Untitled document

Fisheries (Amendment) Act 2000

Act No. 80/2000

TABLE OF PROVISIONS

Section Page

1.	Purposes	1
2.	Commencement	2
3.	Amendment to definitions	2
4.	Exemption if authorised under general permit	3
5.	Special provision concerning general permits	3
6.	Variation to class of licence conditions	4
7.	Notice given to holders of financial interests	5
8.	Insertion of section 60A	5

60A.	Removal notice on cancellation or expiry of aquaculture
licence 5

9. Substitution of sections 64 and 65 7

64.	Initial quota order	7
64A.	Further quota order	8
64B.	General quota order provisions	9
64C.	Saving provision—existing quota orders	9
65.	Quota notices	10
65A.	Transfer of individual quota units	10

10.	Offences in relation to abalone etc.	11
11.	Insertion of sections 108A and 108B	12
108A. Retention notices	13

108B. Evidentiary provisions relating to retention notices 14

12. Insertion of section 110A 14

110A.	Authorised officers do not commit offences in certain
circumstances 15

13.      Prohibition to possess certain fish or equipment or engage in

certain activities 15

14.

Insertion of sections 130A and 130B 16

130A.	Further prohibition court order	16
130B.	Prohibition to be in or on specified waters	17

15.

Reviewable decision to refuse approval to transfer quota units 18

16.

Conditions of licence to be made available for inspection 19

17.

Amendment to secrecy provision 19

18.

Levy 19

19.

Insertion of sections 151B and 151C 19

151B.	Recreational Fishing Licence Trust Account	19
151C.	Fisheries Revenue Allocation Committee	21

i

Section Page

20.	Amendment to Schedule 1	22
21.	Regulation of vessel monitoring systems	22
22.	Repeal of saving provision	22

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ENDNOTES 23

ii

Victoria

No. 80 of 2000

Fisheries (Amendment) Act 2000†

[Assented to 28 November 2000]

The Parliament of Victoria enacts as follows:

1. Purposes

The main purposes of this Act are—

(a)	to provide for the variation of classes of fishery licences; and
(b)	to provide for the permanent transfer of quota units; and
(c)	to enable the Secretary to issue removal and retention notices; and
(d)	to enable a court to prohibit offenders from being in or on certain Victorian waters; and

Fisheries (Amendment) Act 2000

Act No. 80/2000 s. 2

(e)	to establish the Recreational Fishing Licence Trust Account and the Fisheries Revenue Allocation Committee; and
(f)	to make other amendments to the Fisheries Act 1995.

2. Commencement

(1) This Act (other than sections 9 and 22) comes into

operation on the day after the day on which it

receives the Royal Assent.

(2) Sections 9 and 22 come into operation on a day or

days to be proclaimed.

(3) If section 9 does not come into operation before
1 April 2002, it comes into operation on that day.
(4) If section 22 does not come into operation before

1 April 2003, it comes into operation on that day.

3. Amendment to definitions

See:

In section 4(1) of the Fisheries Act 1995— Act No. 92/1995.

(a) in the definition of "quota order", after	Reprint No. 1
"section 64" insert "or section 64A";	as at 1 April 1998
(b) insert—	and
amending
Act Nos
' "quota fishery" means a fishery, or a specified zone or zones of a fishery,	46/1998 and
76/1998.

that is the subject of a declaration under	LawToday:
section 64(1)(a);	dpc.vic. gov.au

"vessel monitoring system" means a

navigational measuring system that is suitable for installation on a boat and that is capable of—

(a) determining the location and
activities of the boat; and

Fisheries (Amendment) Act 2000

s. 4 Act No. 80/2000

(b)	transmitting data in relation to that location and those activities to the Secretary or the Secretary's
delegate via a satellite communication system;'.

