Fisheries Act 1995

Part 1—Preliminary

1 Purpose

The purpose of this Act is to—

(a) provide a modern legislative framework for the regulation, management and conservation of Victorian fisheries including aquatic habitats;

(b) reform the law relating to Victorian fisheries;

(c) repeal the Fisheries Act 1968;

(d) make consequential amendments to other Acts.

2 Commencement

(1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

S. 2(2) substituted by No. 5/1997

(2) If a provision of this Act does not come into operation before 1 January 1999, it comes into operation on that day.

S. 2(3) repealed by No. 5/1997

3 Objectives of Act

The objectives of this Act are—

(a) to provide for the management, development and use of Victoria's fisheries, aquaculture industries and associated aquatic biological resources in an efficient, effective and ecologically sustainable manner;

(b) to protect and conserve fisheries resources, habitats and ecosystems including the maintenance of aquatic ecological processes and genetic diversity;

(c) to promote sustainable commercial fishing and viable aquaculture industries and quality recreational fishing opportunities for the benefit of present and future generations;

(d) to facilitate access to fisheries resources for commercial, recreational, traditional and non-consumptive uses;

S. 3(e) substituted by No. 108/2003 s. 23.

(e) to promote the commercial fishing industry and to facilitate the rationalisation and restructuring of the industry;

(f) to encourage the participation of resource users and the community in fisheries management.

S. 3A inserted by No. 35/2009 s. 27.

3A Consultation principles

S. 3A(1) amended by No. 68/2016 s. 49(1).

(1) To the extent that it is practicable, the following consultation principles apply to decisions made by the Minister, Secretary or Victorian Fisheries Authority under this Act, which affect the use and conservation of Victoria's fisheries resources—

(a) the purpose of consultation and any consultation process should be clear, open, timely and transparent;

(b) the level of consultation should reflect the likely impact of decisions on persons and fisheries resources;

(c) the consultation process should be adequately resourced;

(d) the consultation process should be flexible and designed to take into account the number and type of persons to be consulted and their ability to contribute to the process;

(e) the consultation process should involve consideration of representative advice which represents the views and values of the persons represented;

(f) representative advice in relation to the following persons or groups should be considered during any consultation process—

(i) recreational fishers;

(ii) commercial fishers;

(iii) aquaculture operators;

(iv) conservation groups;

(v) indigenous groups;

(g) the consultation process should consider expert advice, which should be obtained from the most appropriate provider;

(h) any expert advice obtained during the consultation process should be made available to persons participating in the consultation process.

(2) Without limiting the generality of subsection (1), for the purposes of that subsection, the following decisions are taken to affect the use and conservation of Victoria's fisheries resources—

(a) a decision by the Minister to declare or amend a management plan under Part 3;

S. 3A(2)(b) amended by No. 68/2016 s. 49(2).

(b) a decision by the Victorian Fisheries Authority to vary a class of fishery licence under section 54(1)(c);

S. 3A(2)(c) amended by No. 68/2016 s. 49(2).

(c) a decision under section 54(1)(d) by the Victorian Fisheries Authority to vary or revoke a condition imposed by the Victorian Fisheries Authority, or to impose a new condition, on a class of fishery licence;

(d) a decision by the Minister to give, revoke or amend a direction on matters relating to the management of fisheries or zones in a fishery under section 61;

(e) a decision by the Minister to make, revoke or amend a quota order in relation to a fishery under section 64, 64A, 66C or 66D;

(f) a decision by the Minister to make, revoke or amend an order declaring sub-zones in a quota fishery under section 64AB or 66E;

(g) a decision by the Minister to appoint a person as a member of the Commercial Fisheries Licensing Panel under section 132(2)(c) or 132(2)(d);

S. 3A(2)(h) repealed by No. 40/2019 s. 10.

(i) decisions relating to the making and content of regulations in respect of royalties and levies imposed in accordance with sections 150 and 151;

(j) decisions by the Minister relating to priorities for the disbursement of funds that may be paid out of the Recreational Fishing Licence Trust Account under section 151B;

(k) a decision by the Minister to make a fisheries notice under section 152(1).

(3) This section does not apply in relation to the following decisions—

(a) decisions which are specific to an individual licence or permit, the holder of a licence or permit or a person acting on behalf of a holder of a licence or permit;

(b) reviewable decisions within the meaning of section 137.

(4) In this section person includes an association or body.

S. 4 (Heading) inserted by No. 35/2009 s. 50(1).

4 Definitions and interpretative provisions

(1) In this Act—

S. 4(1) def. of abalone inserted by No. 5/1997
s. 4(1)(b).

abalone means blacklip and greenlip abalone and includes all other species, forms, races and hybrids of abalone;

S. 4(1) def. of access licence substituted by No. 5/1997
s. 4(1)(b).

access licence means a licence issued under section 38;

S. 4(1) def. of adjusting fishery repealed by No. 5/1997

angle means use a line (whether or not attached to a rod) for the purpose of taking fish;

S. 4(1) def. of appointed day substituted by No. 5/1997
s. 4(1)(c).

appointed day means the appointed day or the relevant appointed day specified under section 155(3);

S. 4(1) def. of approved code of fishing practice repealed by No. 5/1997

S. 4(1) def. of aquaculture licence substituted by No. 5/1997
s. 4(1)(c).

aquaculture licence means a licence issued under section 43;

aquatic invertebrate means an invertebrate that lives in water for the whole or part of its life cycle;

arrangement means an arrangement made by the State with the Commonwealth under this Act whether or not it is also made with another State or other States and an arrangement made by the State with another State or States;

S. 4(1) def. of associated offence inserted by No. 69/2004 s. 5(1).

associated offence has the meaning set out in section 98(1);

S. 4(1) def. of Australian lawyer inserted by No. 18/2005 s. 18(Sch. 1 item 44.1), repealed by No. 17/2014 s. 160(Sch. 2 item 44).

S. 4(1) def. of authorised officer amended by No. 68/2016 s. 50(b).

authorised officer means a person appointed as an authorised officer under the Conservation, Forests and Lands Act 1987 for the purposes of this Act, a person appointed under Part 3 of the Victorian Fisheries Authority Act 2016 or the chief executive officer;

S. 4(1) def. of blacklip abalone inserted by No. 58/2005 s. 3(1).

blacklip abalone, in relation to abalone quota management, catch and size limits and closed seasons, means—

(a) all species of abalone other than greenlip abalone; and

(b) all other forms, races and hybrids of abalone;

boat means any means of transportation on water;

S. 4(1) def. of carcass inserted by No. 35/2009 s. 50(2).

carcass means

(a) in relation to shark or elephantfish, the body of a shark or elephantfish which is not cut or mutilated in any manner other than to remove the gut and head forward and clear of the posterior gill slit; and

(b) in relation to scale fish, the body of a fish which is not cut or mutilated in any manner other than to remove the gut or gills or scale the fish; and

(c) in relation to spiny freshwater crayfish, the body of a crayfish which—

(i) is not cut in any way other than to remove one or more legs or claws; or

(ii) is not mutilated in any way other than the absence of one or more legs or claws;

