Fisheries Management Legislation Amendment Regulation 2010 (NSW)
2010 No 105
New South Wales
Fisheries Management Legislation
Amendment Regulation 2010
under the
Fisheries Management Act 1994
Her Excellency the Governor, with the advice of the Executive Council, has made the following Regulation under the Fisheries Management Act 1994.
STEVE WHAN, MP
Minister for Primary Industries
Explanatory note
The object of this Regulation is to amend the Fisheries Management (General)
Regulation 2002 as follows:
| (a) | to prescribe work that involves the removal of certain material from water land as dredging work for the purposes of provisions of the Fisheries Management Act 1994 (the Act) relating to the management of dredging and reclamation work so that a permit will be required to carry out such work, |
| (b) | to increase the penalty payable for the offence of damaging salmon or trout spawning areas, |
| (c) | to prescribe saltmarsh on public water lands as marine vegetation that is protected under the Act, |
| (d) | to provide a defence to a prosecution for possessing protected fish from the Pegasidae, Solenostomidae and Syngnathidae families (commonly known as seamoths, seahorses, pipefish and seadragons) if they are exhibited in an aquarium or used in the aquarium industry and were lawfully taken from or lawfully cultivated in waters of another jurisdiction, |
| (e) | to clarify the circumstances in which possession limits for fish do not apply to commercial fishers and persons who purchase fish taken by commercial fishers, |
| (f) | to prescribe activities that are not routine fishing or farming activities for the purposes of certain defences to threatened species offences, |
| (g) | to increase the application fees for permits to use electrical devices and explosives, |
| Published LW 26 March 2010 | Page 1 |
| 2010 No 105 | |
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| Fisheries Management Legislation Amendment Regulation 2010 Explanatory note | |
| (h) | to establish a new scale of fees for permits under Part 7 of the Act (Protection of aquatic habitats) so that the fee payable for a permit depends on the time required to complete an assessment of the application for the permit, |
(i) to amend the fishing business transfer rules in relation to the transfer of endorsements and shares by a dual operator fishing business,
| (j) | to increase the maximum carrying capacity for certain charter fishing boats, |
| (k) | to update the species of fish that are protected under the Act. |
This Regulation also makes a law revision amendment to the Fisheries Management (Ocean
Trap and Line Share Management Plan) Regulation 2006.
This Regulation is made under the Fisheries Management Act 1994, including sections 18,
19, 21, 127C, Part 7 and sections 220ZF, 220ZFA, 276 and 289 (the general
regulation-making power).
2010 No 105
| Fisheries Management Legislation Amendment Regulation 2010 | Clause 1 |
| Fisheries Management Legislation Amendment Regulation 2010 | |
| under the | |
| Fisheries Management Act 1994 |
1 Name of Regulation
This Regulation is the Fisheries Management Legislation Amendment
Regulation 2010.
2 Commencement
This Regulation commences on the day on which it is published on the
NSW legislation website.
2010 No 105
Fisheries Management Legislation Amendment Regulation 2010
| Schedule 1 | Amendment of Fisheries Management (General) Regulation 2002 |
| Schedule 1 | Amendment of Fisheries Management (General) Regulation 2002 |
[1] Clause 6 Protected fish
Omit the following from Part 1 of the Table under the headings “Common name” and “Species”, respectively:
Black rock cod (or saddle-tail rock cod) Epinephelus daemelii Grey nurse shark Carcharias taurus Weedy seadragon (or common seadragon) Phyllopteryx taeniolatus [2] Clause 6, Table, Part 2 Freshwater species
Omit the following from under the headings “Common name” and “Species”, respectively:
Eastern freshwater cod Maccullochella ikei Trout cod Maccullochella macquariensis Macquarie perch Macquaria australasica [3] Clause 7A
Insert after clause 7:
7A Defence—aquarium fish For the purposes of section 21 (1) (d) of the Act, it is a defence to a prosecution for an offence under section 19 (3) of the Act (relating to the possession of protected fish) if:
(a)
the fish are species of the family Pegasidae, Solenostomidae or Syngnathidae (commonly known as seamoths, seahorses, pipefish and seadragons), and
(b)
the fish are being kept in an aquarium for exhibition or are in the person’s possession for the purposes of sale in the aquarium industry, and
(c)
the fish were lawfully cultivated in or lawfully taken from waters to which this Act does not apply.