4. Exemption if authorised under general permit

After section 42(2) of the Fisheries Act 1995 insert—

"(2A) A person may do any of the things referred

to in sub-section (1) for commercial
purposes (other than for sale) if he or she—

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

5. Special provision concerning general permits

After section 49(2)(f) of the Fisheries Act 1995 insert—

"; or

(g) for commercial purposes (other than for sale)—

(i)  to use, form or create a habitat (whether natural, artificial or partly natural or artificial) for hatching, rearing, breeding, displaying or growing fish or fishing bait;

(ii)  to hatch, rear, breed, display or grow fish or fishing bait.".

Fisheries (Amendment) Act 2000

Act No. 80/2000 s. 6

6. Variation to class of licence conditions

(1) After section 54(1)(b) of the Fisheries Act 1995

insert—

"; or

(c) vary a class of fishery licence; or

(d) vary or revoke a condition imposed by the Secretary or impose a new condition on a class of fishery licence.".

(2) After section 54(1) of the Fisheries Act 1995

insert—

"(1A) The Secretary may only exercise a power

conferred by sub-section (1)(c) or (d) to give
effect to a management plan declared under

section 28, or to any change to such a plan.".

(3) In section 54(3) of Fisheries Act 1995, for

"taking action under sub-section (2)(a)"
substitute "acting on the Secretary's own

initiative in respect of sub-section (1)(a) or (b)".

(4) After section 54(3) of the Fisheries Act 1995

insert—

"(3A) Before taking action under sub-section (1)(c) or (d), the Secretary must—

(a) relevant recognised peak body written

give the consultative body and the proposes to take and must consider any written submissions made by the consultative body or the relevant recognised peak body about the intended action within 28 days after the giving of the notice; and

(b) publish notice of the action that the Secretary proposes to take in a newspaper circulating generally in

Fisheries (Amendment) Act 2000

s. 7	Act No. 80/2000
Victoria within 5 days after giving the consultative body and the relevant recognised peak body written notice under paragraph (a).".

(5) In section 54(4) of the Fisheries Act 1995, for

"Sub-section (3) does" substitute "Sub-sections
(3) and (3A) do".

7. Notice given to holders of financial interests

(1) For section 59(3) of the Fisheries Act 1995

substitute—
"(3) The Secretary must notify each holder of a

registered financial interest of an

application—

(a) to transfer the licence; or

(b) to transfer individual quota units from the licence permanently—

within 21 days after receiving the
application.".

(2) In section 59(5) of the Fisheries Act 1995, after

"transfer the licence" insert "or permanently
transfer individual quota units, as the case may
be".

8. Insertion of section 60A

After section 60 of the Fisheries Act 1995 insert—

"60A. Removal notice on cancellation or expiry of

aquaculture licence

(1) This section applies if—

(a)	a person's aquaculture licence has expired or is cancelled; and
(b)	the aquaculture licence related to an area that is Crown land.

Fisheries (Amendment) Act 2000

Act No. 80/2000 s. 8

(2) The Secretary may, by notice in writing served on the person, require the person within any reasonable time specified in the

notice to remove any commercial
aquaculture equipment, fish, fishing bait or
aquatic flora specified in the notice from the
area to which the licence applied.

(3) A person who is served with a notice under

sub-section (2) must comply with the
requirements of the notice.

Penalty:  100 penalty units or 6 months
imprisonment or both.

(4) If a person has failed to comply with the requirements of the notice, the Secretary may at any reasonable time having regard to

all the circumstances—

(a)	enter upon any land or protected waters or any other premises other than a dwelling house for the purpose of searching for, or seizing and removing, any commercial aquaculture equipment, fish, fishing bait or aquatic flora specified in the notice; and
(b)	aquaculture equipment, fish, fishing

seize and remove any commercial notice.

(5) Any commercial aquaculture equipment,

fish, fishing bait or aquatic flora seized under
sub-section (3) may be disposed of as the

Secretary directs.

(6) All reasonable costs and expenses incurred
by the Secretary as a result of the failure of

Fisheries (Amendment) Act 2000

s. 9 Act No. 80/2000

the person to comply with the notice may be recovered from that person by the Secretary.