S. 4(1) def. of catch limit inserted by No. 5/1997
s. 4(1)(d).

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 terms of numbers, volume, 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;

S. 4(1) def. of chief executive officer inserted by No. 68/2016 s. 50(a).

chief executive officer means the chief executive officer of the Victorian Fisheries Authority;

S. 4(1) def. of closed season substituted by No. 5/1997
s. 4(1)(d).

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;

coastal waters in relation to the State has the same meaning as it has in the Commonwealth Act;

S. 4(1) def. of commercial abalone equipment substituted by No. 5/1997
s. 4(1)(e).

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 underwater breathing apparatus, knife, probe, lever, iron or bar;

commercial aquaculture equipment means any equipment which is prescribed to be commercial aquaculture equipment;

Commercial Fisheries Licensing Panel means the Commercial Fisheries Licensing Panel referred to in section 132;

S. 4(1) def. of commercial fishing equipment substituted by No. 5/1997
s. 4(1)(f), amended by No. 51/2007 s. 3(1)(a) (2)(a)(b).

commercial fishing equipment means—

(a) any fish trap, hoop net or fishing net (other than recreational fishing equipment when used by a recreational fisher in accordance with this 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;

(f) any recreational 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 regulations state is commercial fishing equipment;

(h) any fishing dredge, 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;

S. 4(1) def. of commercial fishing licence repealed by No. 5/1997

S. 4(1) def. of commercial quantity inserted by No. 108/2003 s. 3,
amended by No. 35/2009 s. 50(3), substituted by No. 40/2019 s. 11(1).

commercial quantity, in relation to any priority species, means the quantity of fish prescribed in respect of that priority species;

Commonwealth Act means the Fisheries Management Act 1991 of the Commonwealth;

Commonwealth Minister means the Minister for the time being administering the Commonwealth Act and any other Minister exercising powers and performing functions pursuant to section 60 of the Commonwealth Act;

Commonwealth proclaimed waters means the Australian Fishing Zone (AFZ) as defined under the Commonwealth Act;

S. 4(1) def. of condition inserted by No. 5/1997
s. 4(1)(g).

condition, in relation to a licence or permit, includes any restriction that applies to the licence or permit;

S. 4(1) def. of consultative body
repealed by No. 35/2009

S. 4(1) def. of co-operative inserted by No. 108/2003 s. 29(1), amended by No. 9/2013 s. 42(Sch. 2 item 9).

co-operative means a body registered as a co‑operative—

(a) under the Co‑operatives National Law (Victoria); or

(b) under an equivalent law of another Australian jurisdiction;

S. 4(1) def. of corporation inserted by No. 108/2003 s. 29(1).

corporation means a corporation that—

(a) has a registered office in Australia; and

(b) that holds an Australian Company Number;

S. 4(1) def. of Council inserted by No. 64/2013 s. 3(3).

Council means the Fisheries Advisory Council established under Part 6;

court means the Magistrates' Court or any other court of competent jurisdiction;

S. 4(1) def. of declared fishery repealed by No. 5/1997

S. 4(1) def. of Department inserted by No. 108/2003 s. 3, amended by No. 70/2013 s. 4(Sch. 2 item 18.1), substituted by No. 68/2016 s. 50(c).

Department means the Department of Economic Development, Jobs, Transport and Resources;

S. 4(1) def. of designated licence condition inserted by No. 5/1997
s. 4(1)(h).

designated licence condition means a licence or permit condition that the regulations specify as a designated licence condition for the purposes of this Act;

S. 4(1) def. of developing fishery substituted by No. 5/1997
s. 4(1)(h).

developing fishery means a fishery that is not to be managed by the granting of renewable licences and that the regulations, or a Ministerial direction, define as a developing fishery;

S. 4(1) def. of fish receiver's licence inserted by No. 5/1997
s. 4(1)(h), amended as fish receiver licence by No. 35/2009 s. 50(4)(a).

fish receiver licence means a licence issued under section 41;

S. 4(1) defs of endorsement, export fishery repealed by No. 5/1997

S. 4(1) def. of Fisheries Co-Management Council
repealed by No. 35/2009

fisheries notice means a fisheries notice made under section 152;

fisheries reserve means a fisheries reserve declared under section 88;

S. 4(1) def. of fishery committee repealed by No. 35/2009

S. 4(1) def. of fishery licence amended by Nos 5/1997
s. 4(1)(i)(i)(ii), 35/2009 s. 50(4)(b).

fishery licence means—

(a) an access licence; or

(c) an aquaculture licence; or

(d) a recreational fishery licence; or

(e) a fish receiver licence; or

(f) any other category of licence created by the regulations under clause 3.1 of Schedule 3;

S. 4(1) def. of fishing bait inserted by No. 5/1997
s. 4(1)(j).

fishing bait means any species of fauna declared to be fishing bait under section 6;

foreign boat has the same meaning as in the Commonwealth Act;

S. 4(1) def. of Gippsland Lakes inserted by No. 35/2019 s. 3.

Gippsland Lakes means the total area of all waters bounded by a line commencing at the seaward end of the western pier at the entrance wall at the entrance to the Gippsland Lakes, continuing in a generally north-westerly direction to the shoreward end of that pier then following the shoreline along the mean high water mark of such waters in a generally clockwise direction to the shoreward end of the eastern pier at the entrance wall at the entrance to the Gippsland Lakes, then following that wall to its seaward end, then in a generally westerly direction to the commencement of that line, but does not include the waters east of Eastern Beach Road or any river, creek or stream flowing into the Gippsland Lakes (except Chinaman's Creek and Boxes Creek which flow into and form part of Bancroft Bay);

S. 4(1) def. of greenlip abalone inserted by No. 58/2005 s. 3(1).

greenlip abalone, in relation to abalone quota management, catch and size limits and closed seasons, means abalone of the species Haliotis laevigata;

S. 4(1) def. of individual quota amended by No. 5/1997
s. 4(1)(k).

individual quota means the number of quota units (including a portion of a quota unit) allocated to an access licence by a quota order, whether as part of a total allowable catch or otherwise;

S. 4(1) def. of individual quota unit substituted by No. 5/1997
s. 4(1)(l), amended by No. 58/2005 s. 3(2)(a).

individual quota unit means a quantity of a species of fish (by number, volume, weight or value) declared under section 64A(1)(b) or 66D(1)(b) to be the individual quota unit for that species;

S. 4(1) def. of inland waters amended by No. 5/1997
s. 4(1)(m)(i)(ii).

inland waters means—

(a) any swamp or lake other than the Gippsland Lakes, Lake Tyers, the Lower Lake of Mallacoota Inlet and Wingan Inlet;

(b) any waterway, channel or anabranch from its mouth to its source and any inlet, backwater or lagoon connected with it;

(c) any other lagoon, backwater, anabranch or billabong;

(d) any reservoir, dam, tank, channel or works for water storage or distribution vested in or under the control of the Crown or a public authority;

(e) any other waters declared by the regulations to be inland waters—

but does not include any water or waters which is private property;

S. 4(1) def. of input managed fishery repealed by No. 5/1997

Joint Authority means any Joint Authority established under Part 5 of the Commonwealth Act of which the Minister is a member;

