Untitled document | CaseChat AU

No judgment structure available for this case.

Fisheries (Further Amendment) Act 1997

Act No. 5/1997

TABLE OF PROVISIONS

Section Page

1. Purpose 1
2. Commencement 2
3. Change to the forced commencement date 2
4. Changes to definitions 2
5. Change to the definition of "fishery" 9
6. Insertion of section 7A 10

7A. Meaning of "species" 10

7. Substitution of section 11 11

11. Application of this Act 11

8. Clarification concerning the contents of management plans 12
9. Substitution of Part 4 12
PART 4—REGULATION OF FISHERIES 12
Division 1—Offences, Licences, General Permits and
Authorisations 12

36. Offences relating to commercial fishing activities 12
37. Offences relating to commercial abalone equipment 13
38. Access licences 14
39. Restrictions concerning access licences 16
40. Offence to receive, consign etc. any fish 17
41. Fish receivers' licences 18
42. Offences relating to aquaculture and live fish etc. 18
43. Aquaculture licences 19
44. Offences relating to recreational fishing 20
45. Recreational fishery licences 21
46. Group recreational fishery licence 22
47. Recreational fishing that does not require a licence 23
48. Delayed implementation of prohibition on unlicensed
recreational fishing in marine waters 23
49. General permit 24
50. Special provisions concerning general permits for
developing fisheries 25
50A. Licence does not confer automatic rights on water
authority property 25

50B. Fishery licences not transferable unless regulations allow 26

i

Section Page
Division 2—Issue, Variation, Conditions etc. of Licences and

Permits 26

51. Issue of fishery licences 26
52. Conditions of fishery licences and permits 28
53. Offence to fail to comply with licence or permit
conditions 28
54. Changes to licence or permit conditions 29
55. Variations of licences and permits by regulation 30
56. Licence transfers and renewals etc. 31
57. Certain licences may be renewed 33
58. Powers of Secretary in respect of fishery licences 35
59. Registration of financial interests 36
60. Cancellation of transferable licence 38
Division 3—Ministerial Directions and Quota Notices

Concerning Fisheries 39

61. Minister may issue directions 39
62. Minister must consult before giving direction 40
63. Compensation arising from the cancellation of access
licences under section 62 40
64. Quota orders 41
65. Individual quota 43
66. Offences in relation to individual quota 44

Division 4—Fishing Closures and Restrictions 47

67. Fishing closures 47
68. Prohibition to prevail 48
68A. Offences in relation to size and catch limits 49

10. Changes concerning protected aquatic biota permits 51
11. Substitution of sections 74 and 75 52

75. Declaration of noxious aquatic species 52

12. Substitution of sections 76–80 53

76. Offences concerning prohibited noxious aquatic species 53

13. Changes concerning noxious aquatic species 54

81. Noxious aquatic species permits 54
14. Change concerning the revocation of a noxious aquatic species

permit 55
15.

Substitution of section 87 56

87. No penalty if noxious aquatic species specimen is killed

immediately 56
16. Changes to the functions of the Fisheries Co-Management

Council 56
17. Repeal of fishery bodies corporate and code of practice

provisions 57
18.

Minor changes concerning enforcement 57

ii

Section Page

19. Changes concerning use of explosives and substances 57
112. Use of explosives, poisons, substances or equipment for

fishing 57

20. Substitution of section 114 58
114. Prohibition on possession, sale or use of boats and

equipment 58

21. Change concerning unlawful interference with equipment 59
22. Widening of court's ability to order removal of obstructions 59
23. Consequential amendment and repeal of redundant provision 59
24. Changes concerning simplification of proof 60
25. Insertion of section 123A 62

123A. Procedure to be followed before certain certificates are

evidence 62

26. Changes concerning evidence of locality 62
27. Substitution of section 126 63

126. Evidence of consignment 63

28. Substitution of section 128 63
128. Additional penalties for licence holders committing

offences 63

29. Substitution of section 129 65

129. Additional penalty—offence by corporation 65

30. Substitution of section 131 65

131. 10 year limit on previous offences by licence holders 65
31. Changes to the functions of the Commercial Fisheries Licensing

Panel 66
32. Clarification concerning the proceedings of the Licensing

Appeals Tribunal 66
33.

Substitution of section 137 67

137. Reviewable decisions 67
34.

Removal of the register 68
35.

Changes concerning research carried out by the Secretary 68
36.

Repeal of section authorising special activities 68
37.

Substitution of section 145 68

145. Availability for inspection 68
38.

Exception to the secrecy provision 69
39.

Change concerning licence and permit applications 69
40.

Changes concerning licences and permits 70
41.

Changes concerning royalties and levies 70
42.

Insertion of section 151A 71

151A. Additional provisions applying to royalties and levies 71
43.

Changes concerning fisheries notices 72
44.

Changes concerning regulation making powers 73
45.

Substitution of section 155 74

155. Saving of existing licences and permits after repeal 74
155A. Conversion of existing licences 75

iii

Section Page

155B. Beneficial owners of abalone licences may seek new

licence 77

155C. Transitional regulations 80

155D. Right to licence lapses if licence not renewed 80

46. Substitution of section 157 80
157. Transitional provision—sections 13A, 13AA and 13C of

the Fisheries Act 1968 81

47. Other changes to transitional provisions 81
48. Insertion of section 158A 81

158A. Transitional provision—issue of licences 82

49. Minor amendment 82
50. Minor and consequential amendments 82
51. Insertion of Schedule 3 85
SCHEDULE 3 85

═══════════════

NOTES 91

iv

Victoria

No. 5 of 1997

Fisheries (Further Amendment) Act

1997†

[Assented to 22 April 1997]

The Parliament of Victoria enacts as follows:
1. Purpose
The purposes of this Act are to generally amend the Fisheries Act 1995 and in particular to change—
(a) the licensing system under that Act; and

(b)

the system of declaring fisheries under that Act; and

(c)

the manner of declaring noxious aquatic species.

Fisheries (Further Amendment) Act 1997

Act No. 5/1997 s. 2

2. Commencement
This Act comes into operation on the day on which it receives the Royal Assent.

3. Change to the forced commencement date
For sections 2(2) and (3) of the Fisheries Act
1995 substitute—
"(2) If a provision of this Act does not come into
operation before 1 January 1999, it comes
into operation on that day.".

4. Changes to definitions
(1) In section 4(1) of the Fisheries Act 1995—

(a) the definitions of "adjusting fishery", "approved code of fishing practice", "commercial fishing licence", "declared
fishery", "endorsement", "export fishery", "input managed fishery", "quota managed fishery", "register", "specially managed

fishery", "taxon" and "transferable fishery
licence" are repealed;
(b)
for the definition of "access licence" ' "abalone" means blacklip and greenlip
abalone and includes all other species,
forms, races and hybrids of abalone;

"access licence" means a licence issued under section 38;';

(c)
for the definitions of "appointed day" and ' "appointed day" means the appointed day
or the relevant appointed day specified
under section 155(3);

"aquaculture licence" means a licence issued under section 43;';

Fisheries (Further Amendment) Act 1997

s. 4	Act No. 5/1997

(d)
for the definition of "closed season" ' "catch limit" means any limit imposed
under this Act on the quantity or type
of fish or fishing bait that may be taken,
possessed or controlled in any specified
circumstances, regardless of—

(a)
whether the limit is expressed in weight, size or value;

(b) how the fish are specified;

(c) whether the circumstances refer to how, when, where or by whom the taking, possessing or controlling
occurs;

(d) whether the limit applies to the whole, or only a part, of Victoria—
and includes trip, possession and bag limits, but does not include any limit relating to total allowable catches set under a quota order or to individual
quotas or individual quota units;

"closed season" in relation to a species of fish means any time or period during which the taking of fish of that species
is prohibited under this Act;';

(e)
for the definition of "commercial abalone ' "commercial abalone equipment" means
any device or mechanical thing that is designed for use, or that is capable of being used, for or in connection with the taking of abalone, and includes any

Fisheries (Further Amendment) Act 1997

Act No. 5/1997 s. 4
underwater breathing apparatus, knife,
probe, lever, iron or bar;';

(f)
for the definition of "commercial fishing ' "commercial fishing equipment"

means—

(a)
net (other than a bait trap,
recreational hoop net, recreational
mesh net or recreational hauling
net when used by a recreational
any fish trap, hoop net or fishing Act);

(b)

any electrical or sonar device that is designed for use, or that is capable of being used, for or in connection with the taking of fish;

(c)

any other device or mechanical thing that is designed for use, or that is capable of being used, for or in connection with the taking of
fish (including any tipper used in
connection with a scallop dredge);
(d) any yabby pot or crab pot;

(e)

any drop line or fishing line left fixed or set in water (including fishing lines, hooks and snoods designed to be fixed or set but not
yet fixed or set) whether or not the
line, hook or snood is fixed or set
from the shore or from a buoy or
other object, but not including
handlines, rods and reels that are
being used by a recreational fisher
in accordance with this Act;

Fisheries (Further Amendment) Act 1997

s. 4	Act No. 5/1997

(f) any rod and line, handline, dip net, recreational bait trap, landing net, gaff, spear gun, hand-held spear,
recreational hoop net, hauling net, mesh net or other amateur fishing equipment when being used by or under the supervision of a fishery licence or permit holder (or the

agent of such a holder) as part of a
commercial fishing activity;
(g)
any other equipment that the fishing equipment;

(h)

any fishing dredge, crab pot, rock lobster pot or longline—
but does not include commercial abalone
equipment unless, in a particular case, that
equipment is also designed for use, or is
capable of being used, for or in connection
with the commercial taking of fish other than
abalone;';

(g)
after the definition of "Commonwealth ' "condition", in relation to a licence or
permit, includes any restriction that
applies to the licence or permit;';

(h)
for the definition of "developing fishery" ' "designated licence condition" means a
licence or permit condition that the regulations specify as a designated licence condition for the purposes of
this Act;

"developing fishery" means a fishery that is not to be managed by the granting of

Fisheries (Further Amendment) Act 1997

Act No. 5/1997 s. 4
renewable licences and that the
regulations, or a Ministerial direction,
define as a developing fishery;
"fish receiver's licence" means a licence issued under section 41;';
(i) in the definition of "fishery licence"—
(i) paragraph (b) is repealed;
(ii) for paragraphs (d) and (e) substitute— "(d) a recreational fishery licence; or
(e) a fish receiver's licence; or

(f)
any other category of licence clause 3.1 of Schedule 3";

(j)
after the definition of "fishery licence" ' "fishing bait" means any species of fauna
declared to be fishing bait under section
6;';

(k) in the definition of "individual quota", for "for a quota managed fishery under section 53(2)(e)" substitute "by a quota order";
(l)
for the definition of "individual quota unit" ' "individual quota unit" means a quantity
of a species of fish (by number,
volume, weight or value) declared
under section 64(1)(c) to be the
individual quota unit for that species;";

(m) in the definition of "inland waters"—
(i) in paragraph (a) for "and Curdies Inlets" substitute "Inlet";

(ii) after paragraph (d) insert—

Fisheries (Further Amendment) Act 1997

s. 4	Act No. 5/1997
"(e) any other waters declared by the regulations to be inland waters— ";

(n)
in the definition of "licence", for paragraph "(b) any category of licence created by the
regulations under clause 3.2 of
Schedule 3;";

(o)
for the definition of "marine waters" ' "marine waters" means Victorian waters

other than—

(a) inland waters;

(b) any waters that are private property;
"Ministerial direction" means a direction given under section 61;';

(p)
for the definition of "open season" ' "open season" in relation to a species of
fish means any time or period during
which the taking of fish of that species
is not prohibited under this Act or
during which the taking of fish of that
species is allowed under this Act;';

(q)
in the definition of "permit", for paragraph "(a) a general permit under section 49;";

(r)

after the definition of "permit" insert— ' "priority species" means—
(a) abalone and rock lobster; and

Fisheries (Further Amendment) Act 1997

Act No. 5/1997 s. 4

(b)

any other species of fish that the regulations state are a priority species;';

(s)
for the definition of "quota notice" ' "quota notice" means a notice issued
under section 65;

"quota order" means an order issued under

section 64;

"quota period" means any period specified
in a quota order as the period over which a total allowable catch or an individual quota is to apply;';

(t)
for the definition of "recreational fishing ' "recreational fishery licence" means a
licence issued under section 45 or a
group recreational fishery licence
issued under section 46;';

(u)

before the definition of "Secretary" insert— ' "rock lobster" means an animal of the

genus Jasus;'.

