Aquaculture Act 2001

The Act defines aquaculture as the farming of aquatic organisms for the purposes of trade or business or research, but excludes activities declared by regulation not to be aquaculture (section 3). Farming of aquatic organisms means an organised rearing process involving propagation, regular stocking or feeding, protection from predators, or other similar intervention in natural life cycles. Aquatic organisms include any species and their reproductive products and body parts. The Act creates aquaculture zones and aquaculture exclusion zones through aquaculture policies made under Part 4. These policies may also designate public call areas where applications for production leases may only be made following a public call (section 11(2)(b)). Ecologically sustainable development is defined in section 4: development that maintains natural resources to meet future generations’ needs, protects biological diversity and ecological processes, and avoids, remedies or mitigates adverse environmental effects. Decision-makers must integrate long-term and short-term economic, environmental, social and equity considerations, and where there are threats of serious or irreversible environmental harm, lack of full scientific certainty should not justify postponing measures to prevent that harm. The concept of a suitable person to hold a licence is introduced in section 4A: the Minister may consider offences against the Act or other laws relating to aquaculture, fishing or environment protection, cancellation or suspension of statutory authorisations, and the person’s financial and other capacity to comply with obligations. Leases are divided into classes (section 26): pilot leases (for trial operations, maximum aggregate term 5 years, not transferable, only the lessee may hold the corresponding licence), production leases (limited to aquaculture zones, term up to 30 years, renewable, transferable with Minister’s consent), research leases (term up to 5 years, renewable but not beyond the duration of a research project, not transferable), and emergency leases (6 months, renewable only for the period reasonably required for response or recovery, only the holder of the affected lease may hold it). A corresponding licence is an aquaculture licence in respect of all or part of a lease area authorising the same class of aquaculture as specified in the lease (section 3). The term of a corresponding licence is co-extensive with the lease and is renewed automatically on each renewal of the lease (section 22(2b)). Mandatory provisions in aquaculture policies create offences for contravention (section 16). Standard conditions prescribed by a policy apply to leases and licences whether granted before or after the policy and prevail over inconsistent conditions (section 11(3b)). The Minister must have regard to the objects of the Act in its administration (section 8(2)).

The Act directly affects any person or corporation that carries on aquaculture in South Australian waters, including State waters and coastal waters of the Commonwealth (section 6). This includes commercial aquaculture operators, research institutions, and those seeking to trial new aquaculture methods via pilot leases. Applicants for leases and licences must engage with the Minister, ATAB (for assessment of production lease applications, section 35(5) and section 36(1)), the EPA (which must approve certain matters referred under section 59), and the Minister responsible for the Harbors and Navigation Act 1993 (whose concurrence is required for leases, section 20). Lessees and licensees are subject to conditions, annual fees (section 53), and performance criteria. Directors of corporations face personal liability for certain offences where the corporation is guilty, under section 88: for sections 17 (carrying on aquaculture without licence), 58 (failing to comply with Minister’s direction to take action after suspension/cancellation), 58C (carrying out unauthorised aquaculture tourism development) and 58H(2) (failing to comply with Minister’s direction under tourism provisions) the director is liable to the same penalty unless they prove due diligence could not have prevented the offence. For sections 16 (contravening mandatory provisions in policies), 52 (contravening licence conditions) and 58D(7) (contravening aquaculture tourism development authorisation conditions), the director is liable if the prosecution proves the director knew or ought to have known of a significant risk of such an offence, was in a position to influence the corporation’s conduct, and failed to exercise due diligence to prevent it (section 88(1a)). The Act also affects persons holding interests in leases or licences who may have notations on the public register (section 80(2a)); such persons must receive notices of proceedings, proposed cancellations, variations and directions, and must consent to transfers, surrenders and variations that affect their interest (sections 25A(4), 25C(2), 39(1)(b), 55(3), 56(2)). Members of the public may make submissions on draft aquaculture policies (section 12(5)) and on applications for leases and licences (for example, section 28(1)(b)), and may inspect the public register (section 81). Tourism operators undertaking aquaculture tourism development under Part 7A are affected by the requirement for an aquaculture tourism development authorisation, compliance with conditions, and potential Ministerial directions to remove unauthorised development (section 58I). The Crown is bound (section 5) but cannot be prosecuted for an offence.