Joint Authority fishery means a fishery in respect of which there is in force an arrangement under Part 2 by which the fishery is under the management of a Joint Authority;

S. 4(1) def. of licence amended by No. 5/1997
s. 4(1)(n).

licence means—

(a) a fishery licence; or

(b) any category of licence created by the regulations under clause 3.2 of Schedule 3;

S. 4(1) def. of Licensing Appeals Tribunal repealed by No. 40/2019 s. 11(3).

management plan means a management plan declared under Part 3;

S. 4(1) def. of marine waters substituted by No. 5/1997
s. 4(1)(o).

marine waters means Victorian waters other than—

(a) inland waters;

(b) any waters that are private property;

S. 4(1) def. of maximum size inserted by No. 40/2019 s. 11(2).

maximum size, in relation to a species of fish, means the maximum size for that species of fish specified by the regulations or in a fisheries notice;

S. 4(1) def. of minimum size inserted by No. 40/2019 s. 11(2).

minimum size, in relation to a species of fish, means the minimum size for that species of fish specified by the regulations or in a fisheries notice;

S. 4(1) def. of Ministerial direction inserted by No. 5/1997
s. 4(1)(o).

Ministerial direction means a direction given under section 61;

noxious aquatic species means a noxious aquatic species declared under section 75;

S. 4(1) def. of open season substituted by No. 5/1997
s. 4(1)(p).

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;

Order in Council means an Order made by the Governor in Council and published in the Government Gazette;

S. 4(1) def. of permit amended by No. 5/1997
s. 4(1)(q).

permit means—

(a) a general permit under section 49;

(b) a protected aquatic biota permit under section 72; or

(c) a noxious aquatic species permit under section 81; or

(d) any other category of permit issued in accordance with the regulations;

S. 4(1) def. of police officer inserted by No. 37/2014 s. 10(Sch. item 65.1).

police officer has the same meaning as in the Victoria Police Act 2013;

S. 4(1) def. of priority species inserted by No. 5/1997
s. 4(1)(r), amended by No. 35/2009 s. 50(5).

priority species means—

(a) abalone, rock lobster or Murray cod; and

(b) any other species of fish that the regulations state are a priority species;

process means shell, skin, shuck, fillet, dismember, mince, open, cut, break, cook, pack, chill, freeze, can, preserve or otherwise treat;

protected aquatic biota means any taxon or community of aquatic flora or fauna declared to be protected aquatic biota under section 69;

protected waters means—

(a) Victorian waters; and

(b) any aquarium or hatchery or any other waters in Victoria whether or not private property;

public authority means any Government Department or any body corporate or unincorporate established under any Act for a public purpose;

S. 4(1) def. of quota fishery inserted by No. 80/2000 s. 3(b), amended by No. 58/2005 s. 3(2)(b).

quota fishery means a fishery, or a specified zone or zones of a fishery, that is the subject of a declaration under section 64(1)(a) or 66C(1)(a);

S. 4(1) def. of quota managed fishery repealed by No. 5/1997

S. 4(1) def. of quota notice substituted by No. 5/1997
s. 4(1)(s).

quota notice means a notice issued under section 65;

S. 4(1) def. of quota order inserted by No. 5/1997
s. 4(1)(s), amended by Nos 80/2000 s. 3(a), 58/2005 s. 3(2)(c).

quota order means an order issued under section 64, 64A, 66C or 66D;

S. 4(1) def. of quota period inserted by No. 5/1997
s. 4(1)(s).

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;

S. 4(1) def. of recognised peak body repealed by No. 35/2009

S. 4(1) def. of recreational fishery licence inserted by No. 5/1997
s. 4(1)(t).

recreational fishery licence means a licence issued under section 45 or a group recreational fishery licence issued under section 46;

S. 4(1) def. of recreational fishing equipment inserted by No. 51/2007 s. 3(2)(c).

recreational fishing equipment means any fishing equipment prescribed in the regulations to be recreational fishing equipment;

S. 4(1) def. of recreational fishing licence repealed by No. 5/1997
s. 4(1)(t).

S. 4(1) def. of register repealed by No. 5/1997

S. 4(1) def. of representative body inserted by No. 64/2013
s. 3(1).

representative body means an organisation that represents—

(a) commercial fishing interests; or

(b) seafood industry interests; or

(c) aquaculture interests; or

(d) recreational fishing interests;

S. 4(1) def. of rock lobster inserted by No. 5/1997
s. 4(1)(u), amended by No. 64/2013
s. 3(2).

rock lobster means an animal of the family palinuridae;

S. 4(1) def. of Secretary substituted by Nos 76/1998 s. 8, 56/2003 s. 3, amended by No. 70/2013 s. 4(Sch. 2 item 18.2), substituted by No. 68/2016 s. 50(d).

Secretary means the Secretary to the Department of Economic Development, Jobs, Transport and Resources;

sell includes—

(a) barter; and

(b) exchange; and

(c) agree or offer to sell; and

(d) receive, have in possession or expose for sale; and

(e) send, forward, deliver or consign for sale; and

(f) sell for resale; and

(g) cause, permit or attempt any of the acts or things referred to in paragraphs (a) to (f);

S. 4(1) def. of specially managed fishery repealed by No. 5/1997

S. 4(1) def. of stock inserted by No. 51/2007 s. 3(1)(b).

stock in relation to fish, includes the releasing, putting or introducing of fish into waters;

take means gain possession or control by any means;

S. 4(1) defs of taxon, transferable fishery licence repealed by No. 5/1997

S. 4(1) def. of vessel monitoring system inserted by No. 80/2000 s. 3(b), amended by No. 68/2016 s. 50(e).

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

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

S. 4(1) def. of Victorian Fisheries Authority inserted by No. 68/2016 s. 50(a).

Victorian Fisheries Authority means the Victorian Fisheries Authority established under the Victorian Fisheries Authority Act 2016.

S. 4(2) substituted by No. 5/1997

(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.

S. 4(3) substituted by No. 5/1997

(3) For the purposes of this Act, any measurements fixed with respect to the 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.

S. 4(4) substituted by No. 5/1997

(4) Any fish that is less than the minimum measurement fixed for fish of that species is referred to in this Act as undersized.

(5) In this Act, any reference to "measurement" or "size" or any derivatives thereof is to be read and construed as including reference to "weight".

(6) Subject to any express provision to the contrary, a reference in this Act to the weight of fish is to be read and construed as a reference to the whole weight of the fish, being the weight of the fish before any processing (other than freezing) commences and before any part of the fish is removed.

S. 4(7) substituted by No. 5/1997

(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.

S. 4(7A) inserted by No. 69/2004 s. 11(3).

(7A) A reference to "his or her" is to be read as including a reference to "its", if the context permits.

S. 4(8) inserted by No. 5/1997

(8) A reference to an individual quota unit includes a reference to a fraction of an individual quota unit, unless a contrary intention appears.

S. 4(9) inserted by No. 5/1997

(9) A person who is exempted under this Act from any provision or requirement under this Act is to be treated as if he or she was authorised under this Act to do, or not do, the thing that he or she is exempted from doing, or not doing.