(2) For sections 4(2), (3) and (4) of the Fisheries Act

1995 substitute—
'(2) A reference to "this Act", "under this Act" or

"by this Act" includes a reference to any
regulations, fisheries notice, Order in
Council, notice, declaration, licence, permit
order, Ministerial direction or other
document or instrument made or issued
under this Act, unless inconsistent with the
context or subject matter.
(3) For the purposes of this Act, any
measurements fixed with respect to the

Fisheries (Further Amendment) Act 1997

s. 5	Act No. 5/1997

taking, possession or sale of any species of fish throughout Victoria or in some part or parts of Victoria are the minimum
permissible measurements applicable with respect to the taking, possession or sale of fish of that species, unless the contrary
intention appears.
(4) Any fish that is less than the minimum

measurement fixed for fish of that species is
referred to in this Act as undersized.'.

(3) For section 4(7) of the Fisheries Act 1995

substitute—
'(7) A reference to "he or she" or to "him or her"

is to be read as including a reference to "it",
if the context permits.
(8) A reference to an individual quota unit includes a reference to a fraction of an individual quota unit, unless a contrary intention appears.

(9) A person who is exempted under this Act

from any provision or requirement under this authorised under this Act to do, or not do, the thing that he or she is exempted from doing, or not doing.'.

5. Change to the definition of "fishery"
(1) For section 7(1) of the Fisheries Act 1995

substitute—
"(1) For the purposes of this Act, a fishery means

a fishery as defined in this Act or in any
Order in Council, regulation, fishery
management plan, Ministerial direction or
intergovernmental agreement or
arrangement.".
(2) In section 7(2) of the Fisheries Act 1995—

Fisheries (Further Amendment) Act 1997

Act No. 5/1997 s. 6

(a)

for paragraph (a) substitute— "(a) a species of fish or fishing bait, whether
generally or by reference to a
characteristic of such a species or by
reference to a particular period of the
life of such a species;";

(b)

for paragraph (f) substitute— "(f) a class of licences or permits;".

6. Insertion of section 7A
After section 7 of the Fisheries Act 1995 insert—
'7A. Meaning of "species"
(1) A reference to a species by name in this Act includes a reference to all subspecies, forms, races and hybrids of that species, unless a

contrary intention appears.

(2) If a species is referred to by the name of a
taxon in this Act, a reference to that species includes a reference to all organisms within that taxon, unless a contrary intention
appears.
(3) A reference to a subspecies by name in this Act includes a reference to all forms, races and hybrids of that subspecies, unless a

contrary intention appears.

(4) A reference to "species" in this Act in any general context is to be read as including a reference to all relevant taxa, subspecies and
other groupings of that species.
(5) For the purposes of this Act, a species may be defined as being constituted by—
(a) any taxonomic group of organisms;

(b)

any species, subspecies, hybrid or genetic grouping of organisms;

Fisheries (Further Amendment) Act 1997

s. 7	Act No. 5/1997

(c)

any other grouping of organisms (for example, by physical or physiological characteristics, size, sex, age,
geographical location, form (for
example whether domesticated or not),
colour, race, variety or by any
combination of these factors).'.

7. Substitution of section 11
For section 11 of the Fisheries Act 1995
substitute—
"11. Application of this Act
(1) This Act applies to any fish, fishing bait,
protected aquatic biota or noxious aquatic species in Victoria, regardless of its origin.
(2) However, a person does not commit any offence under this Act by possessing or controlling any fish, fishing bait or protected
aquatic biota that appears to be possessed or controlled, or to have been taken, contrary to this Act if he or she can prove that the fish,
fishing bait or protected aquatic biota—
(a) was not taken in Victoria; and

(b) was taken in accordance with the law of the place where the fish, fishing bait or protected aquatic biota was taken.

(3) Sub-section (2) does not absolve a person

from complying with this Act with respect to
any fish, fishing bait or protected aquatic
biota that sub-section (2) permits him or her
to possess.

(4) A person does not commit any offence under

this Act by unintentionally taking or
possessing a fish or fishing bait (other than a
fish or fishing bait of a noxious aquatic
species) or protected aquatic biota if—

Fisheries (Further Amendment) Act 1997

Act No. 5/1997 s. 8

(a) the fish, fishing bait or protected aquatic biota is not killed or put into any container; and
(b) all reasonable steps are immediately taken to return the fish, fishing bait or protected aquatic biota to its natural habitat with the least possible injury or damage.".

8. Clarification concerning the contents of management plans
After section 28(7) of the Fisheries Act 1995
insert—
"(8) Guidelines included in a management plan
under sub-section (6)(d) may include criteria designed to reduce the number of licences or permits that are held in respect of a fishery.".

9. Substitution of Part 4
For Part 4 of the Fisheries Act 1995 substitute—
'PART 4—REGULATION OF FISHERIES
Division 1—Offences, Licences, General Permits and Authorisations
36. Offences relating to commercial fishing activities
(1) A person must not—
(a) take fish for sale; or
(b) take fishing bait for sale; or
(c) use commercial fishing equipment—
unless he or she is authorised to do so under
this Act.

Fisheries (Further Amendment) Act 1997

s. 9	Act No. 5/1997

Penalty: If the offence involved a priority
species: 200 penalty units or 12
months imprisonment or both.
In any other case: 100 penalty
units or 6 months imprisonment or
both.
(2) A person must not possess commercial

fishing equipment unless he or she is
authorised to do so under this Act.

Penalty: 40 penalty units.
(3) A person may do any of the things referred to in sub-section (1) or (2) if he or she—

(a) is acting on behalf of the holder of an access licence who is authorised to do that thing; and
(b) is authorised by that access licence to do that thing; and
(c) is not prohibited by this Act from so acting.
37. Offences relating to commercial abalone equipment
(1) A person must not—

(a)

use commercial abalone equipment to take more than twice the catch limit for abalone; or

Fisheries (Further Amendment) Act 1997

Act No. 5/1997 s. 9

(b)

possess commercial abalone equipment and more than twice the catch limit for abalone—
unless he or she is authorised to do so under
this Act.

Penalty: 200 penalty units or 12 months
imprisonment or both.
(2) A person may do any of the things referred to in sub-section (1) if he or she—

(a)

is acting on behalf of the holder of an access licence who is authorised to do that thing; and

(b)

is authorised by that access licence to do that thing; and

(c)

is not prohibited by this Act from so acting.
38. Access licences
(1) The regulations may create classes of access
licences and may specify that the holder of
an access licence of a particular class may do
one or more of the following—
(a) take specified fish for sale;
(b) take specified fishing bait for sale;

(c) use specified commercial fishing or commercial abalone equipment or to use commercial fishing or commercial
abalone equipment generally;

(d)
commercial abalone equipment or to
possess commercial fishing or
possess specified commercial fishing or generally;

Fisheries (Further Amendment) Act 1997

s. 9	Act No. 5/1997

(e) do anything else relating to the taking of fish or fishing bait specified by the regulations;
(f) use a boat to do anything authorised under paragraph (a), (b), (c), (d) or (e);
(g) engage one or more people to do one or more of the things listed in this sub- section.
(2) The Secretary may issue an access licence of a particular class to a person.

(3) An access licence continues in force for the

period specified in the licence by the suspended under this Act.
(4) The Secretary may specify a period of up to
1 year for the purposes of sub-section (3).
(5) An access licence may not be cancelled by
the Secretary except in accordance with
section 58 or 148(9).
(6) An access licence is renewable in accordance with section 57.
(7) The following provisions apply to an access

licence that is transferable if the holder
dies—

(a)

despite anything to the contrary in this Act, the benefit of the licence is deemed to be an asset of the estate of the deceased;

(b)

the personal representative of the deceased is deemed to be the holder of the licence until it is transferred from the personal representative to an eligible person in accordance with this Act;

Fisheries (Further Amendment) Act 1997

Act No. 5/1997 s. 9

(c)

subject to paragraph (d), the licence must be transferred to an eligible person in accordance with section 56 within 1 year of the grant of probate or letters of administration or within 2 years of the date of the death of the deceased, whichever is the earlier;

(d)

the Secretary, on the recommendation of the Commercial Fisheries Licensing Panel, may grant an application by the personal representative for an extension
of the period under paragraph (c) for a
further period not exceeding 1 year.
(8) For the purposes of sub-section (7)
"personal representative" has the same
meaning as it has in section 5 of the
Administration and Probate Act 1958.
39. Restrictions concerning access licences (1) The holder of an access licence of a class
specified by the regulations for the purposes of this sub-section must not personally carry out any of the fishing activities authorised by the licence unless he or she is expressly
permitted to do so by the licence.

Penalty: 200 penalty units or 12 months
imprisonment or both.
(2) The holder of an access licence of a class
specified by the regulations for the purposes of this sub-section must not use the services of any other person to carry out any of the
fishing activities authorised by the licence
unless—

(a)

the other person is, in the opinion of the Secretary, a fit and proper person to carry out those activities; and

Fisheries (Further Amendment) Act 1997

s. 9	Act No. 5/1997

(b)

the licence permits the holder to use the services of that person and states the name of the person on the licence.

Penalty: 200 penalty units or 12 months
imprisonment or both.
(3) The holder of an access licence of a class

specified by the regulations for the purposes
of this sub-section must not use a boat to
carry out any of the fishing activities
authorised by the licence unless the licence
permits the use of that boat and states the
registration number of the boat.

Penalty: 200 penalty units or 12 months
imprisonment or both.
40. Offence to receive, consign etc. any fish
(1) A person must not—

(a)

receive for any purpose any fish of a priority species;
(b) receive for sale any other fish;

(c)

consign for sale any fish of a priority species—
unless he or she is authorised to do so under
this Act.

