendered to the Minister for cancellation.
The charter fishing business transfer rules may authorise the Minister to cancel a charter fishing licence if the licence or any other component of the charter fishing business of which the licence is a component is transferred, or purportedly transferred, in contravention of the charter fishing business transfer rules.
No compensation is payable by or on behalf of the State for the cancellation of a charter fishing licence in accordance with the charter fishing business transfer rules.
A transfer of a recognised charter fishing business or a component of a recognised charter fishing business must be effected:
(a) by electronic transfer (that is, by using the online transfer system), or
(b) by manual transfer (that is, by giving the Secretary notice in writing of the transfer).
The regulations may prescribe fees for the use of the online transfer system.
For a manual transfer, the notice given to the Secretary must be in an approved form and must be accompanied by the prescribed fee (if any) for manual transfers.
A transfer of a recognised charter fishing business or a component of a recognised charter fishing business does not take effect until the transfer is confirmed.
An electronic transfer is confirmed if the online transfer system generates a message to the effect that the transfer is confirmed.
A manual transfer is confirmed if the Secretary gives notice in writing to the person lodging the transfer that the transfer has been approved.
If a transfer is confirmed, the Secretary must ensure a new charter fishing business determination is made that recognises the transfer.
This section does not authorise a transfer of a recognised charter fishing business or a component of a recognised charter fishing business contrary to the charter fishing business transfer rules.
In this section:
(Repealed)
Insert “activities” after “charter fishing” in section 236A (2) (a).
Omit “boat fishing”. Insert instead “fishing activities”.
Omit “boat operations”. Insert instead “activities”.
Omit “charter fishing boat regulatory controls”.
Insert instead “regulatory controls for charter fishing activities”.
Omit “owners and operators of charter fishing boats”.
Insert instead “owners of charter fishing businesses and operators of boats used for charter fishing activities”.
Insert after section 236A (3):
Expressions used in this section that are defined in Part 4A have the same meanings in this section as they have in that Part.
(Repealed)
Omit section 241 (2) (a). Insert instead:
if the person is in any waters on a boat while it is used, or purportedly used, under the authority of a fishing boat licence, or
(Repealed)
Omit “of a licensed fishing boat” from section 258 (1) (a).
Insert instead “of a boat being used or purportedly being used under the authority of a fishing boat licence”.
(Repealed)
Omit section 283A (3). Insert instead:
The Department is authorised to disclose to the holder of a charter fishing licence any information provided to the Department by a responsible person (within the meaning of Part 4A) in any record made under this Act that relates to the use of a boat for charter fishing activities that were engaged in, or purportedly engaged in, under the authority of the licence (including information provided before the licence holder acquired the licence).
(Repealed)
Omit “boat” from section 286A (g).
(Repealed)
Insert after clause 12A:
A fishing boat licence in force under Division 2 of Part 4 immediately before the amendments made to that Division by the Fisheries Management Amendment Act 2015, is taken, on the commencement of those amendments, to be a fishing boat licence issued under that Division, as amended.
The licence remains in force for the period specified in the licence, unless sooner cancelled or suspended.
Insert after Part 4:
A charter fishing boat licence in force under Part 4A immediately before the commencement of section 127CB, as inserted by the Fisheries Management Amendment Act 2015, is taken, on that commencement, to be a charter fishing licence issued under that section.
The licence remains in force for the period specified in the licence, unless sooner cancelled or suspended.
The charter fishing licence authorises the use of a boat for any charter fishing activity specified in the licence that is a declared charter fishing activity.
The charter fishing licence is taken, from that commencement, to authorise the use of any one boat at any given time for that charter fishing activity (not limited to the boat specified in the licence), subject to any requirements relating to the boat that are specified in the licence, the conditions of the licence or in any regulations made under clause 2.
(Repealed)
(Repealed)
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