S. 4(10) inserted by No. 34/2006 s. 3.

(10) If an arrangement under Part 2 is varied, a reference in this Act to the arrangement is a reference to the arrangement as varied.

S. 4(11) inserted by No. 34/2006 s. 3.

(11) A reference to a fishery that is to be managed in accordance with the law of the State pursuant to an arrangement under Part 2 includes a reference to a part of such a fishery.

S. 4(12) inserted by No. 35/2009 s. 50(6).

(12) A reference in any subordinate instrument made under this Act or in any other document of any kind to a "fish receiver's licence" or a "fish receivers' licence" is to be read and construed as a reference to a "fish receiver licence" or any derivative thereof so far as it applies to any period on or after the commencement of section 50(4) of the Primary Industries Legislation Amendment Act 2009, unless the contrary intention appears.

5 Definition of *fish*

(1) In this Act, fish means—

S. 5(1)(a) amended by No. 5/1997
s. 50(1)(a)(i).

(a) all species of vertebrate aquatic fauna other than mammals, reptiles, birds and amphibians;

(b) sharks, rays, lampreys and other cartilaginous fish;

(c) oysters and other aquatic molluscs;

S. 5(1)(d) amended by No. 35/2009
s. 51.

(d) aquatic crustaceans;

(e) echinoderms;

S. 5(1)(f) amended by No. 5/1997
s. 50(1)(a)(ii).

(f) any other species of aquatic invertebrate declared to be fish under subsection (2).

S. 5(2) amended by No. 5/1997
s. 50(1)(a)(ii).

(2) The Governor in Council may by Order in Council declare a species of aquatic invertebrate to be fish for the purposes of this Act.

(3) A reference in this Act to fish includes a reference to—

(a) fish in any form whether—

(i) alive or dead;

(ii) raw, cooked, preserved or processed in any manner whatsoever;

(b) fish of either sex;

(c) fish ova;

(d) part of a fish.

S. 5(4) substituted by No. 5/1997
s. 50(2).

(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.

S. 6
amended by No. 5/1997
s. 50(1)(b).

6 Declaration of *fishing bait*

The Governor in Council may by Order in Council declare a species of fauna which is not protected wildlife within the meaning of section 3(1) of the Wildlife Act 1975 to be fishing bait for the purposes of this Act and whether it is fishing bait when it is alive or dead.

7 Definition of *fishery*

S. 7(1) substituted by No. 5/1997
s. 5(1).

(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) Without limiting the matters by reference to which a fishery may be defined, a fishery may be defined by reference to any one or more of the following—

S. 7(2)(a) substituted by No. 5/1997
s. 5(2)(a).

(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) an area of land or waters or land and waters;

(c) a method of fishing;

(d) a type of fishing equipment;

(e) a class of boats;

S. 7(2)(f) substituted by No. 5/1997
s. 5(2)(b).

(f) a class of licences or permits;

(g) a class of licence holders or permit holders or other persons;

(h) a type or class of activity;

(i) a type or class of fish habitat;

(j) a season.

S. 7A
inserted by No. 5/1997
s. 6.

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;

(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).

S. 7B inserted by No. 108/2003 s. 4.

7B Expanded meaning of *possession* of fish or fishing equipment

Without limiting the meaning of possess, for the purposes of this Act a person possesses a fish or an item of fishing equipment if the fish or item is on any land or premises occupied by him or her, or is under the person's control, unless the person can satisfy the relevant court to the contrary.

8 Definition of *Victorian waters* and *waters*

(1) This Act applies to Victorian waters and protected waters.

(2) In this Act, reference to Victorian waters or to waters generally is a reference—

(a) to all waters that are within the limits of the State;

(b) except in relation to a fishery that is to be managed in accordance with the law of the Commonwealth pursuant to an arrangement under Part 2 and except for purposes prescribed by paragraph (d), to any waters of the sea not within the limits of the State that are on the landward side of waters adjacent to the State that, within the meaning of that Part, are within the Commonwealth proclaimed waters;

(c) in relation to a fishery that is to be managed in accordance with the law of the State pursuant to an arrangement under Part 2, to any waters to which the legislative powers of the State extend, with respect to that fishery, whether pursuant to section 5 of the Coastal Waters (State Powers) Act 1980 of the Parliament of the Commonwealth or otherwise;

(d) in relation to activities to which this Act applies being activities that are, within the meaning of the Commonwealth Act, carried on for private purposes otherwise than by the use of a foreign boat, to any waters to which the legislative powers of the State extend with respect to those activities.

(3) In this Act, a reference to waters includes a reference to the bed and sub-soil lying beneath those waters.

(4) Regulations or fisheries notices may define the limit of Victorian waters for the purposes of this Act and for defining such limits may specify the boundaries of any waterway, bay, estuary or lake or the mouth of any inland waters.

9 Act to bind the Crown

(1) This Act binds the Crown, not only in right of Victoria but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.

(2) Nothing in this Act makes the Crown in any of its capacities liable to be prosecuted for an offence.

10 Crown property

(1) The Crown in right of Victoria owns all wild fish and other fauna and flora found in Victorian waters.

(2) The property in any wild fish and other fauna and flora found in Victorian waters passes—

S. 10(2)(a) amended by No. 5/1997
s. 50(1)(c).

(a) to the holder of an access licence, a recreational fishery licence, an aquaculture licence or a relevant licence or permit when taken from Victorian waters in accordance with the licence or permit;

S. 10(2)(aa) inserted by No. 58/2005 s. 4.

(aa) to the holder of the abalone quota unit when taken from Victorian waters in accordance with an Abalone Fishery Access Licence by the holder of the Abalone Fishery Access Licence under an individual abalone quota unit;

(b) to any other person when—

(i) lawfully taken from Victorian waters; and

(ii) where no licence or permit is required under this Act for the purpose.

S. 11 substituted by No. 5/1997
s. 7.

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) Subsection (2) does not absolve a person from complying with this Act with respect to any fish, fishing bait or protected aquatic biota that subsection (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—

(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.

S. 11AA inserted by No. 67/2016 s. 29.

11AA Traditional owner agreement for natural resources

(1) If a traditional owner group entity has an agreement under Part 6 of the Traditional Owner Settlement Act 2010, any provision of this Act that provides for an offence for carrying out an agreed activity (other than a provision specified in subsection (2)) does not apply to a member of the traditional owner group—

(a) who is bound by the agreement; and

(b) who is carrying out an agreed activity to which the offence applies in accordance with the agreement and on land to which the agreement applies.

(2) For the purpose of subsection (1) the following provisions are specified—

(a) section 53;

(b) section 68B;

(c) section 76;

(d) section 84;

(e) section 139.

S. 11AA(3) inserted by No. 38/2017 s. 61.

(3) For the purposes of this section—

(a) a reference in subsection (1) to this Act does not include a reference to the regulations; and

(b) to avoid doubt, subsection (1) does not prevent a provision of the regulations from providing for an offence for carrying out an agreed activity.