Penalty: 200 penalty units or 12 months
imprisonment or both.
(2) A person may do any of the things referred to in sub-section (1) if he or she—

(a)

is acting on behalf of the holder of a fish receiver's licence who is authorised to do that thing; and

Fisheries (Further Amendment) Act 1997

Act No. 5/1997 s. 9

(b)

is authorised by that fish receiver's licence to do that thing; and

(c)

is not prohibited by this Act from so acting.
41. Fish receivers' licences
(1) The regulations may create classes of fish
receivers' licences and may specify that the
holder of a fish receiver's licence of a
particular class may do one or more of the
following—

(a)

receive for any specified purpose any fish of a specified priority species;
(b) receive for sale any other specified fish;

(c) consign for sale any fish of a specified priority species.
(2) The Secretary may issue a fish receiver's licence of a particular class to a person.

(3) A fish receiver's licence continues in force

for the period specified in the licence by the suspended under this Act.

42.

Offences relating to aquaculture and live fish etc.
(1) A person must not—

(a)
natural, artificial or partly natural or
artificial) for hatching, rearing,
use, form or create a habitat (whether fishing bait for sale or other commercial purposes;

(b)

hatch, rear, breed, display or grow fish or fishing bait for sale or other commercial purposes; or

Fisheries (Further Amendment) Act 1997

s. 9	Act No. 5/1997

(c) use any commercial aquaculture
equipment—
unless he or she is authorised to do so under

this Act. Penalty: If the offence involved a priority
species: 200 penalty units or 12
months imprisonment or both.
In any other case: 100 penalty
units or 6 months imprisonment or
both.
(2) A person may do any of the things referred to in sub-section (1) if he or she—

(a) is acting on behalf of the holder of an aquaculture licence who is authorised to do that thing; and
(b) is authorised by that aquaculture licence to do that thing; and
(c) is not prohibited by this Act from so acting.
(3) The regulations may exclude specified fish

or fishing bait from all or any of the
provisions of sub-section (1).

(4) If specified fish or fishing bait are excluded from a provision of sub-section (1), a person may do the thing that would otherwise be
prohibited by that provision in respect of that
fish or fishing bait.
43. Aquaculture licences
(1) The regulations may create classes of
aquaculture licences and may specify that the
holder of an aquaculture licence of a
particular class may do one or more of the
following—

Fisheries (Further Amendment) Act 1997

Act No. 5/1997 s. 9

(a)

use, form or create a habitat (whether natural, artificial or partly natural or artificial) in a specified area for hatching, rearing, breeding, displaying or growing specified fish or fishing bait for sale or other commercial purposes;

(b)

hatch, rear, breed, display or grow specified fish or fishing bait for sale or other commercial purposes;
(c) use specified commercial aquaculture
equipment or use commercial
aquaculture equipment generally.
(2) The Secretary may issue an aquaculture
licence of a particular class to a person.
(3) An aquaculture licence continues in force for
the period specified on the licence by the Secretary unless it is sooner cancelled or suspended under this Act.
(4) If an aquaculture licence authorises the

holder of the licence to hatch, rear, breed,
display or grow specified fish or fishing bait
for sale, the holder of the licence is also
authorised to take, store and consign for sale
that fish or fishing bait.

44. Offences relating to recreational fishing A person must not—

(a)

take or attempt to take fish from inland waters; or

(b)

take or attempt to take rock lobster from marine waters; or

(c)

subject to section 48, take or attempt to take fish other than rock lobster from marine waters; or

Fisheries (Further Amendment) Act 1997

s. 9	Act No. 5/1997

(d)
use or possess a recreational hoop net to Victorian waters—

unless he or she is authorised to do so by a recreational fishery licence or is otherwise authorised under this Act.

Penalty: If the offence involves the use of a
recreational mesh net or a
recreational hoop net: 10 penalty
units.
In any other case: 5 penalty units.
45. Recreational fishery licences
(1) The regulations may create classes of
recreational fishery licences and may specify
that the holder of a recreational fishery
licence of a particular class may do one or
more of the following for any purpose other
than for the taking of fish for sale—

(a)

take or attempt to take specified fish from inland waters;

(b)

take or attempt to take rock lobster from marine waters;

(c)

take or attempt to take specified fish other than rock lobster from marine waters;

(d)

use or possess a recreational hoop net in, on or next to Victorian waters;

(e)

use or possess a recreational mesh net in, on or next to Victorian waters.
(2) The Secretary, or a person authorised by the
Secretary, may issue a recreational fishery licence of a particular class to a person.

Fisheries (Further Amendment) Act 1997

Act No. 5/1997 s. 9
(3) A recreational fishery licence continues in

force for the period specified on the licence
by the Secretary.

46. Group recreational fishery licence
(1) The Secretary may issue a group recreational
fishery licence to a representative of a group.
(2) The Secretary may authorise the members of
the group in respect of which the licence is
issued—

(a)

to take or attempt to take fish from inland waters;

(b)

to take or attempt to take rock lobster from marine waters;

(c)

to take or attempt to take fish other than rock lobster from marine waters—
for any purpose other than for the taking of
fish for sale.
(3) The Secretary may issue a group recreational
fishery licence on a one-off basis or on any other basis that he or she thinks appropriate.
(4) The representative of the group may be identified in the licence by name or by reference to the representative's office or
position.
(5) The Secretary may cancel a group
recreational fishery licence at any time and
without notice.

Fisheries (Further Amendment) Act 1997

s. 9	Act No. 5/1997

47. Recreational fishing that does not require a licence
(1) Subject to this Act, a person under the age of 18 years may take fish for any purpose other than for sale without holding a recreational
fishery licence.
(2) Subject to this Act, until the Minister

publishes the notice described in section
48(1), a person may take, or attempt to take,
fish (other than rock lobster) in marine
waters for any purpose other than for the
taking of fish for sale without holding a
recreational fishery licence.

48. Delayed implementation of prohibition on unlicensed recreational fishing in marine waters

(1) Section 44(c) has no effect until the Minister

publishes a notice in the Government from a specified date and that a person must not take or attempt to take fish from marine waters after that date unless authorised by this Act.
(2) The Minister must not publish such a notice
unless—

(a)

she or he receives and endorses a report from the Fisheries Co-Management Council that provides a program for—

(i)
requiring people taking fish in than for sale to hold a recreational fishery licence; and

Fisheries (Further Amendment) Act 1997

Act No. 5/1997 s. 9

(ii)
using the money obtained from imposing that requirement; and

she or he has consulted with the Premier and the Treasurer on the program.
(3) The Secretary must not issue any
recreational fishery licences to do the things
specified in sections 45(1)(c) and 46(2)(c)
until section 44(c) takes effect.
49. General permit
(1) The Secretary may issue a general permit to
a person.
(2) The Secretary may authorise the holder of

the permit to do one or more of the
following—

(a)
to take fish for research, education, fish or scientific purposes; or

(b) to take fish from a developing fishery; or
(c) to carry out any research, exploitation, work or operation for the purpose of developing any fishery or aquaculture; or
(d) to investigate any species of fish or any fishery or any device; or
(e) to sell or dispose of any fish obtained by the person under the permit; or
(f)
equipment, commercial fishing
to use specified commercial abalone equipment.

Fisheries (Further Amendment) Act 1997

s. 9	Act No. 5/1997

(3) A general permit continues in force for the
period specified on the permit by the this Act.
(4) The Secretary may specify a period of up to 3 years for the purposes of sub-section (3).
(5) The Secretary must not issue a general
permit to a person unless the Secretary is satisfied that the person is a fit and proper person to hold the permit.
(6) A general permit is not renewable, but the
Secretary may issue another general permit to a person whose general permit is about to expire or who has previously held a general permit.
(7) A general permit is not transferable.
(8) The Secretary may cancel a general permit at
any time and without notice.

50. Special provisions concerning general
permits for developing fisheries
(1) The Secretary must not issue a general

permit in respect of a developing fishery
unless a Ministerial direction exists in
respect of the fishery.

(2) If the status of a fishery as a developing fishery is revoked, any general permits issued in respect of that fishery are

automatically cancelled.

50A. Licence does not confer automatic rights on water authority property
(1) A licence or permit under this Division does

not confer any authority or consent to enter
on any land that is, or to take or to attempt to

Fisheries (Further Amendment) Act 1997

Act No. 5/1997 s. 9
take fish from any waters that are, owned or
vested in a water authority.
(2) In this section "water authority" means—

(a)

any Authority with a function under Part 8 or 11 of the Water Act 1989; or

(b)

a company that holds a water licence or a water and sewerage licence under the Water Industry Act 1994.

50B. Fishery licences not transferable unless
regulations allow
A fishery licence of a particular category or class is not transferable unless the regulations permit the transfer of licences of that category or class.
Division 2—Issue, Variation, Conditions etc. of
Licences and Permits

51. Issue of fishery licences
(1) Subject to this Act, the Secretary may issue a

fishery licence on—

(a)

the application of a person who satisfies the eligibility criteria, if any, for the issue of the licence; and

(b)

the payment of any fees, royalties and levies payable in respect of the issue of the licence.
(2) An application for a fishery licence must be
made in the form required by the Secretary.
(3) In considering whether to issue a fishery

licence to a person, the Secretary must also
have regard to any relevant
recommendations of the Commercial
Fisheries Licensing Panel.

Fisheries (Further Amendment) Act 1997

s. 9	Act No. 5/1997

(4) The Secretary must refuse to issue a fishery licence if the Secretary considers that—

(a) the applicant does not satisfy the relevant eligibility criteria, if any; or
(b) the issue of the fishery licence would be inconsistent with any regulations, Order in Council, fisheries notice,
management plan or Ministerial
direction; or
(c) the applicant is not a fit and proper person to hold the fishery licence; or
(d)
be inconsistent with an
the issue of the fishery licence would arrangement; or

(e)

any other ground prescribed for the purposes of this sub-section applies.
(5) If there is no relevant management plan, the
Secretary may refuse to issue a fishery licence if the Secretary considers that the issue of the fishery licence would be harmful to the welfare of a fishery.
(6) If a licence is issued for a period of less than 1 year, the licence fee payable for the licence is reduced pro rata (to the nearest month) to
take account of the reduced period for which
it is to be in force.
(7) Despite sub-section (6), a licence fee equal to the pro rata amount payable for a month must be paid for a licence that is issued for less than a month.

(8) Sub-sections (6) and (7) also apply to any levy that is a fixed amount.

Fisheries (Further Amendment) Act 1997

Act No. 5/1997 s. 9
(9) Sub-sections (4), (5), (6), (7) and (8) do not apply to recreational fishery licences.
52. Conditions of fishery licences and permits In addition to any conditions that are imposed by this Act, a fishery licence or a permit is subject to—

(a) any conditions that the Secretary thinks appropriate and that are expressed or referred to in the licence or permit; and
(b) any conditions that are set out in the regulations.
53. Offence to fail to comply with licence or permit conditions
(1) The holder of a fishery licence or a permit

must comply with any condition to which the
licence or permit is subject.
Penalty:

(a)

if the offence involves a priority species or the breach of a designated licence condition: 100 penalty units or 6 months imprisonment or both;

(b)

if the offence is committed by the holder of a recreational fishery licence and paragraph (a) does not apply: 5 penalty units;
(c) in any other case: 50 penalty units.
(2) For the purposes of sub-section (1), if a
person who does any thing on behalf of the holder of a fishery licence does not comply with any condition to which the licence is
subject in doing that thing, the holder of the
licence is deemed to have failed to comply
with that condition.