The central duty is in section 17: a person must not carry on aquaculture unless authorised by an aquaculture licence. The maximum penalty is $35,000. To obtain authorisation, an applicant must apply for a lease (if the area comprises State waters) and a corresponding licence (section 22(2a)). Applications must be in the manner and form required by the Minister, accompanied by fees, and the applicant must provide information verified by statutory declaration if required (section 22(3)). The Minister must be satisfied that the grant is consistent with the Act’s objects and prescribed criteria, and that the applicant is a suitable person (section 28(1)(a) for pilot leases; section 35(9)(a) for production leases in public call areas). Before granting, the Minister must publish public notice and consider submissions, and refer the matter to the EPA unless exempted (sections 28(1)(b) and (c), 35(9)(b) and (c)). There are rights for persons who made written submissions to request a written statement of reasons for the Minister’s decision (section 28(2), 35(11), 36(5), 39A(5), 50(5)). Licensees and lessees have a right of exclusive occupation of marked-off areas of their lease (section 45). The Minister may cancel a lease for non-commencement or cessation of aquaculture, failure to meet performance criteria, or non-payment (section 25B). Before cancellation, the Minister must give the lessee written notice allowing a reasonable opportunity to show cause. If a lease is cancelled or terminated, each corresponding licence is also terminated (section 25D). Licensees may apply for variation of licence conditions, but in some cases the Minister may vary conditions without consent for specified reasons including to prevent significant environmental harm (section 52(3)(c)). A person dissatisfied with certain adverse decisions (e.g. refusal to grant a licence, conditions imposed, suspension or cancellation) may apply to SACAT for review under section 60. However, there is no review right for an application in a public call area that was not determined to be a preferred application (section 60(2)). The general defence in section 89(1) applies to most offences: it is a defence if the defendant proves the offence was not committed intentionally and did not result from any failure to take reasonable care. This defence does not apply to a director charged under section 88 (section 89(2)). There is also a continuing offence provision: each day an act or omission continues may attract an additional penalty of up to one-tenth of the maximum (section 87).

The Act creates a range of penalties. The most serious is imprisonment for 2 years for taking or interfering with aquaculture stock or equipment within a marked-off area (section 47(1)). Entering a marked-off area with intent to commit such an offence carries a maximum of 1 year imprisonment (section 47(2)). Carrying on aquaculture without a licence (section 17), failing to comply with a Ministerial direction to take action or remove equipment/stock after lease cancellation (section 48A(2) and section 58(2)), and carrying out unauthorised aquaculture tourism development (section 58C) each carry a maximum penalty of $35,000. Contravening a mandatory provision of an aquaculture policy (section 16), contravening a licence condition (section 52(7)), and contravening a condition of an aquaculture tourism development authorisation (section 58D(7)) each attract a maximum penalty of $10,000 and an expiation fee of $1,000. Offensive behaviour and failing to provide name and address in a marked-off area carry penalties up to $1,250 (section 46). Directors of corporations may be liable to the same penalties as the corporation for certain offences (section 88). The court may order compensation for loss or damage caused by an offence against section 47(1) (section 47(3)). The Minister may also recover costs as a debt for taking action after non-compliance with a direction (sections 48A(3), 58(3), 58H(3), 58I(3)). Equipment or stock removed by the Minister is forfeited to the Crown and may be sold or disposed of (sections 48A(4), 58(4), 58H(4), 58I(5)). Enforcement is carried out by fisheries officers, who may exercise powers under the Fisheries Management Act 2007 for the purposes of this Act (section 82). The evidentiary provisions in section 90 assist prosecution by allowing Minister’s certificates, allegations in complaints, and statements by fisheries officers to be accepted as proof in the absence of contrary evidence. The Minister is also taken to be an administering agency under the Environment Protection Act 1993 for the general environmental duty and environment protection policies in relation to activities carried out under an aquaculture lease or licence, and may appoint fisheries officers as authorised officers for that purpose (section 82A).