(7) If the whole or part of an amount payable under sub-section (6) has not been paid to the Secretary as required or the proceeds

from the sale of the seized things do not a debt in a court of competent jurisdiction.

meet the Secretary's costs and expenses, the

(8) After the payment of the Secretary's costs

and expenses, any proceeds remaining from the sale of the seized things must be paid to the person whose property they were at the time they were seized.".

9. Substitution of sections 64 and 65

For sections 64 and 65 of the Fisheries Act 1995
substitute—
"64. Initial quota order

(1) The Minister may, by order published in the Government Gazette—

(a)	declare that the whole, or a specified zone or zones, of a fishery is to be managed by the allocation of quotas;
(b)	determine the method for setting the number of individual quota units for the quota fishery;
(c)

determine the method for allocating issued in respect of the quota fishery;

(d) declare that individual quota units in the quota fishery may be transferred—

(i) permanently; or

Fisheries (Amendment) Act 2000

Act No. 80/2000 s. 9

(ii) for a quota period only;

(e)	set the minimum and maximum number of individual quota units that may be acquired or held by each licence holder;
(f)	determine the circumstances, if any, in which the individual quotas can be exceeded or carried over (other than by transfer).

(2) The Minister may revoke or amend an order

at any time by order published in the
Government Gazette.

(3) However, if the Minister makes a declaration under sub-section (1)(d)(i), the Minister may only amend that declaration or anything

under sub-section (1)(a), (b) or (c) if the

amendment is required—

(a) to give effect to the management plan for the quota fishery declared under section 28, or to any change to that plan; or

(b) to correct—

(i) a clerical mistake; or

(ii)  an error arising from an accidental slip or omission; or

(iii) a miscalculation of figures.

(4) If the Minister makes a declaration under sub-section (1)(d)(i), the holders of access licences may also transfer individual quota units for a quota period only.

64A. Further quota order

(1) The Minister may, by further order published in the Government Gazette—

Fisheries (Amendment) Act 2000

s. 9 Act No. 80/2000

(a)	set the total allowable catch (by number, volume, weight or value) for a specified period for a quota fishery;
(b)	determine the quantity of fish (by number, volume, weight or value) comprising an individual quota unit in a

quota fishery in a specified period.

(2) The Minister may revoke or amend an order

at any time by an order published in the
Government Gazette.

(3) Without intending to limit the generality of

sub-section (2), the Minister may reduce the total allowable catch, or reduce the quantity of fish comprising an individual quota unit
before the end of the period to which the

total allowable catch or unit applies.

64B. General quota order provisions

(1) The Minister must not make, revoke or

amend an order under section 64 or 64A
unless he or she has consulted with the
commercial peak body and any other
relevant consultative bodies and has
considered any comments made by those
bodies concerning the proposed

recommendation.

(2) In referring to a quantity of individual quota
units, an order under section 64 or 64A may

refer to fractions of an individual quota unit.

(3) An order has effect from the date it is

published in the Government Gazette, or
from any later date specified in the order as

the date it is to have effect from.

64C. Saving provision—existing quota orders

Any quota order or quota notice in existence immediately before section 9 of the

Fisheries (Amendment) Act 2000

Act No. 80/2000 s. 9

Fisheries (Amendment) Act 2000 came into operation is to continue in operation until the end of the quota period established

by the order as if section 9 had not come into

operation.

65. Quota notices

(1) The Secretary must give the holder of an

access licence in a quota fishery 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 in respect of a quota fishery for which individual quota units may only be temporarily transferred, 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) If the Secretary grants an application for a

transfer under section 65A, the Secretary
must issue new quota notices for each access
licence involved in the transfer or
acquisition.

(4) 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.

(5) If an individual quota no longer applies to a

licence in a quota period, the quota notice
required by sub-section (3) or (4) must state
that fact.