Fisheries (Further Amendment) Act 1997

s. 9	Act No. 5/1997

(3) Sub-section (2) does not apply if the holder of the licence can prove—

(a) that he or she did everything that was reasonably practicable to ensure that the person would comply with the
condition; and

(b) that he or she did not in any way aid, abet, counsel or procure the person to fail to comply with the condition.
(4) A person who does any thing on behalf of

the holder of a licence must comply with any
condition to which the licence is subject in
doing that thing.
Penalty:

(a) if the offence involves a priority species or the breach of a designated licence condition: 100 penalty units or 6 months imprisonment or both;
(b) in any other case: 50 penalty units. 54. Changes to licence or permit conditions (1) The Secretary may at any time—
(a) vary a fishery licence or a permit; or

(b)

vary or revoke a condition imposed by her or him or impose a new condition on a fishery licence or a permit.
(2) The Secretary may act under sub-section
(1)—
(a) on her or his own initiative; or

(b)

on the written application of the person who holds the licence or permit.

Fisheries (Further Amendment) Act 1997

Act No. 5/1997 s. 9
(3) Before taking action under sub-section

(2)(a), the Secretary must give the person
who holds the licence or permit written
notice of the action that the Secretary
proposes to take and must allow the person
to make written representations about the
intended action within 14 days.

(4) Sub-section (3) does not apply if the

Secretary imposes, varies or revokes a
condition for the purpose of removing any
inconsistency between the licence or permit
and any regulation, Order in Council,
fisheries notice, management plan, order,
Ministerial direction or intergovernmental
agreement or arrangement.

(5) If the Secretary imposes, varies or revokes a condition of a licence or permit, the change has no effect until the Secretary notifies the holder of the licence or permit in writing of the change.
(6) The holder of a licence or permit must return the licence or permit to the Secretary within 10 days of being given notice that the
Secretary has decided to change the licence or permit, unless he or she has a reasonable excuse for not doing so.
Penalty: 5 penalty units.
55. Variations of licences and permits by regulation
If the regulations add, vary or delete a licence or permit condition with respect to a class of licence or permit, the addition, variation or deletion immediately applies to every licence or permit of that class in

Fisheries (Further Amendment) Act 1997

s. 9	Act No. 5/1997

existence, unless the regulations state
otherwise.
56. Licence transfers and renewals etc.
(1) This section applies to a fishery licence that
is transferable.

(2) The holder of the licence or a registered
with the proposed transferee, apply to the
financial interest in the licence may, together transferee in accordance with the regulations.
(3) The Secretary must grant an application for the transfer of the licence if the Secretary is satisfied that—

(a) the proposed transferee is a fit and proper person to hold the licence and satisfies any relevant eligibility criteria; and
(b) the licence is not subject to any action under sections 57 or 58; and
(c) in the case of a licence to be transferred by the holder of the licence, the holders of any registered financial interests in
the licence consent to the transfer of the
licence; and
(d) in the case of a licence to be transferred by the holder of a registered financial interest—
(i) the holder of the licence was, within 7 days of the Secretary receiving the application, given

notice by the Secretary of the
application to transfer the licence;
and

Fisheries (Further Amendment) Act 1997

Act No. 5/1997 s. 9

(ii)
any other holders of a registered consent to the transfer.
(4) The Secretary must not grant an application for the transfer of the licence if the transfer would be inconsistent with the regulations, a
Ministerial direction or a management plan. (5) In considering whether to transfer the
licence, the Secretary must also have regard
to any relevant recommendations of the
Commercial Fisheries Licensing Panel.

(6) The Secretary may grant the application for
the transfer subject to any conditions the inconsistent with the regulations, Ministerial direction or a management plan.
(7) If the Secretary considers that the holder of

the licence is not complying with any
requirement applying to the licence under
this Act, the Secretary may by notice in
writing served on the holder defer the
transfer of the licence until the holder
satisfies the Secretary that the requirement
has been complied with or that the holder is
taking or has taken all reasonable steps to
comply with the requirements of the licence.

(8) The Secretary may defer consideration of an application to transfer a licence if—

(a)

a charge for an offence has been filed at a court, but has not been finally dealt with; and
(b) the charge, if found proven—
(i) may result in the suspension or cancellation of the licence; or

Fisheries (Further Amendment) Act 1997

s. 9

Act No. 5/1997

(ii)	may result in the forfeiture of one or more individual quota units in respect of the licence; or
(iii)	would provide grounds for a finding by the Secretary that the person to whom the licence is to be transferred is not a fit and proper person to hold the licence or does not satisfy any relevant eligibility criteria.

(9) A copy of any notice served on the holder of a licence in accordance with sub-section (3) (d)(i) or (7) must within 7 days of being
served on the licence holder be sent to each
holder of a registered financial interest in the
licence.
57. Certain licences may be renewed
(1) The holder of an access licence, a fish
receiver's licence or any prescribed class of
renewable licence may apply to the Secretary
for the renewal of the licence in accordance
with the regulations.
(2) In considering whether to renew the licence,

the Secretary must have regard to any
relevant recommendations of the
Commercial Fisheries Licensing Panel.

(3) Subject to this section, the Secretary must

renew the licence for a further period if the
licence holder has a record of compliance
with this Act.

(4) If the Secretary considers that the holder of the licence has ceased—

(a)

to satisfy any relevant eligibility criteria; or

Fisheries (Further Amendment) Act 1997

Act No. 5/1997

(b) to be a fit and proper person to hold the licence; or
(c)
to be actively, substantially and authorised by the licence—

the Secretary may by notice in writing
served on the holder require the holder,
within 14 days or such later period as is
specified in the notice, to show sufficient
cause why the renewal of the licence should
not be refused.
(5) If the holder of the licence fails to show

sufficient cause for renewing the licence, the
Secretary may refuse to renew the licence.

(6) The Secretary may refuse to renew a fish receiver's licence if, in the opinion of the Secretary, the premises or place in respect of
which the licence is issued is not appropriate
for the activities authorised by the licence.
(7) If the Secretary refuses to renew a licence in
accordance with this section, the licence is for the purposes of this Act deemed to have been cancelled.
(8) If the Secretary considers that the holder of

the licence is not complying with any
requirement applying to the licence by or
under this Act, the Secretary may by notice
in writing served on the holder defer the
renewal of the licence until the licence
holder satisfies the Secretary that the
requirement has been complied with or that
the holder is taking or has taken all
reasonable steps to comply with the
requirements of the licence.

Fisheries (Further Amendment) Act 1997

s. 9

s. 9	Act No. 5/1997

(9) A copy of any notice served on the holder of a licence in accordance with sub-section (4) or (8) must, within 7 days of being served,
be sent to each holder of a registered
financial interest in the licence.
(10) If the renewal of a licence has been deferred under sub-section (8), the licence is deemed as from the date of its expiry to have been
suspended.

(11) The Secretary may defer the renewal of a

licence while the licence is suspended by a
court.

58. Powers of Secretary in respect of fishery licences

(1) This section applies if—

(a) the Secretary considers that the holder of a fishery licence that is not transferable—
(i) has ceased to satisfy any relevant eligibility criteria; or

(ii)
substantially and regularly
has ceased to be actively, authorised by the licence; or

(b) the holder of a fishery licence has not paid any fee, royalty or levy that is due in respect of the licence within 14 days of the date that it was due.
(2) The Secretary may require the holder of the

licence to show sufficient cause why the
licence should not be cancelled or
suspended.

Fisheries (Further Amendment) Act 1997

Act No. 5/1997 s. 9
(3) The Secretary must make the requirement by

serving a written notice on the holder of the
licence that specifies—

(a) the grounds on which the requirement is being made; and
(b) the time within which the requirement must be complied with.
(4) A copy of any notice served on the holder of a licence in accordance with sub-section (1) must, within 7 days of being served, be sent to each holder of a registered financial

interest in the licence.

(5) If the holder of the licence fails to show
sufficient cause, the Secretary may cancel the licence or suspend the licence for such period as the Secretary determines.
59. Registration of financial interests
(1) This section applies if a person who is not
the holder of a particular access licence has a
financial interest in that licence.
(2) The person, and the holder of the licence,
may register details of the financial interest with the Secretary in the form approved by the Secretary.
(3) The Secretary must, within 21 days of receiving an application to transfer the licence, notify each holder of a registered
financial interest of the application.
(4) Each holder of a registered financial interest who receives the notice must, within 21 days of receiving the notice, advise the Secretary
in writing of his or her approval or
disapproval of the proposed transfer.

Fisheries (Further Amendment) Act 1997
Act No. 5/1997

(5) If all the holders of registered financial

interests in the licence notified under sub-
section (3) do not approve the proposed
transfer, the Secretary must not transfer the
licence.

Fisheries (Further Amendment) Act 1997

Act No. 5/1997 s. 9
(6) If the holder of a registered financial interest

notified under sub-section (3) does not
comply with sub-section (4), the holder is
deemed to have approved of the proposed
transfer.

60. Cancellation of transferable licence
(1) This section applies to a licence that is
transferable and that has been cancelled by a
court.
(2) The Secretary must notify each holder of a

registered financial interest in the licence of
the cancellation.

(3) For the purposes of this section, the

cancellation of the licence is stayed and the
licence is deemed to have been suspended
until whichever of the following first
occurs—

(a)

an appeal against the cancellation of the licence is granted; or

(b)

if there is no appeal against the cancellation of the licence or the appeal is dismissed—

(i)
registered financial interest
transfers the licence to an eligible
the holder of the licence or the Act; or
(ii) the expiry of the period of 6 months after the date on which an appeal should have been lodged or was dismissed (as the case may be).

Fisheries (Further Amendment) Act 1997

s. 9	Act No. 5/1997

(4) If sub-section (3)(b) applies and the holder of the licence fails to transfer the licence in accordance with that sub-section, the licence
is cancelled as from the expiry of the period
of 6 months specified in that sub-section.
(5) If sub-section (3)(b) applies but sub-section

(4) does not apply, the cancellation of the
licence by the court is revoked on the
transfer of the licence to the eligible person.

Division 3—Ministerial Directions and Quota Notices Concerning Fisheries
61. Minister may issue directions
(1) The Minister may give a direction on any
matter relating to the management of one or
more fisheries or one or more zones of a
fishery including (without limiting the scope
of this power)—

(a)

the eligibility criteria that must be met before a person may be issued with a particular category or class of fishery licence or permit, or to have a particular category or class of fishery licence renewed or transferred;
(b) licence reduction arrangements;

(c) requiring the Secretary to cancel licences.
(2) The Minister must publish any direction

given under this section in the Government
Gazette.

(3) The Minister may revoke or amend a

direction at any time by publishing notice of
the revocation or amendment in the
Government Gazette.