Section 7(1) provides that the Act is in addition to and does not limit or derogate from any other Act. A specific carve-out appears in section 7(2): the Planning, Development and Infrastructure Act 2016 does not apply to development within the area of an emergency lease for carrying on activities authorised by a corresponding licence. Section 58B goes further for aquaculture tourism development under Part 7A: the Planning, Development and Infrastructure Act 2016 does not apply to such development at all, so building work for tourism in an aquaculture zone is regulated solely under the Aquaculture Act, subject to compliance with Building Rules as certified by a building certifier (section 58D(2)(a)). The Minister’s power to grant an aquaculture lease is subject to the requirement under section 15 of the Harbors and Navigation Act 1993 for the concurrence of the Minister responsible for that Act (section 20). Exceptions exist for substitution, amalgamation of leases, and emergency leases outside ports or harbors. The Act also interacts with the Environment Protection Act 1993 in several ways. Part 8 requires the Minister to refer specified matters to the EPA: granting licences (other than emergency licences), varying licence conditions (other than standard conditions), converting pilot leases to production leases (outside aquaculture zones), and granting or varying aquaculture tourism development authorisations (section 59). The EPA must determine its response having regard to the objects of the Environment Protection Act, the general environmental duty, and relevant environment protection policies (section 59(4)). If the EPA fails to respond within the prescribed period, it is deemed to have approved (section 59(7)). The Minister is also an administering agency under the Environment Protection Act for the general environmental duty and environment protection policies in relation to aquaculture activities (section 82A). The Act acknowledges specially protected areas: the Adelaide Dolphin Sanctuary, marine parks under the Marine Parks Act 2007, and River Murray Protection Areas under the River Murray Act 2003. An aquaculture policy that applies within a specially protected area must seek to further the objects and objectives of the relevant Act and relevant policies, and must contain prescribed criteria to that effect (section 11(3a)). The Minister must obtain the concurrence of the relevant Minister before approving a policy that will apply within a specially protected area (section 12(7a)). The Fisheries Management Act 2007 is incorporated by reference: fisheries officers’ powers and Part 8 Division 1 Subdivision 2 and Subdivision 5 of that Act are read into the Aquaculture Act (section 82). The South Australian Civil and Administrative Tribunal Act 2013 governs reviews under section 60. The Act expressly states that a right under it is not personal property for the purposes of the Personal Property Securities Act 2009 (Cth) (section 6A).

The Aquaculture Act 2001 (Act No. 66 of 2001) commenced on 1 July 2002 for most provisions, with sections 49, 50 and Part 10 Division 4 commencing on 11 November 2002. The Act has been amended by numerous subsequent enactments. The River Murray Act 2003 (Act 35 of 2003) inserted references to the Murray-Darling Basin and River Murray Protection Area. The Adelaide Dolphin Sanctuary Act 2005 (Act 5 of 2005) inserted the definition of Adelaide Dolphin Sanctuary and related provisions. The Fisheries Management Act 2007 (Act 4 of 2007) updated references to fisheries officers. The Marine Parks Act 2007 (Act 60 of 2007) inserted definitions of marine park, relevant Act and relevant Minister, and substituted section 11(3a) and section 12(7a)-(7b). The Statutes Amendment (Public Sector Consequential Amendments) Act 2009 (Act 84 of 2009) substituted section 68 (later deleted) and section 76. The Statutes Amendment (Personal Property Securities) Act 2011 (Act 11 of 2011) inserted section 6A. A major amendment came with the Aquaculture (Miscellaneous) Amendment Act 2012 (Act 27 of 2012), which commenced in two stages: Part 1 and Part 4 on 12 July 2012, and Part 2 and Parts 2 and 3 of Schedule 1 on 25 October 2012. This amendment significantly restructured the Act: it deleted development leases and created production leases, pilot leases, research leases and emergency leases; introduced the concept of a suitable person and the Minister’s assessment guidelines; established the public register and notation of interests; inserted provisions for variation, cancellation and surrender of leases; updated the ATAB membership; added Part 10A on compliance with general environmental duty; inserted confidentiality provisions; and made many other changes. Transitional provisions deemed existing development leases to be production leases and validated past grants. The Statutes Amendment (Directors' Liability) Act 2013 (Act 16 of 2013) substituted section 88 to create two tiers of director liability, and added section 89(2) excluding the general defence for directors. The Statutes Amendment (Boards and Committees - Abolition and Reform) Act 2015 (Act 8 of 2015) deleted Part 10 Division 2 (Aquaculture Advisory Committee) and abolished the Aquaculture Advisory Committee. The Statutes Amendment (Planning, Development and Infrastructure) Act 2017 (Act 5 of 2017) amended section 7(2) and section 12(3) to update references to the Planning, Development and Infrastructure Act 2016. The Statutes Amendment and Repeal (Simplify) Act 2017 (Act 7 of 2017) amended definitions of variation of licence conditions, updated section 12(5) and (5a) on advertisement, and amended sections 25A(3), 52(4) and 59. The Statutes Amendment (SACAT No. 2) Act 2017 (Act 51 of 2017) substituted Part 9 to replace review by the District Court with review by SACAT. The Statutes Amendment and Repeal (Simplify) Act 2019 (Act 25 of 2019) amended sections 25B(2), 28(1), 35(3) and (9), 36(3), 38(1), (1a) and (1b), 39A(3), 50(3) and 60(2). Most recently, the Aquaculture (Tourism Development) Amendment Act 2021 (Act 48 of 2021) inserted Part 7A (aquaculture tourism development), amended the long title, and made consequential amendments to sections 59, 60, 80, 82B and 88. Part 7A commenced on 9 December 2023 (two years after assent, as per section 27(6) of the Legislation Interpretation Act 2021).