65A. Transfer of individual quota units
Fisheries (Amendment) Act 2000

s. 10 Act No. 80/2000

(1) A transfer of individual quota units may only be made with the approval of the Secretary.

(2) The holder of an access licence in a quota

fishery may apply to the Secretary for
approval to transfer a fraction of, or 1 or
more, individual quota units to the holder of
any other access licence for that fishery.

(3) An application for the approval of a transfer

must—

(a)	be made in the manner and form required by the Secretary; and
(b)	if applicable, be accompanied by the relevant quota notice or notices.

(4) The Secretary may grant an application if it

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

(5) The Secretary must refuse to grant an

application that is inconsistent with any

relevant provision of this Act.".

10. Offences in relation to abalone etc.

(1) For the penalty at the foot of section 68A(3) of the

Fisheries Act 1995 substitute—

"Penalty: 20 penalty units.".

(2) For section 68A(5) of the Fisheries Act 1995,

substitute—

"(4A) A person who takes or possesses—

(a) more than the catch limit for abalone; but

(b) not more than twice that catch limit—

Fisheries (Amendment) Act 2000

s. 10
s. 11

Act No. 80/2000

is guilty of an offence.
Penalty: 20 penalty units.

(4B) A person who takes or possesses more than twice the catch limit for abalone is guilty of an offence.

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.

(4C) It is a defence to a charge under sub-section

(2)(b), (3), (4A) or (4B) if the person
charged can prove that the fish were taken in
accordance with this Act.

(5) A person must not 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.

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.".

(3) In section 68A(7) of the Fisheries Act 1995, after

"section" (where secondly occurring) insert
"(other than an offence in respect of which an

infringement notice has been issued)".

11. Insertion of sections 108A and 108B

Fisheries (Amendment) Act 2000
Act No. 80/2000

After section 108 of the Fisheries Act 1995 insert—

"108A. Retention notices

(1) If an authorised officer or a member of the

that any thing has been taken or used in
contravention of this Act or a corresponding
law of another State or a Territory of the

police force believes on reasonable grounds issue the person holding or using the thing with a notice requiring the person to keep the thing in his or her possession and not to sell or dispose of the thing.

(2) A notice under sub-section (1)—

(a) must be in writing; and

(b)	must specify the thing to which the notice relates (including in the case of fish, the species and quantity); and
(c)

has effect for the period specified in the 90 days from the issue of the notice); and

(d)	may be cancelled by the person who issued the notice; and
(e)	is subject to any terms and conditions specified in the notice.

(3) If proceedings are commenced within the period specified in the notice against any person in relation to the thing to which the

notice relates, the Secretary may extend the
period for which a notice has effect under
sub-section (2).

Fisheries (Amendment) Act 2000

s. 11
s. 12

Act No. 80/2000

(4) If the Secretary extends the period for which

a notice has effect, the Secretary must,
before the expiry of the original extension—

(a)	notify the person to whom the notice is issued of the extension; and
(b)	specify in the notice the period for which the extension is to have effect.

(5) A person to whom a notice has been issued must comply with the notice.

Penalty:  100 penalty units or 6 months
imprisonment or both.

108B. Evidentiary provisions relating to retention

notices

(1) In any proceedings under section 108A,

evidence that a thing, specified in a notice
under that section as being in the possession
of a particular person or as being used by a
particular person, is no longer in the
possession of that person is evidence, and, in
the absence of evidence to the contrary, is
proof, that the person has not complied with
the notice.

(2) In any proceedings under this Act, the fact

that a thing is specified in a notice under
section 108A as being in the possession of a
particular person or as being used by a
particular person is evidence, and, in the
absence of evidence to the contrary, is proof,
that the thing was in the possession of that
person.".