S. 11A inserted by No. 108/2003 s. 24, amended by No. 22/2004 s. 6 (ILA s. 39B(1)).

11A This Act applies to fisheries reserves on land

(1) This Act applies to—

(a) any fisheries reserve declared under section 88(1)(b) or 88(1)(c); and

(b) any land on which an aquaculture activity is being conducted.

S. 11A(2) inserted by No. 22/2004 s. 6.

(2) Subsection (1) does not limit the application of any provision of this Act.

S. 11B inserted by No. 35/2009 s. 52.

11B Extraterritorial operation of Act

(a) a person does, or omits to do, an act or thing outside, or partly outside, Victoria, which would contravene a provision of this Act; and

(b) there is a real and substantial link between doing, or omitting to do, the act or thing and Victoria—

that provision applies to the act or thing or the omission as if it had been done, or omitted to be done, wholly within Victoria.

(2) Without limiting the generality of subsection (1), there is a real and substantial link with Victoria for the purposes of that subsection if—

(a) the conduct relates to a thing or act done or omitted to be done by the person when carrying out fishing activities under a fishery licence held, or purported to be held, by that person; or

(b) the conduct relates to the taking of fish from Victorian waters by the person.

(3) In this section a reference to a contravention of a provision of this Act is to be read as including a reference to the commission of an associated offence.

S. 11C inserted by No. 74/2010 s. 24.

11C Licence, approval and quota not personal property

For the purposes of section 8(1)(k) of the Personal Property Securities Act 2009 of the Commonwealth, a licence, approval of transfer or individual quota, granted or allocated under this Act, is declared not to be personal property.

Part 2—Commonwealth and State management of fisheries

Division 1—Commonwealth–State management

12 Powers and functions of Minister and deputy

(1) The Minister may exercise any power and perform any function conferred on the Minister by Part 5 of the Commonwealth Act, including any power or function of the Minister as a member of a Joint Authority.

(2) If in the exercise of the power conferred on the Minister by Part 5 of the Commonwealth Act, the Minister appoints a deputy, the deputy may exercise the powers and perform the functions conferred by that Act on the deputy of a member of a Joint Authority other than the Commonwealth Minister.

13 Power to enter into agreements

(1) The Minister may do any thing which in his or her opinion is necessary or convenient to ensure the co-operation of the government of the Commonwealth or the government of any other State in carrying out the purposes of this Act.

(2) Without limiting subsection (1), the Minister may enter into agreements with a Minister of the Crown in right of the Commonwealth or in right of any other State or with Ministers of the Crown in right of the Commonwealth and in right of any other States or with any authority constituted under a law of the Commonwealth or of any other State, including without limiting the generality of this subsection agreements for—

(a) fisheries adjustment schemes and funding of such schemes; and

(b) fisheries research schemes and funding of such schemes.

S. 13(3) amended by No. 68/2016 s. 51.

(3) Despite anything to the contrary in this Act, the Secretary or the Victorian Fisheries Authority—

S. 13(3)(a) amended by No. 68/2016 s. 51.

(a) must perform any duties or functions required to be performed by the Secretary or the Victorian Fisheries Authority; and

S. 13(3)(b) amended by No. 68/2016 s. 51.

(b) may exercise any powers and perform any functions conferred on or delegated to the Secretary or the Victorian Fisheries Authority—

by or under this section or an agreement made under this section.

14 Judicial notice and publication of agreement

(1) All courts and persons acting judicially must take judicial notice of the signature of a person who is or has been a member of a Joint Authority or a deputy of a member of a Joint Authority and of the fact that the person is, or was at a particular time, such a member or deputy.

(2) Any agreement entered into by the Minister under this part is to be published in the Government Gazette within 14 days of the agreement being entered into.

15 Functions of Joint Authority

A Joint Authority has such functions in relation to a fishery in respect of which an arrangement is in force as are conferred on it by the law in accordance with which, pursuant to the arrangement, the fishery is to be managed.

16 Delegation

(1) A Joint Authority may, by instrument in writing, either generally or as otherwise provided by the instrument, delegate to a person any of its powers under this Part other than this power of delegation.

(2) If a power delegated under subsection (1) is exercised by the delegate the power is, for the purposes of this Act, deemed to have been exercised by the Joint Authority.

(3) A delegation under this section may be expressed to be a delegation to the person from time to time holding or performing the duties of a specified office including an office—

(a) in the service of; or

(b) in the service of an Authority of; or

(c) under the law of—

the Commonwealth, another State or a Territory of the Commonwealth.

(4) A delegate of a Joint Authority is, in the exercise of delegated powers, subject to the directions of the Joint Authority.

(5) A delegation of a power under this section—

(a) may be revoked by instrument in writing by the Joint Authority (whether or not constituted by the persons constituting the Joint Authority at the time the power was delegated);

(b) does not prevent the exercise of the power by the Joint Authority;

(c) continues in force notwithstanding any change in the membership of the Joint Authority.

(6) A certificate signed by a member of a Joint Authority stating any matter with respect to a delegation under this section by the Joint Authority is evidence of that matter.

(7) A document purporting to be a certificate referred to in subsection (6) is, in the absence of evidence to the contrary, deemed to be such a certificate and to have been duly given.

(8) Nothing in this Part prevents the delegation by a Joint Authority, in accordance with a law of the Commonwealth, of powers conferred on the Joint Authority by the law of the Commonwealth.

17 Procedure of Joint Authorities

(1) Sections 66, 67 and 68 of the Commonwealth Act apply to and in relation to the performance by a Joint Authority of its functions under this Act.

(2) A written record purporting to be a record of a decision of a Joint Authority and to be signed by the Commonwealth Minister, or his or her deputy, who took part in or made the decision is evidence that the decision as recorded was duly made.

(3) In proceedings in any court, an instrument or other document signed on behalf of a Joint Authority by a member of the Joint Authority is taken to have been duly executed by the Joint Authority and, unless the contrary is proved, is taken to be in accordance with a decision of the Joint Authority.

18 Report of Joint Authority to be tabled

The Minister must cause a copy of a report of a Joint Authority prepared under section 70 of the Commonwealth Act to be laid before each House of Parliament as soon as practicable after the Minister receives a copy of the report.

19 Arrangement for management of certain fisheries

(1) The State may, in accordance with section 74 of the Commonwealth Act, make an arrangement referred to in section 71 or 72 of that Act for the management of a particular fishery.

S. 19(1A) inserted by No. 34/2006 s. 4(1).

(1A) An arrangement may be varied as provided for in section 74A of the Commonwealth Act.

S. 19(2) amended by No. 34/2006 s. 4(2).

(2) An arrangement may be terminated as provided by section 75 of the Commonwealth Act.

(3) After an arrangement has been made but before the arrangement takes effect—

for the purpose of providing for the operation of this Act as affected by the arrangement in all respects as if the arrangement had taken effect but such a licence, permit, instrument, regulation or fisheries notice does not have effect before the arrangement takes effect.

S. 19(3A) inserted by No. 34/2006 s. 4(3).

(3A) After an arrangement has been varied in accordance with the Commonwealth Act but before the variation takes effect—

for the purpose of providing for the operation of this Act as affected by the variation of the arrangement in all respects as if the variation of the arrangement had taken effect.