The Act itself does not report specific cases, but it establishes a dedicated review mechanism under Part 9. Section 60 confers a right to apply to the South Australian Civil and Administrative Tribunal (SACAT) for review of certain decisions: refusal to grant a licence, conditions imposed on a licence, variation of licence conditions, refusal to consent to transfer or surrender, suspension or cancellation of a licence, decisions under Part 7A regarding aquaculture tourism development authorisations, tourism leases and tourism licences. An applicant who is dissatisfied with the Minister’s decision may apply within one month of receiving notice of the decision, or within a longer period allowed by the Tribunal (section 60(3)). If the applicant requested written reasons within one month, the time runs from receipt of those reasons (section 60(5)). The EPA’s response to a matter referred under Part 8 is taken to be a decision of the Minister, and the EPA’s reasons are taken to be the Minister’s reasons for the purpose of a review (section 60(6)). The EPA is a party to any such review (section 60(7)). However, there is no right of review for applications made in response to a public call for production leases if the application was not determined to be a preferred application (section 60(2)). The transitional provisions in the Statutes Amendment (SACAT No. 2) Act 2017 provided that rights to appeal to the Administrative and Disciplinary Division of the District Court that existed before 14 December 2017 are instead to be exercised before SACAT, and proceedings already commenced before the District Court were unaffected. The Act also includes evidentiary provisions that may affect litigation: section 90 allows Minister’s certificates to prove matters such as the holding of a lease or licence, conditions, and the fact that a person was a delegate. Allegations in a complaint about authorised person status, fisheries officer status, species characteristics and the like are proof in the absence of contrary evidence. A statement by a fisheries officer about whether an area was within a lease or licence area is accepted as proof. If aquatic organisms are proved to be present in a licence area, it is presumed they were being farmed for trade, business or research, in the absence of proof to the contrary (section 90(5)). The general defence in section 89(1) applies to offences except for directors charged under section 88. No specific case law is named in the Act.

Several provisions present traps for the unwary. The first is that an aquaculture licence or lease right is not personal property for the purposes of the Personal Property Securities Act 2009 (Cth) (section 6A). This means such rights cannot be used as PPSR-registered security in the ordinary way, and lenders relying on those rights as security must look to other mechanisms, including notations on the public register. Second, directors’ liability under section 88 is not a simple due diligence defence for all offences: for sections 17, 58, 58C and 58H(2), the director bears an evidential burden to prove due diligence, but for sections 16, 52(7) and 58D(7), the prosecution must prove the director knew or ought to have known of the risk and failed to exercise due diligence. However, the general defence in section 89 is expressly unavailable to a director charged under section 88 (section 89(2)). Third, pilot leases and research leases are not transferable (sections 30 and 39C), which limits exit strategies. Fourth, a production lease may not exceed 30 years (section 38(1)), and an extension under section 38(1a) can only be granted once and cannot prolong the term beyond 30 years from grant or renewal. Fifth, emergency leases are limited to six months and may only be held by the holder of the lease affected by the emergency (sections 43 and 44). Sixth, the automatic termination of corresponding licences on cancellation or termination of the lease (section 25D) means that any default under the lease has immediate consequences for the licence to operate. Seventh, the Minister may vary licence conditions without consent in a number of circumstances, including to prevent or mitigate significant environmental harm or the risk of it, and in consequence of contravention of the Act (section 52(3)(c)). There is a right to apply for review of such variations under section 60(1)(d)(i). Eighth, the EPA is deemed to approve a licence or variation if it fails to respond within the prescribed period (section 59(7)), which can create uncertainty. Ninth, the public register may contain notations of interests; a variation, transfer or surrender of a lease or licence may require the consent of the person noted (e.g. section 25A(4), 39(1)(b), 55(3), 56(2)). Tenth, a lessee who fails to remove equipment or stock on termination faces a direction under section 48A or 58; non-compliance is an offence with a $35,000 penalty and the Minister may recover removal costs as a debt, with equipment forfeited to the Crown. Eleventh, aquaculture tourism development under Part 7A has a specific definition that excludes activities prescribed by regulation; the Planning, Development and Infrastructure Act 2016 does not apply, but building work must be certified as complying with Building Rules (section 58D(2)(a)). Twelfth, the Minister may direct removal of unauthorised tourism development and recover costs from any person found responsible, even if the original developer cannot be found (section 58I(4)). Thirteenth, the offence of providing false or misleading information carries a penalty of only $5,000 (section 85), but it applies to any information provided under the Act. Fourteenth, the continuing offence provision (section 87) can multiply penalties for ongoing breaches. Finally, the Act applies extraterritorially to the full extent of the Parliament’s power (section 6), so conduct beyond State waters may be captured.