Fisheries (Further Amendment) Act 1997

Act No. 5/1997 s. 9
(4) If a direction is to contain measures or
conditions involving expenditure by the Crown other than expenditure within the relevant Department's budget allocation, the
Minister may only give the direction after obtaining the approval of the Treasurer.
(5) The Secretary must comply with any direction given under sub-section (1)(c).
62. Minister must consult before giving direction
The Minister must not give, revoke or amend a direction unless she or he has consulted with—

(a) the Fisheries Co-Management Council;
and

(b)

any other relevant consultative bodies; and
has considered any comments made by those
bodies concerning the direction or its
revocation or amendment.
63. Compensation arising from the cancellation of access licences under section 62
(1) This section applies if an access licence is

cancelled as a result of a direction under
section 61.

(2) The person who held the licence, and any
person who held a registered financial interest in the licence at the time it was cancelled, are each entitled to compensation
for the financial loss suffered as a natural, direct and reasonable consequence of the cancellation of the licence, in proportion to
the extent of their respective interests.

Fisheries (Further Amendment) Act 1997

s. 9	Act No. 5/1997

(3) An application for compensation must be

made to the Secretary in the form specified
by the Secretary.

(4) The Secretary must determine the amount of

compensation payable in accordance with
the regulations.

(5) Compensation is to be paid in the manner permitted under the regulations.
(6) Parts 10 and 11 and section 37 of the Land Acquisition and Compensation Act 1986, with any necessary modifications, apply to the determination of compensation under this
section as if the claim were a claim under
section 37 of that Act.
64. Quota orders
(1) The Governor in Council may, on the
recommendation of the Minister, by order
published in the Government Gazette—

(a)
set the total allowable catch (by specified period for a fishery as a whole or for a specified zone or zones in a fishery;

(b)
determine a method or formula for within a total allowable catch;

(c) determine the quantity of fish (by number, volume, weight or value) comprising an individual quota unit and
the number of individual quota units permitted to be taken by each licence holder in a specified period or specified
fishery or zone;

(d)

determine the allocation of individual quotas to each access licence issued in

Fisheries (Further Amendment) Act 1997

Act No. 5/1997 s. 9

respect of the relevant fishery or zone, and the circumstances, if any, in which the quotas can be exceeded or wholly
or partially transferred or carried over;

(e) set the minimum and maximum individual quota units that may be acquired or held by each licence holder in a specified period or specified fishery or zone;
(f)
determine a method or formula for quota units over a period of time.

(2) A notice has effect from the date it is

published in the Government Gazette, or
from any later date specified in the notice as
the date it is to have effect from.

(3) The Governor in Council may, on the

recommendation of the Minister, revoke or
amend a notice at any time by publishing
notice of the revocation or amendment in the
Government Gazette.

(4) Without intending to limit the generality of

sub-section (3), the Governor in Council
may reduce a total allowable catch, or reduce
the size or allocation of individual quotas,
before the end of the period to which the
total allowable catch or quotas apply.

(5) The Minister must not recommend the

making, revocation or amendment of a notice
unless she or he has consulted with the
commercial peak body and any other
relevant

Fisheries (Further Amendment) Act 1997

s. 9	Act No. 5/1997

consultative bodies and has considered any comments made by those bodies concerning the proposed recommendation.
(6) In referring to a quantity of individual quota

units, an order under this section may refer
to fractions of an individual quota unit.

65. Individual quota
(1) The Secretary must give the holder of an
access licence a quota notice setting out
details of the individual quota allocated to
the licence as soon as is practicable after any
individual quota is allocated to the licence.
(2) If a quota order makes any change to an

individual quota, the Secretary must give the
holder of the access licence a new quota
notice setting out details of the revised
individual quota as soon as is practicable
after the quota order is published.

(3) With the approval of the Secretary, the
holder of an access licence for a fishery or a specified zone of a fishery may, for a quota period—

(a)

transfer to the holder of any other access licence for the same fishery or specified zone of the fishery up to the maximum number of individual quota units permitted to be transferred by the relevant quota order;

(b)

acquire from the holders of any other access licences for the same fishery or specified zone of the fishery additional individual quota units up to the maximum additional number of individual quota units permitted to be acquired by the relevant quota order.

Fisheries (Further Amendment) Act 1997

Act No. 5/1997 s. 9
(4) An application to the Secretary for approval must, where applicable, be accompanied by the relevant quota notice or notices.
(5) The Secretary may grant an application if it

is consistent with every quota order and
management plan that applies to the relevant
fishery or zone.

(6) The Secretary must refuse to grant an

application that is inconsistent with any
relevant provision of this Act.

(7) If the Secretary grants an application, he or

she must issue new quota notices for each
access licence involved in the transfer or
acquisition.

(8) The Secretary must issue a new quota notice for an access licence as soon as is practicable after the access licence is renewed or
transferred.
(9) If an individual quota no longer applies to a

licence in a quota period, the quota notice
required by sub-section (7) or (8) must state
that fact.

66. Offences in relation to individual quota
(1) During any specified quota period, the
holder of an access licence must not take any
fish in excess of the permitted amount.
Penalty:

(a)

For a first offence, 50 penalty units and the forfeiture of whichever is the greater of 1 individual quota unit or the number of individual quota units equivalent to the quantity of excess fish taken.

Fisheries (Further Amendment) Act 1997

s. 9	Act No. 5/1997

(b)

For a second offence, 100 penalty units and the forfeiture of whichever is the greater of 3 individual quota units or the number of individual quota units equivalent to double the quantity of excess fish taken.

(c)

For a third offence, 150 penalty units and the cancellation of any entitlement in respect of the access licence to be allocated an individual quota in the next full quota period after the conviction.

(d)

For a subsequent offence, 200 penalty units or 12 months imprisonment or both, and the cancellation of the access licence.
(2) For the purposes of sub-section (1),
"permitted amount" means the amount of
fish a person is permitted to take under an
access licence by virtue of the number of
individual quota units that he or she holds
under this Act in respect of the licence.
(3) For the purposes of sub-section (1)(c), a

quota period is a full quota period even if it
is shortened in any way by a quota order
made during the quota period.

(4) Individual quota units that are forfeited

under sub-section (1) may be allocated by
the Secretary to one or more holders of
access licences in the same specified zone in
accordance with the regulations.

(5) For the purposes of sub-section (4), the

regulations may require the Secretary to sell
forfeited individual quota units and to sell

Fisheries (Further Amendment) Act 1997

Act No. 5/1997 s. 9
such units by tender, by auction or in any
other manner.
(6) If the number of individual quota units not

yet taken by the holder in the quota period in
which the conviction occurs is less than the
number forfeited under paragraph (a) or (b)
of the penalty under sub-section (1), the
balance of the forfeited number of quota
units is forfeited in the next quota period.

(7) For the purposes of sub-section (6), any

differences in the quantity of fish that
comprise an individual quota unit in different
periods are to be disregarded.

(8) For the purposes of paragraphs (a) and (b) of

the penalty under sub-section (1), if a
quantity of fish does not equate exactly to a
number of individual quota units, the excess
is deemed to be an individual quota unit.

(9) If a person who is acting on behalf of the

holder of an access licence exceeds the
permitted amount for the licence—

(a) he or she is liable to the relevant fines or imprisonment specified in sub- section (1); and
(b) the relevant forfeiture applies to the licence.
(10) The Secretary must issue a new quota notice for an access licence as soon as is practicable after any individual quota units in respect of
the licence are forfeited under this section. (11) If an individual quota no longer applies to a
licence in a quota period, the quota notice
required by sub-section (10) must state that
fact.

Fisheries (Further Amendment) Act 1997

s. 9	Act No. 5/1997

Division 4—Fishing Closures and Restrictions
67. Fishing closures
(1) A regulation or fisheries notice may—

(a)

fix open and closed seasons for fish; and

(b)

prohibit the taking, landing, processing, selling or possessing of fish or fishing bait or a specified species of fish or fishing bait; or

(c)

prohibit the use of specified fishing methods.
(2) A prohibition under sub-section (1)—
(a) may be absolute or conditional;

(b)

may apply in respect of any specified species of fish or fishing bait;

(c)

may apply to any waters or to specified waters or areas;

(d)

may apply for such period as is specified including—
(i) specified times of the day;
(ii) specified periods of a week, month or year;
(iii) specified periods of more than a year;

(e) may apply in respect of specified classes of fishery licences;
(f)
may apply either generally or in people or classes of people.

Fisheries (Further Amendment) Act 1997

Act No. 5/1997 s. 9
(3) A person must not contravene a prohibition under sub-section (1).

Penalty: 100 penalty units or imprisonment
for 6 months or both.
(4) In addition to the penalty under sub-section (3), the regulations or a fisheries notice may provide that, in respect of a specified species of fish, a person is liable to a further
penalty—

(a)

for a first offence, not exceeding ½ penalty unit for each fish of that species taken, landed, sold or possessed;

(b)

for a subsequent offence, not exceeding 1 penalty unit for each fish of that species taken, landed, sold or possessed.
(5) Despite sub-section (3), a person may sell or
process a fish in a closed season for fish of that species if he or she can prove that the fish was not taken in contravention of a
prohibition under sub-section (1).
(6) Sub-section (5) does not apply to a person in

relation to a particular prohibition if the
regulation or fisheries notice creating the
prohibition expressly prohibits the sale or
processing of fish of that species during the
closed season.

68.
Prohibition to prevail over any provision to the contrary in this Act.

Fisheries (Further Amendment) Act 1997

s. 9	Act No. 5/1997

68A. Offences in relation to size and catch limits
(1) A person must not use commercial fishing equipment—

(a)

to take fish that are less than the minimum size, or that are more than the maximum size, specified by the regulations for that species of fish; or

(b)

to take more fish than the catch limit for that species of fish.

Penalty: First offence—50 penalty units or
imprisonment for 3 months or
both.
Subsequent offence—100 penalty
units or imprisonment for 6
months or both.
(2) A person must not possess fish that are less

than the minimum size, or that are more than
the maximum size, specified by the
regulations for that species of fish if—

(a)

the fish were taken by the use of commercial fishing equipment; or

(b)

the fish have been consigned for sale or are possessed for sale.

Penalty: First offence—50 penalty units or
imprisonment for 3 months or
both.
Subsequent offence—100 penalty
units or imprisonment for 6
months or both.

Fisheries (Further Amendment) Act 1997

Act No. 5/1997 s. 9
(3) A person must not take or have in his or her possession—

(a)

fish that are less than the minimum size, or that are more than the maximum size, specified by the regulations for that species of fish; or

(b)

more fish than the catch limit for that species of fish.

Penalty: First offence—10 penalty units. Subsequent offence—20 penalty units.
(4) Sub-sections (1), (2)(a) and (3)(b) do not apply to abalone.
(5) A person must not—

(a)

use commercial abalone equipment to take abalone that is less than the minimum size, or that is more than the maximum size, specified by the regulations for abalone; or

(b)

take or possess more abalone than the catch limit for abalone.

Penalty: First offence—50 penalty units or
imprisonment for 3 months or
both.
Subsequent offence—100 penalty
units or imprisonment for 6
months or both.
(6) Sub-sections (3)(b) and (5)(b) do not apply to a person in the business of processing or selling fish if he or she can prove that any
fish in his or her possession that are in excess of the catch limit were taken in accordance with this Act.