S. 19(3B) inserted by No. 34/2006 s. 4(3).

(3B) A licence, permit, instrument, regulation or fisheries notice under subsection (3A) does not have effect before the variation of the arrangement takes effect.

S. 19(3C) inserted by No. 34/2006 s. 4(3).

(3C) On the variation of an arrangement*—*

(a) each licence, permit and other instrument granted, issued, renewed, made or executed under this Act, that is in force immediately before the commencement of the variation; and

(b) any fisheries notice made under this Act, that is in force immediately before the commencement of the variation—

ceases to have effect, to the extent that it is inconsistent with the arrangement as varied.

(4) On the termination of an arrangement, licences, permits and other instruments granted, issued, renewed, made or executed and regulations and fisheries notices made for the purpose of providing for the operation of this Act as affected by the arrangement cease to have effect.

(5) After notice of termination of an arrangement has been given pursuant to the Commonwealth Act but before the termination takes effect—

S. 19(5)(a) amended by No. 74/2000 s. 3(Sch. 1 item 49.1).

for the purpose of providing for the operation of this Act as affected by the termination of the arrangement in all respects as if the arrangement had been terminated.

(6) A licence, permit, instrument, regulation or fisheries notice under subsection (5) does not have effect before the termination of the arrangement takes effect.

20 Application of Act to fisheries in accordance with arrangements

S. 20(1) amended by No. 5/1997
s. 50(1)(d).

(1) If there is in force an arrangement that provides that a particular fishery is to be managed in accordance with the law of the State, the provisions of this Act apply to and in relation to the fishery.

(2) The provisions of this Act do not apply to or in relation to that fishery—

(a) in respect of foreign boats, operations on or from foreign boats, or persons on foreign boats, in Commonwealth proclaimed waters; or

(b) in relation to matters that occurred in or in relation to Commonwealth proclaimed waters before the arrangement took effect.

21 Functions of Joint Authority

(1) If in respect of a fishery there is in force an arrangement under which a Joint Authority has the management of the fishery and the fishery is to be managed in accordance with the law of the State, the Joint Authority has the functions of—

(a) keeping constantly under consideration the condition of the fishery;

(b) formulating policies and plans for the good management of the fishery;

(c) carrying out management measures in respect of the fishery;

(d) exercising the powers conferred on it by this Act;

(e) co-operating and consulting with other authorities (including other Joint Authorities) in matters of common concern.

(2) A Joint Authority has the following objectives in the performance of its functions under subsection (1)—

(a) ensuring, through proper conservation, preservation and fisheries management measures, that the living resources of the waters to which this Act applies are not endangered or over exploited; and

(b) achieving the optimum utilisation and equitable distribution of those resources.

22 Joint Authority to exercise certain powers instead of Minister

(1) Subject to this section, a licence or permit granted, issued, renewed or made under this Act does not authorise the doing of any act or thing in or in relation to a Joint Authority fishery.

S. 22(2) amended by No. 68/2016 s. 52.

(2) In respect of a Joint Authority fishery that is to be managed in accordance with the law of the State, the powers conferred before or after the commencement of this Part on the Minister, the Secretary or the Victorian Fisheries Authority (including powers with respect to the issue, renewal, cancellation and suspension of licences or permits) are exercisable by the Joint Authority to the exclusion of the Minister, the Secretary or the Victorian Fisheries Authority.

S. 22(3) amended by No. 5/1997
s. 50(1)(e).

(3) A licence or permit granted under this Act by a Joint Authority must contain such conditions that it does not apply in relation to a Joint Authority fishery or Joint Authority fisheries not managed by that Joint Authority.

S. 22(4) amended by No. 5/1997
s. 50(1)(f).

(4) A Joint Authority may vary a licence or permit under this Act (including such a licence or permit granted, issued or renewed by that Joint Authority or another Joint Authority) so as to extend the operation of the licence or permit to matters to which the powers of the Joint Authority under this Act are applicable.

S. 22(5) amended by No. 5/1997
s. 50(1)(g)(i).

(5) If such a variation is made—

S. 22(5)(a) amended by No. 5/1997
s. 50(1)(g)(ii).

(a) the variation ceases to have effect if the licence or permit ceases to have effect; and

S. 22(5)(b) amended by No. 5/1997
s. 50(1)(g)(ii).

(b) the Joint Authority may suspend or cancel the variation as if it were a licence or permit granted by the Joint Authority.

S. 22(6) substituted by No. 5/1997
s. 50(3).

(6) Subject to sections 25(1)(b) and (c), on a fishery becoming a Joint Authority fishery, any regulation, fisheries notice, Order in Council, notice, declaration, order, or Ministerial direction that applies to the fishery under this Act ceases to apply to the fishery.

S. 22(7) substituted by No. 5/1997
s. 50(3).

(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.

23 Provisions to apply to Joint Authority fishery

The provisions of this Act relating to offences and enforcement and legal proceedings—

(a) extend and apply in respect of anything done to or in relation to fish to which a Joint Authority fishery relates or otherwise in relation to the Joint Authority fishery;

(b) are to be read and construed—

S. 23(b)(i) amended by No. 5/1997
s. 50(1)(h).

(i) as if any reference in this Act to a licence or permit were a reference to a licence or permit granted or made by the relevant Joint Authority in relation to the person alleged to have committed the offence or the boat alleged to have been used in the commission of the offence;

(ii) as if any reference in this Act to fish were a reference to fish to which the Joint Authority fishery relates.

24 Statement in an arrangement to be sufficient evidence

For the purposes of this Act, a statement in an arrangement to the effect that specified waters—

(a) in the case of an arrangement to which the Commonwealth and the State are the only parties, are waters adjacent to the State; and

(b) in the case of any other arrangement, are waters adjacent to the States that are parties to the arrangement or are waters adjacent to a specified State or States—

is sufficient evidence of the facts stated.

25 Regulations and notices

(1) If a Joint Authority is to manage a fishery in accordance with the law of the State, the Governor in Council may, for the purpose of giving effect to a decision of the Joint Authority—

(a) make regulations for the management of the fishery;

(b) make a regulation applying to the fishery a regulation made otherwise than pursuant to this section;

(c) amend a regulation made otherwise than pursuant to this section so that it is expressed to apply to the fishery, whether or not it applies to any other fishery.

(2) The Minister may by a fisheries notice provide for any matter referred to in section 152 for the purpose of giving effect to a decision of the Joint Authority.

(3) The power conferred on the Governor in Council to make regulations otherwise than under subsection (1) does not extend to the making of a regulation of a kind referred to in subsection (1)(a) or (1)(b) or the amendment of a regulation in the manner referred to in subsection (1)(c).

(4) If a regulation or fisheries notice affecting a fishery that is to be managed by a Joint Authority is expressed to be made pursuant to this section, it is conclusively presumed that it was made for the purpose of giving effect to a decision of the Joint Authority.

Division 2—State–State management

26 Power to enter into agreements

(1) The Minister may do any thing which in his or her opinion is necessary or convenient to ensure the co-operation of the government of any other State in carrying out the purposes of this Act.