2010 No 105
Fisheries Management Legislation Amendment Regulation 2010
| Amendment of Fisheries Management (General) Regulation 2002 | Schedule 1 |
[4] Clause 15
Omit the clause. Insert instead:
15 Possession limits do not apply to fish lawfully taken for sale
(1) It is lawful for a commercial fisher to be in possession of fish in excess of a possession limit specified in this Division if the commercial fisher lawfully took the fish for sale. (2) It is lawful for a person to be in possession of fish in excess of a possession limit specified in this Division if the person purchased or otherwise acquired the fish from another person whose possession of the fish was lawful (whether as a result of subclause (1) or as a result of one or more applications of this subclause). (3) It is a defence to a prosecution for an offence against section 18 of the Act constituted by being in possession of fish in excess of a possession limit specified in this Division if the person charged proves:
(a) that he or she purchased or otherwise acquired the fish from another person, and (b) that the other person’s possession of the fish was lawful or that there were no reasonable grounds to suspect that the other person’s possession of the fish was unlawful.
[5] Clause 113 Permit to use explosives
Omit “$127” from clause 113 (5). Insert instead “$300”.
[6] Clause 115 Permit to use electrical devices
Omit “$127” from clause 115 (5). Insert instead “$300”.
[7] Clause 133E Transfer of external fishing authorities by dual operator fishing businesses
Omit clause 133E (3) (c). Insert instead:
(c)
refuse to issue a new NSW fishing authority to a person who has previously held a NSW fishing authority that has been cancelled by the Minister under this clause,
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Fisheries Management Legislation Amendment Regulation 2010
| Schedule 1 | Amendment of Fisheries Management (General) Regulation 2002 |
[8] Clause 133EA
Insert after clause 133E:
| 133EA | Transfer of endorsements and shares by dual operator fishing businesses | |||||
|
Note. In addition, under clause 133O (2), the Director-General may refuse to approve a transfer of an endorsement or a share that contravenes this clause.
[9] Clause 133H Effect of contravention
Insert after clause 133H (1) (b):
(b1) refuse to issue a new NSW fishing authority to a person who has previously held a NSW fishing authority that has been cancelled by the Minister under this clause,
[10] Clause 195 Application for endorsement
Insert “under clause 198” after “cancelled” in clause 195 (4) (d).
[11] Clause 311 Other conditions of licences
Omit clause 311 (5). Insert instead:
(5)
It is a condition of a licence for a charter fishing boat that the number of persons permitted to fish from the boat at any one time does not exceed the maximum carrying capacity for the charter fishing boat.
(6)
The maximum carrying capacity for a charter fishing boat is the carrying capacity (as at 4 August 1999) of the boat relied on by the licence holder to satisfy the eligibility criteria for the licence under clause 301 or 302, or 4 people, whichever is the higher.
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Fisheries Management Legislation Amendment Regulation 2010
| Amendment of Fisheries Management (General) Regulation 2002 | Schedule 1 |
[12] Clause 337
Omit the clause. Insert instead:
337 Application for permit under Part 7 of Act
(1) An application for a permit under Part 7 of the Act is to be in a
form approved by the Director-General.(2) An application for a permit under Part 7 of the Act is to be
accompanied by:
(a) an application fee of $150, and (b) an assessment fee. (3)
The assessment fee for an application for a permit is to be determined by the Director-General in accordance with this clause on the basis of the time required to complete an assessment of the application.
(4) The assessment fee is:
(a) for a minor assessment—$150, or (b) for a moderate assessment—$350, or (c) for a major assessment— $1,250, or (d) for a complex assessment— $3,250. (5) For the purposes of this clause:
(a)
an assessment is a minor assessment if, in the opinion of the Director-General, the assessment will take up to 3 hours to complete, and
(b)
an assessment is a moderate assessment if, in the opinion of the Director-General, the assessment will take more than 3 hours but less than 7 hours to complete, and
(c)
an assessment is a major assessment if, in the opinion of the Director-General, the assessment will take 7 hours or more but less than 21 hours to complete, and
(d)
an assessment is a complex assessment if, in the opinion of the Director-General, the assessment will take 21 hours or more to complete.
(6)
In determining the time that an assessment will take to complete, the Director-General is to include any time that will be taken to conduct a site visit or to consult with stakeholders, if, in the opinion of the Director-General, a site visit or consultation is necessary for the assessment of the application.
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Fisheries Management Legislation Amendment Regulation 2010
| Schedule 1 | Amendment of Fisheries Management (General) Regulation 2002 |
(7) If, after making a determination as to the level of assessment required in respect of an application, the Director-General determines that any further assessment in respect of the application is required, an additional assessment fee may be charged. (8) The additional assessment fee is $62 for each hour (or part of an hour) of work performed by an officer of the Department in respect of an application (being work not included in the initial determination as to the level of assessment required). (9) In this clause, stakeholder means:
(a) a person likely to be affected by the activity proposed to be permitted, or (b) a person or body having functions under the Environmental Planning and Assessment Act 1979, or any other law, with respect to consent to or approval of the activity proposed to be permitted.