Fisheries (Further Amendment) Act 1997

s. 10

Act No. 5/1997

(7) In addition to any other penalty specified by this section, a person who is guilty of an offence under this section in relation to a priority species is liable to a penalty of up to
1 penalty unit for each fish of the priority
species that is—

(a) less than the minimum size, or that is more than the maximum size, specified by the regulations for that species of fish; or
(b) in excess of the catch limit allowed by the regulations for that species of fish.
(8) An authorised officer or a member of the police force may seize—
(a) any undersized fish; and

(b)

all fish in any basket, bag, box or receptacle (and the basket, bag, box or receptacle), if more than 5% of those fish are undersized.
(9) This section does not apply to a person who
is authorised under this Act to do anything that would otherwise be a contravention of this section.'.

10. Changes concerning protected aquatic biota permits
(1) For section 69(6) of the Fisheries Act 1995

substitute—
"(6) A declaration must be consistent with any

criteria for the declaration of protected
aquatic biota determined by the Minister and
published in the Government Gazette.".

Fisheries (Further Amendment) Act 1997

Act No. 5/1997 s. 11
(2) For sections 72(3)(b) and (c) of the Fisheries Act

1995 substitute—
"(b) may refuse to issue a permit if the applicant

has been convicted of an offence under this Act 1988 or a law of the Commonwealth or of another State or of a Territory that corresponds to any of those Acts.".
Act, the Fisheries Act 1968, the Wildlife
(3) In section 72(4) of the Fisheries Act 1995, for "12

months" substitute "3 years".
11. Substitution of sections 74 and 75
For sections 74 and 75 of the Fisheries Act 1995
substitute—
"75. Declaration of noxious aquatic species
(1) The Governor in Council may, by Order in Council, declare any aquatic species to be noxious.
(2) A declaration cannot be made under sub- section (1) in respect of—
(a) protected aquatic biota; or

(b)
protected wildlife, notable wildlife or Act 1975; or

(c)

protected flora or part of a taxon or community listed under the Flora and Fauna Guarantee Act 1988.
(3) A declaration under sub-section (1)—

(a)

may apply to any species of aquatic flora or fauna (whether alive or dead)

Fisheries (Further Amendment) Act 1997

s. 12	Act No. 5/1997
specified in the declaration, other than mammals, reptiles, amphibians or birds;

(b) may apply to all, or a specified part, of Victoria;
(c) comes into operation on the date the Order in Council is published in the Government Gazette or any later date
specified in the declaration as the date
of commencement.
(4) A declaration is a subordinate instrument for

the purposes of the Interpretation of
Legislation Act 1984.

(5) The Governor in Council may at any time, by Order in Council, amend or revoke any Order made under sub-section (1).".

12. Substitution of sections 76–80
For sections 76, 77, 78, 79 and 80 of the Fisheries
Act 1995 substitute—
"76. Offences concerning prohibited noxious
aquatic species
Unless authorised under this Act, a person must not bring into Victoria or take, hatch, keep, possess, sell, transport, put into any
container or release into protected waters any aquatic species that is declared to be noxious under section 75.

Penalty: First offence: 100 penalty units.
Second offence: 200 penalty
units.".

Fisheries (Further Amendment) Act 1997

Act No. 5/1997 s. 13

13. Changes concerning noxious aquatic species For section 81 of the Fisheries Act 1995 substitute—
"81. Noxious aquatic species permits
(1) The Secretary may issue a noxious aquatic
species permit to a person authorising the person to do anything that is prohibited by section 76.
(2) In considering whether to issue a permit, the Secretary must have regard to the welfare of any relevant fishery or aquatic ecosystem.
(3) The Secretary—

(a) must not issue a permit if the Secretary considers that—
(i) the applicant does not satisfy the relevant eligibility criteria; or

(ii)
inconsistent with the relevant
management plan or if there is no
relevant management plan, would
be harmful to the welfare of any
the issue of the permit would be ecosystem;

(iii)
other than a scientific, research,
fisheries management, aquaculture
the permit is sought for a purpose regulations;

(b)

may refuse to issue a permit if the applicant has been convicted of an offence under this Act, the Fisheries
Act 1968, the Catchment and Land
Protection Act 1994, the Vermin and
Noxious Weeds Act 1958, the Wildlife

Fisheries (Further Amendment) Act 1997

s. 14	Act No. 5/1997
Act 1975 or the Flora and Fauna Guarantee Act 1988 or a law of the Commonwealth or of another State or of a Territory that corresponds to any of those Acts.

(4) If a person kept a noxious aquatic species immediately before the commencement of this section, the person may continue to keep
it—

(a)

if the person does not apply for a permit within 90 days after that commencement, until the end of that period of 90 days; or

(b)

if the person applies for that permit during that period, until the application is determined.
(5) A permit—

(a)

unless revoked, continues in force for a period not exceeding 3 years as is specified in the permit by the Secretary; and

(b)

applies to the category of noxious aquatic species specified in the permit; and
(c) is not transferable.
(6) A permit is not renewable, but the Secretary may issue another permit to a person whose permit is about to expire or who has

previously held a permit.".

14. Change concerning the revocation of a noxious aquatic species permit
For section 82(1) of the Fisheries Act 1995 substitute—

Fisheries (Further Amendment) Act 1997

Act No. 5/1997 s. 15
"(1) The Secretary may revoke a noxious aquatic species permit at any time by serving notice of the revocation on the holder of the
permit.".

15. Substitution of section 87
For section 87 of the Fisheries Act 1995
substitute—
"87. No penalty if noxious aquatic species
specimen is killed immediately
Despite anything to the contrary in this
Division, if a person who takes any thing
that is declared to be a noxious aquatic
species immediately kills it, the person is not
liable to any penalty under this Division.".

16. Changes to the functions of the Fisheries Co- Management Council
In section 91 of the Fisheries Act 1995—

(a)

in paragraph (f), for "angling" substitute "recreational fishery";

(b)

after paragraph (f) insert— "(fa) to prepare, publicise and distribute
codes of practice that provide guidance
to the holders of fishery licences or
permits under this Act on best practice
concerning any matter relevant to the
holders of fishery licences or permits;

(fb) to publicise and distribute such codes

of practice that have been prepared by a
recognised peak body or a fishery
committee;".

Fisheries (Further Amendment) Act 1997

s. 17

Act No. 5/1997

17. Repeal of fishery bodies corporate and code of practice provisions
Sections 35(3), 96, 97, 98, 99 and 100 of the
Fisheries Act 1995 are repealed.

18. Minor changes concerning enforcement
In the Fisheries Act 1995—

(a)

in section 102(2)(h), after "taking," insert "receiving, aquaculture,";

(b)

in section 104(5), for "7 days" substitute "14 days".

19. Changes concerning use of explosives and substances
For section 112 of the Fisheries Act 1995
substitute—
'112. Use of explosives, poisons, substances or

equipment for fishing

(1) Unless authorised under this Act or under any other Act, a person must not use, or
attempt to use, any explosive in Victorian

waters.
Penalty: 100 penalty units or imprisonment
for 6 months or both.
(2) Unless authorised under this Act or under
any other Act, a person must not use, or attempt to use, any poison, substance or equipment in Victorian waters if the use of
the poison, substance or equipment can
reasonably be expected to result in—

(a)

the taking or killing of any fish, fishing bait or protected aquatic biota; or

Fisheries (Further Amendment) Act 1997

Act No. 5/1997 s. 20

(b)

damage to the habitat of any fish, fishing bait or protected aquatic biota.

Penalty: 100 penalty units or imprisonment
for 6 months or both.
(3) If a court finds a person guilty of an offence

against this section, the court may, in
addition to any other penalty imposed by it,
order the person to pay compensation for any
damage or loss caused by the offence to any
person.

(4) In this section "poison" has the same

meaning as it has in the Drugs, Poisons and
Controlled Substances Act 1981.'.

20. Substitution of section 114
For section 114 of the Fisheries Act 1995 substitute—
"114. Prohibition on possession, sale or use of boats and equipment
(1) A regulation or fisheries notice may prohibit

the possession, sale or use of any specified
boats or equipment.

(2) A prohibition under sub-section (1)—
(a) may be absolute or conditional;

(b)

may apply in respect of any specified species of fish or fishing bait;

(c)

may apply to any waters or to specified waters or areas;

(d)

may apply for such period as is specified including—
(i) specified times of the day;

Fisheries (Further Amendment) Act 1997

s. 21

Act No. 5/1997

(ii)	specified periods of a week, month or year;
(iii)	specified periods of more than a year;

(e) may apply in respect of specified classes of fishery licences;
(f)
may apply either generally or in people or classes of people.

(3) A person must not contravene a prohibition under sub-section (1).

Penalty: 100 penalty units or imprisonment
for 6 months or both.".
21.  Change concerning unlawful interference with equipment
In section 115 of the Fisheries Act 1995, omit
"prescribed" (wherever occurring).
22.  Widening of court's ability to order removal of obstructions
In section 119(2) of the Fisheries Act 1995, for
"convicting a person" substitute "finding a person
guilty".
23.  Consequential amendment and repeal of redundant provision
In section 120 of the Fisheries Act 1995—

(a)

in sub-section (1), for "relevant commercial fishing licence" substitute "fishery licence (other than a recreational fishery licence)";

(b)

for sub-section (4) substitute— "(4) Sub-sections (1), (2) and (3) do not
apply if the person, relevant access

Fisheries (Further Amendment) Act 1997

Act No. 5/1997 s. 24
licence holder or nominee (as the case
may be) can prove—

(a)
was reasonably practicable to
that he or she did everything that be committed; and

(b)

that he or she did not in any way aid, aibet, counsel or procure the commission of the offence.".

24. Changes concerning simplification of proof

access licence that has entitlements
equivalent to those that applied to the
licence immediately before the relevant
appointed day;
(c) the holder of a declared abalone licence under section 13A or a new abalone licence under section 13B of the Fisheries Act 1968 is entitled to be issued with an access licence—

(i)
that authorises (in accordance a person approved by the Secretary to take abalone; and

(ii) that otherwise has entitlements
equivalent to those that applied to
the licence immediately before the
relevant appointed day;

(d) the holder of a bait licence under section 13 of the Fisheries Act 1968 is entitled to be issued with an access licence that has entitlements equivalent to those that applied to the licence immediately before the relevant appointed day;
(e) the holder of an abalone processor's licence or an abalone storer's licence under section 13 of the Fisheries Act 1968 is entitled to be issued with a fish
receiver's licence that has entitlements

Fisheries (Further Amendment) Act 1997

s. 45	Act No. 5/1997
equivalent to those that applied to the licence immediately before the relevant appointed day;

(f)
fisherman's licence or a master
fisherman's licence under section 13AA
of the Fisheries Act 1968 is entitled to
be issued with an access licence that
has entitlements equivalent to those that
the holder of a consolidated master before the relevant appointed day;

(g)
the holder of a fish-culture permit under entitled to be issued with an aquaculture licence—
(i) that has a duration of not more than 1 year; and

(ii) that otherwise has entitlements
equivalent to those that applied to
the permit immediately before the
relevant appointed day.

(h)
under section 13 of the Fisheries Act
1968 who was processing scallops
immediately before the relevant
the holder of a processor's licence with a fish receiver's licence that has entitlements equivalent to those that applied to the licence immediately before the relevant appointed day.