12. Insertion of section 110A

Fisheries (Amendment) Act 2000
Act No. 80/2000

After section 110 of the Fisheries Act 1995 insert—

"110A. Authorised officers do not commit offences

in certain circumstances

(1) An act done by—

(a) an authorised officer; or

(b) a member of the police force—

which, but for this sub-section, would
constitute an offence against section 36, 37,
40, 42, 44, 67, 68A, 76, 111, 114 or 116 or
against the regulations, does not have that
consequence if the act is done under written
instructions given in relation to a particular

case by the Secretary.

(2) The Secretary must not give instructions to an authorised officer under sub-section (1) unless the Secretary is satisfied that the

authorised officer has the appropriate
training and experience to carry out the act
in respect of which the instructions are
given.

(3) Despite anything to the contrary in any Act,

the Secretary may not delegate any power
conferred or duty imposed by this section.".

13.  Prohibition to possess certain fish or equipment or engage in certain activities

For section 130(1)(d) of the Fisheries Act 1995
substitute—

"(d) being in possession of specified fishing

equipment or fish; or

(e) engaging in any activity authorised by a fishery licence unless the person has installed a vessel monitoring system and

Fisheries (Amendment) Act 2000

Act No. 80/2000 s. 14

complies with the prescribed conditions on

the use of the system.".

14. Insertion of sections 130A and 130B

After section 130 of the Fisheries Act 1995 insert—

"130A. Further prohibition court order

(1) This section applies if a person has been prohibited under a law of another State or engaging in specified fishing activity or being in the possession of specified fish or fishing equipment.

(2) A court may, on the application of the

Secretary, by order prohibit the person from engaging in the specified fishing activity or being in the possession of the specified fish or fishing equipment.

(3) A court must not make an order under sub- section (2) unless—

(a)

the application is accompanied by the order; and

(b) the court is satisfied that the person is likely to engage in the specified fishing activity or be in the possession of the specified fish or fishing equipment in Victoria.

(4) An order—

(a) may apply generally or at specified times or in specified circumstances;

Fisheries (Amendment) Act 2000

s. 14 Act No. 80/2000

(b) has effect for such a period as is specified in the order or, if no period is specified, until the order is rescinded;

(c) may be rescinded or varied at any time. (5) A person must comply with an order under

this section.

Penalty:  200 penalty units or imprisonment
for 12 months or both.

130B. Prohibition to be in or on specified waters

(1) This section applies if—

(a)	a court convicts a person of an offence against this Act that is punishable by imprisonment; and
(b)	convicted, on 2 or more separate occasions, of an offence against this

the person has been previously imprisonment.

(2) In addition to any other penalty the court

may impose, the court may, on the
application of the Secretary, by order
prohibit the person from being in or on
specified Victorian waters without a lawful
purpose.

(3) A court must not make an order under sub- section (2) unless—

(a)

the application is accompanied by the order; and

(b) the court is satisfied that the person is likely to commit further offences in or on the specified waters.

Fisheries (Amendment) Act 2000

Act No. 80/2000 s. 15

(4) An order—

(a)	may apply generally or at specified times or in specified circumstances;
(b)	has effect for a specified period of no more than 10 years or, if no period is specified, for no more than 10 years;

(c) may be rescinded or varied at any time. (5) In specifying the waters to which an order

applies, the court must, to the maximum
extent that is practicable having regard to the
purpose of the order, limit the specification

of the waters as much as possible.

(6) A person must comply with an order.

Penalty:  200 penalty units or imprisonment
for 12 months or both.

(7) In a prosecution for an offence against sub-

section (6), it is not necessary for the
prosecutor to prove that the person charged
was on or in the specified waters without a
lawful purpose—it is sufficient to prove that
the person was in or on those waters on the
relevant date.

(8) It is a defence to a charge under sub-section

(6) if the person charged gives, in the
opinion of the court, a satisfactory account as
to why he or she was on or in the specified
waters.".

15.  Reviewable decision to refuse approval to transfer quota units

In section 137 of the Fisheries Act 1995, after paragraph (h) insert—

Fisheries (Amendment) Act 2000

s. 16 Act No. 80/2000

"(ha) to refuse approval of a transfer of individual quota units under section 65A;".