Compliance requires a structured approach. First, any person proposing to carry on aquaculture must obtain an aquaculture licence (section 17). If the activity is in State waters (including coastal waters), the person must also obtain an aquaculture lease (section 19). The application process differs by lease class. For a pilot lease (outside an aquaculture zone), the applicant applies to the Minister, who must be satisfied of consistency with objects and prescribed criteria, that the applicant is a suitable person, and must publish public notice, consider submissions, and refer the matter to the EPA (section 28). For a production lease within an aquaculture zone, the applicant must respond to a public call if the zone is designated as a public call area (section 35); otherwise the application is assessed by ATAB (section 36). Research lease applications may be made at any time, even in a public call area (section 39A). Emergency leases are granted by the Minister on his or her own initiative or on application (section 40). In all cases, the application must be in the manner and form required, accompanied by fees, and supported by information verified by statutory declaration if required (sections 22 and 49). The applicant should ensure that it meets the suitable person criteria by reviewing any past offences or cancelled authorisations (section 4A). Once a licence is granted, the holder must comply with all conditions, including standard conditions from aquaculture policies (section 11(3b)). Annual fees must be paid each financial year by the date specified by the Minister; failure leads to suspension and eventual cancellation (section 53). The lessee/licensee must maintain the lease in good standing: meet performance criteria, pay rent, and not allow aquaculture to cease without justification (section 25B). If the lessee wishes to vary the lease (e.g. substitute the area), the variation cannot increase the size, and the consent of any person noted on the register is required (section 25A). Transferring a production lease requires the Minister’s consent and consent of persons noted on the register (section 39). Surrender requires consent and similar consents (section 25C). The public register should be monitored for notations of interests; if a financier or other party holds a noted interest, their consent will be needed for many dealings. The holder must also ensure that if the lease or licence is terminated, all equipment and stock are removed from State waters within the time allowed in any Ministerial direction; otherwise the Minister may remove and forfeit them (sections 48A and 58). For aquaculture tourism development under Part 7A, the developer must obtain an aquaculture tourism development authorisation from the Minister (section 58C). The building work must be certified as complying with Building Rules by a building certifier (section 58D(2)(a)). The developer must obtain the concurrence of the Minister responsible for the Harbors and Navigation Act if the land is vested in that Minister, and the consents of the lessee/licensee and any persons noted on the register if the development is within an existing aquaculture lease or licence area (section 58F). Public notice of the application is required before grant (section 58G). The developer must comply with all conditions of the authorisation; conditions may be varied by the Minister in some circumstances without consent (section 58D(4)). On cessation or cancellation of the authorisation, any built structures must be removed and the area rehabilitated as directed (section 58I). All persons subject to the Act should be aware of the general defence (section 89): if charged with an offence, the defendant bears the legal burden of proving the offence was not intentional and did not result from any failure to take reasonable care. This defence is not available to directors charged under section 88. Directors should implement due diligence systems to prevent offences, particularly given the reverse onus for some offences. Regular environmental monitoring reports must be furnished if required by regulations or licence conditions; summaries appear on the public register (section 80(2)(e)). Lessees and licensees should ensure their address for service is kept current on the public register, as notices served at that address are deemed effective (section 86(2)). Finally, any person providing information under the Act must not make false or misleading statements (section 85).