155B. Beneficial owners of abalone licences may
seek new licence
(1) The beneficial owner of a declared abalone licence under section 13A or a new abalone licence under section 13B of the Fisheries

Fisheries (Further Amendment) Act 1997

Act No. 5/1997 s. 45
Act 1968 may apply to the Secretary at least 90 days before the relevant appointed day to be issued on the appointed day with an
access licence—

(a) that authorises (in accordance with this Act) either the owner or a person approved by the Secretary to take abalone; and
(b)
that otherwise has entitlements licence immediately before the relevant appointed day.

(2) An application must be accompanied by—

(a) evidence in support of the claim of beneficial ownership; and
(b) any other information required by the Secretary.
(3) Upon receipt of an application, the Secretary must notify—
(a) the relevant licence holder; and

(b)

any holder of a prescribed financial interest registered under section 14A of the Fisheries Act 1968 of the application.

(4) The licence holder and each holder of a
days of receiving the notice advise the

prescribed financial interest must within 30 disapproval of the proposed issue of an access licence to the beneficial owner.

Fisheries (Further Amendment) Act 1997

s. 45

Act No. 5/1997

(5) If a person does not give the Secretary the

advice required by sub-section (4) within the
30 days, the person is deemed to have
disapproved of the proposed issue of that
licence to the beneficial owner.

(6) If the licence holder and all the holders of a

prescribed financial interest in the licence
have not approved of the proposed issue of
an access licence, the Secretary must not
grant the application by the beneficial owner.

(7) The Secretary may refuse to grant an application if—

(a)

the claimed beneficial ownership is not bona fide; or

(b)

the applicant is not a fit and proper person; or

(c)

if the applicant is a corporation, the applicant's nominee or any person in effective control of the corporation is not a fit and proper person.
(8) In considering an application, the
Secretary—

(a) may refer the matter to the Commercial Fisheries Licensing Panel for advice; and
(b) must have regard to any recommendations made by the Panel.
(9) The Secretary must not issue a licence or

permit under this section unless the Secretary
is satisfied that—

(a)

the holder or beneficial owner of the licence or permit satisfies the requirements of this section; and

Fisheries (Further Amendment) Act 1997

Act No. 5/1997 s. 45

(b) the issue of the licence or permit is consistent with the requirements of this section.

(10) Despite anything to the contrary in section 155A(c) and sub-section (1), the Secretary may only issue one access licence in respect
of each declared abalone licence under
section 13A and each new abalone licence
under section 13B of the Fisheries Act 1968.

(11) If—

(a)

more than one person who is entitled to, or who is entitled to apply for the issue of, a licence under this section applies for the licence; and

(b)

they do not agree as to who the licence should be issued—
the Secretary must issue the licence to the
licence holder pending the resolution of the
dispute.

155C. Transitional regulations
Regulations under this Act may include
savings, transitional or consequential
provisions to facilitate the operation of this
Part and the transition from the Fisheries
Act 1968 to the Fisheries Act 1995.

155D. Right to licence lapses if licence not
renewed
A failure to renew any replacement licence issued under this Part within 30 days of the licence expiring extinguishes any rights a
person may have under this Part in respect of
the licence.".

Fisheries (Further Amendment) Act 1997

s. 46

Act No. 5/1997

46. Substitution of section 157
For section 157 of the Fisheries Act 1995 substitute—
"157. Transitional provision—sections 13A, 13AA and 13C of the Fisheries Act 1968
Despite the repeal of the Fisheries Act 1968, and without limiting section 155(2)—

(a) sections 13AA(2), (5), (6), (8), (9), (10), (14), (15) and (16) of the Fisheries Act 1968 continue to apply to a fishery affected by those sections until a Ministerial direction applicable to that fishery is made; and
(b)
(5), (6), (7), (8) and (9) of the Fisheries
sections 13A(1) and 13C(1), (3), (4), abalone fishery until an order applicable to that fishery is made under section 64.".

47. Other changes to transitional provisions
(1) In section 158(1) of the Fisheries Act 1995—

(a) omit "a commercial fishing licence or";
(b) paragraph (a) is repealed.

(2) In section 159 of the Fisheries Act 1995—

(a) after "fees" insert ", levies";
(b) omit "the issue or renewal of".

Fisheries (Further Amendment) Act 1997

Act No. 5/1997 s. 48

48. Insertion of section 158A
After section 158 of the Fisheries Act 1995 insert—
"158A. Transitional provision—issue of licences
(1) This section applies to any licence issued to a person under this Act to replace a licence held by the person under the Fisheries Act 1968.
(2) Despite anything to the contrary in this Act

or the Fisheries Act 1968, the licence
continues in force for the period specified on
the licence by the Secretary, which must not
be a period of more than 1 year.".

49. Minor amendment
For section 162(3) of the Fisheries Act 1995
substitute—
"(3) In Schedule 1 of the Conservation, Forests
and Lands Act 1987, after "Fisheries Act
1968" insert "Fisheries Act 1995".

50. Minor and consequential amendments
(1) In the Fisheries Act 1995—
(a) in section 5—
(i) in sub-section (1)(a), for "taxa" substitute "species";
(ii) in sub-sections (1)(f) and (2), for "taxon" substitute "species";

(b)

in section 6, for "taxon" substitute "species";

(c)

in section 10(2)(a), for "fishing" substitute "fishery";

Fisheries (Further Amendment) Act 1997

s. 50

Act No. 5/1997

(d)

in section 20(1), omit "and the regulations and any fisheries notices";

(e)

in section 22(3), omit ", limitations, restrictions and endorsements";

(f)

in section 22(4), for "endorse" substitute "vary";
(g) in section 22(5)—
(i) for "an endorsement" substitute "a variation";

(ii) for "the endorsement" (wherever
occurring) substitute "the variation";

(h)

in section 23(b)(i), omit "or an endorsement of a licence or permit";
(i) in section 72(1), omit "and the regulations";

(j) in section 72(3)(a)(i), for "any prescribed" substitute "the relevant";
(k) in section 83(1), for "an established" substitute "a";
(l)

(m) in section 101(1)—
in section 85(2), for "regulated noxious "any";

(i) omit "declared" (wherever occurring); (ii) in paragraph (c), omit "or any kind or";
(n) in section 102(2)—
(i) in paragraphs (a) and (h), omit "declared";
(ii) in paragraphs (e) and (g), omit "prohibited";

(o)

in section 102(6)(a), for "by the regulations" substitute "by this Act";

Fisheries (Further Amendment) Act 1997

Act No. 5/1997 s. 50

(p) in sections 103(3)(b) and 105(1)(b), omit "declared";
(q) in sections 142(1)(a) and (b), omit "or the regulations";
(r) in section 143(2)(f), for "63 or 64" substitute "67".
(s)
in section 154(3)(b), after "notice," insert Arrangement,";
(t) in section 156—
(i) for "section 155(5)" substitute "section 155B";
(ii) for "section 155, other than a decision to which sub-section (1) applies" substitute "section 155A";

(u) in section 158, for "section 155" (wherever occurring) substitute "section 155A".

(2) For section 5(4) of the Fisheries Act 1995

substitute—
"(4) A reference in this Act to fish may be made

by reference to the species, geographical
location, number, weight or other description
or classification of the fish.".
(3) For sections 22(6) and (7) of the Fisheries Act

1995 substitute—
"(6) Subject to sections 25(1)(b) and (c), on a

fishery becoming a Joint Authority fishery, Ministerial direction that applies to the fishery under this Act ceases to apply to the fishery.
any regulation, fisheries notice, Order in

Fisheries (Further Amendment) Act 1997

s. 51

Act No. 5/1997

(7) This section does not empower a Joint
Authority to grant or to take any other action in respect of a licence in respect of a foreign boat.".

51. Insertion of Schedule 3
After Schedule 2 of the Fisheries Act 1995 insert—

"SCHEDULE 3

Regulation-Making Powers

1. Fishing activities
1.1 Prohibiting or regulating the taking, receiving, handling,
keeping, possession, landing, processing, storage, transporting, distribution, preparation, marketing, presentation and sale of fish, fishing bait, protected aquatic
biota or noxious aquatic species.
1.2 The orderly fishing and preservation of good order and safety among fishers in Victorian waters.
1.3 Prohibiting or regulating methods for taking fish.
1.4 Prescribing catch limits.
1.5 Prescribing restrictions as to size or other characteristics of
fish.
1.6 Regulating fishing competitions.
1.7 Requiring the provision of reports in relation to any activity prohibited or regulated by this Act.
1.8 Prohibiting or regulating the marking, branding or tagging
of fish.
1.9 Prohibiting or regulating the mutilation of, interference

with, shucking of, removal of eggs from, removal of shells
from or fin clipping of fish.

1.10 Prohibiting or regulating berleying and the use of substances
as berley.

Fisheries (Further Amendment) Act 1997

Act No. 5/1997 s. 51

2. Measurements
2.1 Prescribing methods for measuring the size, weight, length,

number or value of any fish (either before, during or after
processing).

2.2 Prescribing methods for equating the quantity, size, weight, length, number or value of fish (or parts of fish) in one form (for example, unprocessed fish) to the quantity, size, weight, length, number or value of fish (or parts of fish) in a

different form (for example, processed fish).

2.3 Prescribing methods for measuring boats and equipment and parts of boats and equipment.
2.4 Regulating the weighing of fish.

3. Licences and permits
3.1 Creating new categories of fishery licences authorising the

holders of the licences to carry out specified activities
relating to specified fish or fisheries.

3.2 Creating new categories of licences and permits authorising

the holders of the licences or permits to do anything else
regulated by this Act.

3.3 Creating, modifying or revoking classes of licences and permits within categories of licences and permits.
3.4 Prescribing procedures and conditions for the issue of new licences whether upon application or by public tender.
3.5 Prescribing the maximum number of licences of a particular

type that may be issued in respect of a particular fishery or
activity.

3.6 Prescribing the maximum number of licences of a particular class or in respect of a particular fishery or activity that may be held by the same person.
3.7 Prescribing which classes of licences are transferable or

renewable and which are not (where this is not dealt with by
this Act).

3.8 Prescribing procedures and conditions for the transfer or

renewal of licences and permits that are transferable or
renewable.

Fisheries (Further Amendment) Act 1997

s. 51

Act No. 5/1997

3.9 Prescribing grounds for the refusal of the issue or variation of licences and permits and for the refusal of the transfer or renewal of licences and permits that are transferable or
renewable.
3.10 Prohibiting or regulating the granting of fishery licences to
corporations.
3.11 Prescribing eligibility criteria in respect of licences and permits, including requirements where the applicant or holder is a corporation relating to the corporation, people in
effective control of the corporation or nominees of the
corporation.
3.12 Prescribing the maximum duration of different categories or

classes of licences and permits where that duration is not
specified by this Act.

3.13 Prescribing conditions to which licences or permits are
subject.
3.14 Prohibiting or regulating the possession and use of equipment by, and other activities of, the holders of specified classes of licences or permits.
3.15 Prohibiting or regulating the use by the holders of licences

of assistance by other people in undertaking any activity
permitted by the licence, and who may provide that
assistance.

3.16 Regulating the activities of agents of licence and permit holders while acting as agents.

3.17 Reducing the number of licences or permits that are held in
respect of a fishery.
3.18 Requiring bonds (or similar financial assurances) as a pre- condition to the issuing of an aquaculture licence to ensure that the area to be used under the licence is restored to a

specified state after the expiry of the licence.