16.  Conditions of licence to be made available for inspection

In section 145 of the Fisheries Act 1995, after licence".

"quota order" insert ", conditions imposed by the

17. Amendment to secrecy provision

In section 146(1) of the Fisheries Act 1995, after
paragraph (e) insert—

"(ea) a member of the Fisheries Revenue

Allocation Committee;".

18. Levy

In section 151 of the Fisheries Act 1995—

(a)	in sub-section (1), for "the prescribed rate of levy in respect of that prescribed class" substitute "prescribed levies at prescribed rates";
(b)	in sub-section (2), for "The prescribed rate" substitute "A prescribed rate";
(c)	in sub-sections (3) and (6), for "the levy" substitute "a levy";
(d)	in sub-section (4), for "The levy" substitute "A levy".

19. Insertion of sections 151B and 151C

After section 151A of the Fisheries Act 1995 insert—

"151B. Recreational Fishing Licence Trust

Account

Fisheries (Amendment) Act 2000

Act No. 80/2000 s. 19

(1) The Minister is to establish a trust account to

be called the Recreational Fishing Licence
Trust Account.

(2) Into the Account must be paid—

(a)

the levies and application fees received licences under this Act;

(b)	income from the investment of the Trust Account;
(c)	all other money authorised to be paid to the Trust Account by the Minister.

(3) The following may be paid out of the

Account—

(a)

amounts determined by the Minister for fishing;

(b)	the costs and expenses incurred in the administration of recreational fishing licences and the Fisheries Revenue
Allocation Committee established under section 151C.

(4) The Minister must cause a report on how

amounts paid into the Account were

disbursed—

(a)	to be prepared by 1 October each year; and
(b)	to be laid before each House of Parliament on or before the 7th sitting day of that House after the report has been prepared.

(5) The Minister may invest money standing to

the credit of the Account in any manner in
which trust funds may be invested under the
Trustee Act 1958.

Fisheries (Amendment) Act 2000

s. 19 Act No. 80/2000

151C. Fisheries Revenue Allocation Committee

(1) There is established a Committee called the Fisheries Revenue Allocation Committee.

(2) The function of the Committee is to provide any advice requested by the Minister on the priorities for the disbursement of funds from the Recreational Fishing Licence Trust

Account.

(3) The Committee consists of the following

6 members appointed by the Minister—

(a) Management Council or of a fishery
committee with knowledge of, and
experience in, recreational fishing

2 members of the Fisheries Co- Management Council;

(b) 2 people nominated by the Secretary;

(c) 2 people nominated by the recognised peak body for recreational fishing.

(4) The Minister must appoint one of the members to be the chairperson of the Committee.

(5) Schedule 1, other than clause 9, applies to

the membership and procedure of the
Committee.

(6) The 2 members of the Committee nominated

by the Fisheries Co-Management Council
may report the proceedings of the Committee
to the Fisheries Co-Management Council.".

Fisheries (Amendment) Act 2000

Act No. 80/2000 s. 20

20. Amendment to Schedule 1

In clause 1 in Schedule 1 to the Fisheries Act
1995, in the definition of "body", after

paragraph (b) insert—

"; or

(c) the Fisheries Revenue Allocation
Committee.".

21. Regulation of vessel monitoring systems

In Schedule 3 to the Fisheries Act 1995, after clause 4.10 insert—

"4.11 Requiring the installation and maintenance of vessel monitoring systems on boats and regulating the use of vessel monitoring

systems.".

22. Repeal of saving provision

Section 64C of the Fisheries Act 1995 is repealed.

═══════════════
Fisheries (Amendment) Act 2000

Endnotes Act No. 80/2000

ENDNOTES

†

Minister's second reading speech—

Legislative Assembly: 5 October 2000

Legislative Council: 14 November 2000

The long title for the Bill for this Act was "to amend the Fisheries Act
1995 and for other purposes."