(2) Without limiting subsection (1), the Minister may enter into agreements with a Minister of the Crown in right of any other State or other States or with any authority constituted under a law of any other State, including without limiting the generality of this subsection agreements for—

(a) fisheries adjustment schemes and funding of such schemes; and

(b) fisheries research schemes and funding of such schemes.

S. 26(3) amended by No. 68/2016 s. 53.

(3) Despite anything to the contrary in this Act, the Secretary or the Victorian Fisheries Authority—

S. 26(3)(a) amended by No. 68/2016 s. 53.

(a) must perform any duties or functions required to be performed by the Secretary or the Victorian Fisheries Authority; and

S. 26(3)(b) amended by No. 68/2016 s. 53.

(b) may exercise any powers and perform any functions conferred on or delegated to the Secretary or the Victorian Fisheries Authority—

by or under this section or an agreement made under this section.

27 Powers and functions

(1) For the purposes of this Division, the Minister may exercise any power and perform any function conferred on the Minister under Division 1 of this Part as if the Commonwealth Act applied under this Division.

(2) Sections 14 to 25 of this Act apply in respect of arrangements under this Division with such modifications as are necessary.

Part 3—Management plans

28 Management plans

(1) The Minister may declare a management plan by notice published in the Government Gazette.

(2) The Minister may prepare and issue guidelines for or with respect to the preparation of management plans by notice published in the Government Gazette.

(3) A management plan must be prepared in respect of each fishery for which the Minister declares by notice published in the Government Gazette that a fishery management plan is to be prepared.

(4) A management plan may be prepared for any noxious aquatic species declared under section 75.

(5) A management plan must be prepared in respect of a fisheries reserve as soon as possible after the fisheries reserve is declared under section 88.

(6) A management plan must—

(a) be consistent with the objectives of this Act;

S. 28(6)(aa) inserted by No. 108/2003 s. 25.

(aa) be consistent with any guidelines issued under subsection (2);

(b) include the management objectives of the plan;

(c) specify the management tools and other measures to be used to achieve the management objectives;

(d) include guidelines for the criteria to be used in respect of the issue of licences and permits and in respect of the renewal, variation or transfer of licences;

(e) as far as is known, identify critical components of the ecosystem relevant to the plan and current or potential threats to those components and existing or proposed preventative measures;

(f) specify performance indicators, targets and monitoring methods;

(g) as far as relevant and practicable, identify in respect of the fishery, declared noxious aquatic species or fisheries reserve, the biological, ecological, social and economic factors relevant to its management including—

(i) its current status, human uses and economic value;

(ii) measures to minimise its impact on non-target species and the environment;

(iii) research needs and priorities;

(iv) the resources required to implement the plan.

(7) A management plan may—

(a) specify the manner in which fishing capacity is to be measured and the fishing capacity so measured;

(b) specify the duration of the management plan;

(c) specify the procedures or conditions for review of the plan;

S. 28(7)(ca) inserted by No. 35/2009 s. 53.

(ca) specify that licences of a class of access licence may be issued for a period of up to 5 years;

S. 28(7)(cb) inserted by No. 40/2019 s. 12.

(cb) specify a fish harvest strategy, including actions to be taken if fish stocks fall below specified levels;

(d) include any other relevant matters.

S. 28(8) inserted by No. 5/1997
s. 8.

(8) Guidelines included in a management plan under subsection (6)(d) may include criteria designed to reduce the number of licences or permits that are held in respect of a fishery.

29 Contents of fishery management plan

(1) The purpose of a fishery management plan is to specify policies and strategies for the management of the fishery to which the plan applies on an ecologically sustainable basis having regard to relevant commercial, recreational, traditional and non-consumptive uses.

(2) A fishery management plan must—

(b) define the fishery to which it relates;

(c) specify the objectives, state, status or use of the fishery.

(3) A fishery management plan may include the matters specified in section 28(7).

30 Contents of fisheries reserve management plan

(1) A fisheries reserve management plan must—

(b) be consistent with the Order in Council declaring the fisheries reserve.

(2) A fisheries reserve management plan may in addition to the matters specified in section 28(7)—

(a) specify guidelines regulating or restricting activities in the fisheries reserve;

(b) specify standard terms and conditions subject to which permits may be issued in respect of activities in the fisheries reserve.

31 Contents of declared noxious aquatic species management plan

A declared noxious aquatic species management plan must—

(b) include a description of the species and its distinguishing characteristics and habitat requirements;

(c) identify the effects or likely effects of the species on Victorian fisheries.

S. 32 (Heading) inserted by No. 35/2009
s. 29(1).

32 Submissions on management plan

S. 32(1) amended by No. 29/2011 s. 3(Sch. 1 item 39.1).

(1) Before the Minister declares a management plan, the Minister must—

S. 32(1)(a) repealed by No. 35/2009
s. 29(2).

(b) publish a notice of intention to declare a management plan in a newspaper circulating generally in Victoria at least 60 days before the declaration is made.

(2) The notice of intention must specify—

(a) the reasons for the proposed declaration;

(b) the fishery, fisheries reserve or declared noxious aquatic species in respect of which the declaration is proposed;

(c) where a copy of the draft management plan may be examined and obtained;

(d) the procedures for making public comments and considering submissions.

S. 32(3) amended by No. 68/2016 s. 54.

(3) The Victorian Fisheries Authority must consider all submissions received under this section.

S. 32(4) amended by No. 68/2016 s. 54.

(4) The Victorian Fisheries Authority must submit a report on the submissions to the Minister.

(5) The Minister may appoint a person or persons as a review panel to review the submissions and the draft management plan and report to the Minister.

S. 32(6) repealed by No. 35/2009
s. 29(2).

33 Amendment of management plan

(1) The Minister may amend a management plan by notice published in the Government Gazette.

S. 33(2) amended by No. 35/2009
s. 30.

(2) If the Minister is satisfied that the proposed amendment does not substantially alter the management plan, the Minister may make the amendment.

(3) If the Minister is satisfied that the proposed amendment does substantially alter the management plan, the Minister must before making the amendment comply with section 32 as if the proposed amendment were a proposed declaration.

34 Duty of public authorities

(1) A public authority must have regard to any relevant management plan when performing its functions and exercising its powers.

S. 34(2) amended by No. 68/2016 s. 55.

(2) If a public authority proposes to take any action that is inconsistent with a management plan, the public authority must consult the Victorian Fisheries Authority in writing at least 28 days before the action is to be taken.

(3) After complying with subsection (2), a public authority may take such action if there is no reasonable alternative means of performing its functions or exercising its powers.

35 Inconsistency

(1) A management plan must not be inconsistent with any regulation or fisheries notice.

(2) A management plan is inoperative to the extent that it does not comply with subsection (1).

S. 35(3) repealed by No. 5/1997
s. 17.

Pt 4
(Heading and ss 36–68) substituted as Pt 4
(Heading and ss 36–68A) by No. 5/1997

Part 4—Regulation of fisheries

Division 1—Offences, licences, general permits and authorisations

S. 36 substituted by No. 5/1997

36 Offences relating to commercial fishing activities

(a) take fish for sale; or

(b) take fishing bait for sale; or

(c) use commercial fishing equipment—

1. 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.