4. Boats and Equipment
4.1 Providing for the registration of boats and the transfer and renewal of the registration of boats.
4.2 Prescribing equipment to be installed in or carried on fishing boats for the handling or storage of fish.
4.3 Prohibiting or regulating boats having on board commercial

fishing equipment while in Victorian waters closed to the
use of such equipment.

Fisheries (Further Amendment) Act 1997

Act No. 5/1997 s. 51
4.4 Prohibiting or regulating the use of boats or equipment for the taking or landing of fish, fishing bait, protected aquatic biota or noxious aquatic species for sale and prescribing the type of identification or marking required on such boats or
equipment.
4.5 Prohibiting or regulating the use, possession or sale of

specified fishing or aquaculture equipment and prescribing
specifications for such equipment.

4.6 Defining fishing or aquaculture equipment for the purposes of this Act and prescribing its use.
4.7 Regulating the use of charter boats for recreational fishing or the non-consumptive use of fish (including the licensing of such boats or their operators).
4.8 Prohibiting or regulating the transfer of boats and equipment

between licence or permit holders (including transfer
provisions intended to reduce the quantity of equipment in
use).

4.9 Prohibiting or regulating the marking of aquaculture equipment within specified areas.
4.10 Prohibiting or regulating the leaving, setting or removal of commercial fishing equipment and commercial aquaculture equipment.

5. Fees
5.1 Prescribing fees for applications, the issue or holding of

licences and permits and the variation, transfer or renewal of
(where permitted) licences and permits (including fees that
are to be determined by reference to the value or price of a
licence or permit (for example a transfer fee that is to be a
specified percentage of the price of a licence)).

5.2 Prescribing fees for the registration, transfer and renewal of

registration of boats and equipment used to take fish or
fishing bait.

5.3 Prescribing fees for the taking of fish from charter or hire
boats.
5.4 Prescribing fees to be charged for the inspection of live fish
being introduced into Victoria and for other services
rendered by authorised officers.
5.5 Prescribing fees for the use of agents by the holders of
licences in undertaking any activity permitted by the
licence.

Fisheries (Further Amendment) Act 1997

s. 51

Act No. 5/1997

5.6 Prescribing fees for the transfer of individual quota units (including for forfeited individual quota units).
5.7 Prescribing fees in respect of tenders.
5.8 Prescribing fees for the maintenance of aquaculture zones
and facilities.
5.9 Regulating the fees that the owners or occupiers of

privately-owned land may charge people to angle or fish on
that land.

6. Miscellaneous matters
6.1 Declaring a fishery to be a developing fishery and prohibiting or regulating fishing activities in that fishery.
6.2 Prescribing criteria for the declaration of any protected
aquatic biota.
6.3 Prohibiting or regulating the bringing of specified classes of fish, fishing bait, protected aquatic biota or noxious aquatic species into Victoria, the disposal of water used for such
purposes and the disposal of refuse from fish or noxious
aquatic species.
6.4 Providing for the marking of the boundaries of areas held

under licences or permits, the regular inspection of such
areas and prohibiting or regulating the erection,
construction, maintenance, protection and regulation of
boundary beacons, buoys, posts, stakes or other marks.

6.5 Prohibiting or regulating aquaculture activities.
6.6 Prohibiting or regulating the release of live fish or live fishing bait into any waters.
6.7 Prescribing any thing required to support the operation of a
quota order.

Fisheries (Further Amendment) Act 1997

Act No. 5/1997 s. 51

7. Administrative matters
7.1 Prescribing notices, signs and documents, including forms,

dockets and tags, for the purposes of this Act and
prohibiting or regulating the use, possession, interference
with, defacement, alteration, or mutilation of such notices,
signs or documents.

7.2 Requiring the keeping of records and the furnishing of
returns and information by the holders of licences, permits or other authorities under this Act or by other people who handle fish or fishing bait.
7.3 Requiring people who possess more than a specified quantity of fish to have specified documents in their possession.
7.4 Prescribing the form of and procedures for the issue of licences and permits.

7.5 Prescribing persons or classes of persons who may be

authorised by the Secretary to issue specified classes of
recreational fishery licences.

7.6 Prescribing forms.

8. General
8.1 Prescribing offences the penalties for which do not include cancellation of the relevant licence or permit.

8.2 Exempting a person from the need to hold a licence, permit
or authority under this Act.

═══════════════
Fisheries (Further Amendment) Act 1997

Notes

Act No. 5/1997

NOTES

†
Minister's second reading speech—
Legislative Assembly: 5 December 1996
Legislative Council: 2 April 1997
The long title for the Bill for this Act was "to amend the Fisheries Act
1995 and for other purposes."

Actions

Download as PDF Download as Word Document

Citations

Untitled document

Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

0

1.	Purpose	1
2.	Commencement	2
3.	Change to the forced commencement date	2
4.	Changes to definitions	2
5.	Change to the definition of "fishery"	9
6.	Insertion of section 7A	10

8.	Clarification concerning the contents of management plans	12
9.	Substitution of Part 4	12
PART 4—REGULATION OF FISHERIES	12
Division 1—Offences, Licences, General Permits and
Authorisations	12

36.	Offences relating to commercial fishing activities	12
37.	Offences relating to commercial abalone equipment	13
38.	Access licences	14
39.	Restrictions concerning access licences	16
40.	Offence to receive, consign etc. any fish	17
41.	Fish receivers' licences	18
42.	Offences relating to aquaculture and live fish etc.	18
43.	Aquaculture licences	19
44.	Offences relating to recreational fishing	20
45.	Recreational fishery licences	21
46.	Group recreational fishery licence	22
47.	Recreational fishing that does not require a licence	23
48.	Delayed implementation of prohibition on unlicensed
recreational fishing in marine waters	23
49.	General permit	24
50.	Special provisions concerning general permits for
developing fisheries	25
50A.	Licence does not confer automatic rights on water
authority property	25

51.	Issue of fishery licences	26
52.	Conditions of fishery licences and permits	28
53.	Offence to fail to comply with licence or permit
conditions	28
54.	Changes to licence or permit conditions	29
55.	Variations of licences and permits by regulation	30
56.	Licence transfers and renewals etc.	31
57.	Certain licences may be renewed	33
58.	Powers of Secretary in respect of fishery licences	35
59.	Registration of financial interests	36
60.	Cancellation of transferable licence	38

61.	Minister may issue directions	39
62.	Minister must consult before giving direction	40
63.	Compensation arising from the cancellation of access
licences under section 62	40
64.	Quota orders	41
65.	Individual quota	43
66.	Offences in relation to individual quota	44

67.	Fishing closures	47
68.	Prohibition to prevail	48
68A.	Offences in relation to size and catch limits	49

10.	Changes concerning protected aquatic biota permits	51
11.	Substitution of sections 74 and 75	52

21.	Change concerning unlawful interference with equipment	59
22.	Widening of court's ability to order removal of obstructions	59
23.	Consequential amendment and repeal of redundant provision	59
24.	Changes concerning simplification of proof	60
25.	Insertion of section 123A	62

26.	Changes concerning evidence of locality	62
27.	Substitution of section 126	63

47.	Other changes to transitional provisions	81
48.	Insertion of section 158A	81

49.	Minor amendment	82
50.	Minor and consequential amendments	82
51.	Insertion of Schedule 3	85
SCHEDULE 3	85

(b)	the system of declaring fisheries under that Act; and
(c)	the manner of declaring noxious aquatic species.

Act No. 5/1997	s. 4
underwater breathing apparatus, knife, probe, lever, iron or bar;';

(b)	any electrical or sonar device that is designed for use, or that is capable of being used, for or in connection with the taking of fish;
(c)	any other device or mechanical thing that is designed for use, or that is capable of being used, for or in connection with the taking of
fish (including any tipper used in connection with a scallop dredge);

(e)	any drop line or fishing line left fixed or set in water (including fishing lines, hooks and snoods designed to be fixed or set but not
yet fixed or set) whether or not the line, hook or snood is fixed or set from the shore or from a buoy or other object, but not including handlines, rods and reels that are being used by a recreational fisher in accordance with this Act;

Act No. 5/1997	s. 4
renewable licences and that the regulations, or a Ministerial direction, define as a developing fishery;

(k)	in the definition of "individual quota", for "for a quota managed fishery under section 53(2)(e)" substitute "by a quota order";
(l)

Act No. 5/1997	s. 4
(b)	any other species of fish that the regulations state are a priority species;';

(c)	any other grouping of organisms (for example, by physical or physiological characteristics, size, sex, age,
geographical location, form (for example whether domesticated or not), colour, race, variety or by any combination of these factors).'.

(a)	the fish, fishing bait or protected aquatic biota is not killed or put into any container; and
(b)	all reasonable steps are immediately taken to return the fish, fishing bait or protected aquatic biota to its natural habitat with the least possible injury or damage.".

(a)	is acting on behalf of the holder of an access licence who is authorised to do that thing; and
(b)	is authorised by that access licence to do that thing; and
(c)	is not prohibited by this Act from so acting.

(e)	do anything else relating to the taking of fish or fishing bait specified by the regulations;
(f)	use a boat to do anything authorised under paragraph (a), (b), (c), (d) or (e);
(g)	engage one or more people to do one or more of the things listed in this sub- section.

(a)	despite anything to the contrary in this Act, the benefit of the licence is deemed to be an asset of the estate of the deceased;
(b)	the personal representative of the deceased is deemed to be the holder of the licence until it is transferred from the personal representative to an eligible person in accordance with this Act;

(c)	subject to paragraph (d), the licence must be transferred to an eligible person in accordance with section 56 within 1 year of the grant of probate or letters of administration or within 2 years of the date of the death of the deceased, whichever is the earlier;
(d)	the Secretary, on the recommendation of the Commercial Fisheries Licensing Panel, may grant an application by the personal representative for an extension
of the period under paragraph (c) for a further period not exceeding 1 year.

(b)	the licence permits the holder to use the services of that person and states the name of the person on the licence.
Penalty:	200 penalty units or 12 months imprisonment or both.

(b)	is authorised by that fish receiver's licence to do that thing; and
(c)	is not prohibited by this Act from so acting.

(3) A fish receiver's licence continues in force	for the period specified in the licence by the suspended under this Act.
42.	Offences relating to aquaculture and live fish etc.

(a)	is acting on behalf of the holder of an aquaculture licence who is authorised to do that thing; and
(b)	is authorised by that aquaculture licence to do that thing; and
(c)	is not prohibited by this Act from so acting.

(a)	use, form or create a habitat (whether natural, artificial or partly natural or artificial) in a specified area for hatching, rearing, breeding, displaying or growing specified fish or fishing bait for sale or other commercial purposes;
(b)	hatch, rear, breed, display or grow specified fish or fishing bait for sale or other commercial purposes;
(c)	use specified commercial aquaculture equipment or use commercial aquaculture equipment generally.

(a)	take or attempt to take fish from inland waters; or
(b)	take or attempt to take rock lobster from marine waters; or
(c)	subject to section 48, take or attempt to take fish other than rock lobster from marine waters; or