[13] Clause 338
Omit the clause. Insert instead:
338 Marine vegetation—regulation of harm (section 205 of the Act)
(1) The following are declared to be marine vegetation to which
section 205 of the Act applies:
(a) attached marine and estuarine macroalgae, (b) saltmarsh in a protected area. (2)
The taking of sea lettuce (Ulva spp.) and blackfish weed (Enteromorpha spp.) for use as bait is exempt from the operation of section 205 (2) of the Act.
(3) Any activity that harms saltmarsh is exempt from the operation
of section 205 (2) of the Act if:
(a)
the activity is authorised under the Threatened Species Conservation Act 1995, or
(b)
the saltmarsh is on land reserved under Part 4 of the National Parks and Wildlife Act 1974.
(4) In this clause:
marine and estuarine macroalgae means those species of
non-microscopic plants commonly known as seaweeds that
belong to the plant classification divisions of Rhodophyta,
Phaeophyta and Chlorophyta, that are endemic to New South
Wales marine and estuarine waters.
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Fisheries Management Legislation Amendment Regulation 2010
| Amendment of Fisheries Management (General) Regulation 2002 | Schedule 1 |
saltmarsh means an ecological community within the meaning of Part 7A of the Act known as saltmarsh in which one or more of the following species of plants are found:
(a) Baumea juncea, (b) Isolepsis nodosa, (c) Juncus kraussii, (d) Samolus repens, (e) Sarcocornia quinqueflora, (f) Selliera radicans, (g) Sporobolus virginicus, (h) Suaeda australis, (i) Triglochin striata,
(j) Zoysia macrantha.
[14] Clause 339 Fees for permits under Part 7 of the Act
Omit the clause.
[15] Clause 340AB
Insert after clause 340AA:
| 340AB | Dredging work | |
|
(a)
work that involves the removal of woody debris, snags, gravel beds, cobbles, rocks, boulders, rock bars or aquatic vegetation from water land,
(b)
work that involves the removal of any other material from water land that disturbs, moves or harms woody debris, snags, gravel beds, cobbles, rocks, boulders, rock bars or aquatic vegetation.
(2)
In this clause, aquatic vegetation means native vegetation that inhabits freshwater but does not include noxious weeds within the meaning of the Noxious Weeds Act 1993.
2010 No 105
Fisheries Management Legislation Amendment Regulation 2010
| Schedule 1 | Amendment of Fisheries Management (General) Regulation 2002 |
[16] Part 11A, Division 2
Omit the Division. Insert instead:
Division 2 Defences to threatened species offences
| 340D | Activities that are not routine activities in connection with lawful taking of fish or marine vegetation |
For the purposes of section 220ZF (1) (d) of the Act, any activity, which, by its nature, results in, or is likely to result in, the repeated taking of a threatened species of fish (within the meaning of Part 7A of the Act) is declared not to be a routine activity.
| 340DA | Limitations on routine farming practice activities |
| (1) A routine farming practice activity referred to in section 220ZFA (1) (b) of the Act is limited by excluding any activity that involves buying, selling or being in possession of any fish or marine vegetation that is, or is part of, a threatened species, an endangered population or an endangered ecological community (within the meaning of Part 7A of the Act). | |
| (2) A routine farming practice activity referred to in section 220ZFA (1) (b) of the Act is limited by excluding any activity carried out for the purposes of preventing, reducing, minimising or eliminating: |
(a)
damage to or loss of crops, livestock or farming infrastructure (such as dams, fences, buildings, sheds, windmills, bores, air strips, stockyards and farm roads), or
(b) injury to the health of livestock, if the activity results in or is likely to result in the harming of:
(c)
any fish that is, or is part of, a threatened species, an endangered population or an endangered ecological community (within the meaning of Part 7A of the Act), or
(d) any protected marine vegetation. (3) In this clause, protected marine vegetation means marine vegetation to which section 204A, 204B or 205 of the Act applies.
[17] Schedule 5 Penalty notice offences
Omit “$200” from Column 2 in Part 1 in the matter relating to section 206 (1).
Insert instead “$1,000”.
2010 No 105
Fisheries Management Legislation Amendment Regulation 2010
| Amendment of Fisheries Management (Ocean Trap and Line Share | Schedule 2 |
| Management Plan) Regulation 2006 | |
| Schedule 2 | Amendment of Fisheries Management (Ocean Trap and Line Share Management Plan) Regulation 2006 |
Appendix, clause 7C Types of hooks to be used on set lines
Insert after clause 7C (1):
(1A) It is a condition of an endorsement that the endorsement holder
does not contravene this clause.
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