1. 40 penalty units.

(3) A person may do any of the things referred to in subsection (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

S. 37 substituted by No. 5/1997

37 Offences relating to commercial abalone equipment

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

(b) possess commercial abalone equipment and more than twice the catch limit for abalone—

(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

S. 38 substituted by No. 5/1997

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;

S. 38(1)(ba) inserted by No. 51/2007
s. 4, substituted by No. 35/2009 s. 54(1).

(ba) possess, process or sell fish of a specified priority species;

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

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

(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 subsection.

S. 38(1A) inserted by No. 60/2005 s. 29.

(1A) An access licence does not authorise the carrying out of any activity specified in subsection (1) in any national park, wilderness park or State park (within the meaning of the National Parks Act 1975) or any reference area (within the meaning of the Reference Areas Act 1978).

S. 38(1B) inserted by No. 60/2005 s. 29.

(1B) Subsection (1A) does not apply to any access licence in force immediately before 7 March 2005, to the extent of any entitlements under that licence that were in force at that time.

S. 38(2) amended by No. 68/2016 s. 56(1).

(2) The Victorian Fisheries Authority may issue an access licence of a particular class to a person.

S. 38(3) amended by No. 68/2016 s. 56(2).

(3) An access licence continues in force for the period specified in the licence by the Victorian Fisheries Authority unless it is sooner cancelled or suspended under this Act.

S. 38(4) substituted by No. 35/2009 s. 54(2), amended by No. 68/2016 s. 56(1).

(4) The Victorian Fisheries Authority, for the purposes of subsection (3), may specify—

(a) a period of up to 5 years for an access licence of a specified class of access licence if—

(i) there is an Order in Council declaring that access licences of that specified class may be issued for a period of up to 5 years; or

(ii) a management plan specifies that access licences of that specified class may be issued for a period of up to 5 years; or

(b) in any other case, a period of up to one year.

S. 38(4A) inserted by No. 35/2009 s. 54(2).

(4A) For the purposes of subsection (4), the Governor in Council may, by Order in Council, declare that licences of a class of access licence may be issued for a period of up to 5 years.

S. 38(5) amended by Nos 108/2003 s. 50(a), 68/2016 s. 56(2).

(5) An access licence may not be cancelled by the Victorian Fisheries Authority except in accordance with section 58, 61(1)(c) 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;

S. 38(7)(c) amended by No. 35/2019 s. 8(1).

(c) subject to paragraph (d), the licence must be transferred to an eligible person in accordance with section 56 within
one 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;

S. 38(7)(d) amended by Nos 68/2016 s. 56(2), 35/2019 s. 8(1).

(d) the Victorian Fisheries Authority, 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 one year.

(8) For the purposes of subsection (7) personal representative has the same meaning as it has in section 5 of the Administration and Probate Act 1958.

S. 39 substituted by No. 5/1997

39 Restrictions concerning access licences

(1) The holder of an access licence of a class specified by the regulations for the purposes of this subsection 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.

(2) The holder of an access licence of a class specified by the regulations for the purposes of this subsection must not use the services of any other person to carry out any of the fishing activities authorised by the licence unless—

S. 39(2)(a) amended by No. 68/2016 s. 57.

(a) the other person is, in the opinion of the Victorian Fisheries Authority, a fit and proper person to carry out those activities; and

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

(3) The holder of an access licence of a class specified by the regulations for the purposes of this subsection 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.

S. 40 (Heading) inserted by No. 69/2004 s. 3(1)(a).

S. 40 substituted by No. 5/1997

40 Offence to receive or sell any fish

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

(b) receive for sale any other fish;

S. 40(1)(c) amended by No. 69/2004 s. 3(1)(b).

(c) sell any fish of a priority species—

S. 40(2)(a) amended by No. 35/2009 s. 55.

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

S. 40(2)(b) amended by No. 35/2009 s. 55.

(b) is authorised by that fish receiver licence to do that thing; and

S. 41 (Heading) inserted by No. 35/2009 s. 56(1).

S. 41 substituted by No. 5/1997

41 Fish receiver licences

S. 41(1) amended by No. 35/2009 s. 56(2).

(1) The regulations may create classes of fish receiver licences and may specify that the holder of a fish receiver 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;

S. 41(1)(c) amended by No. 69/2004 s. 3(2), substituted by No. 35/2009 s. 56(3).

(c) possess, process or sell any fish of a specified priority species.

S. 41(2) amended by Nos 35/2009 s. 56(2)(b), 68/2016 s. 58(1).

(2) The Victorian Fisheries Authority may issue a fish receiver licence of a particular class to a person.

S. 41(3) amended by Nos 35/2009 s. 56(2)(b), 68/2016 s. 58(2).

(3) A fish receiver licence continues in force for the period specified in the licence by the Victorian Fisheries Authority unless it is sooner cancelled or suspended under this Act.

S. 42 substituted by No. 5/1997

42 Offences relating to aquaculture and live fish etc.

(a) 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 for sale or other commercial purposes;

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

S. 42(1)(ba) inserted by No. 51/2007
s. 5.

(ba) stock fish into protected waters; or

(c) use any commercial aquaculture equipment—

1. 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.

(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

S. 42(2A) inserted by No. 80/2000 s. 4.

(2A) A person may do any of the things referred to in subsection (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

(3) The regulations may exclude specified fish or fishing bait from all or any of the provisions of subsection (1).

(4) If specified fish or fishing bait are excluded from a provision of subsection (1), a person may do the thing that would otherwise be prohibited by that provision in respect of that fish or fishing bait.

S. 43 substituted by No. 5/1997

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—

(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;

S. 43(1)(ba) inserted by No. 51/2007
s. 6(1)(a).

(ba) stock fish into protected waters;

S. 43(1)(c) amended by No. 51/2007
s. 6(1)(b).

(c) use specified commercial aquaculture equipment or use commercial aquaculture equipment generally;

S. 43(1)(d) inserted by No. 51/2007
s. 6(1)(c).

(d) possess specified commercial aquaculture equipment or possess commercial aquaculture equipment generally;

S. 43(1)(e) inserted by No. 51/2007
s. 6(1)(c).

(e) engage one or more people to do one or more of the things listed in this subsection.

S. 43(1AA) inserted by No. 60/2005 s. 30.

(1AA) An aquaculture licence does not authorise the carrying out of any activity specified in subsection (1) in any national park, wilderness park or State park (within the meaning of the National Parks Act 1975) or any reference area (within the meaning of the Reference Areas Act 1978).

S. 43(1AB) inserted by No. 60/2005 s. 30.

(1AB) Subsection (1AA) does not apply to any aquaculture licence in force immediately before 7 March 2005, to the extent of any entitlements under that licence that were in force at that time.

S. 43(1A) inserted by No. 108/2003 s. 26, amended by No. 51/2007
s. 6(2).

(1A) The Minister may, by order published in the Government Gazette, create classes of aquaculture licences to give effect to a management plan and may specify that the holder of an aquaculture licence of a particular class may do one or more of the things listed in subsections (1)(a) to (1)(e) in the reserve to which the management plan applies.

S. 43(1B) inserted by No. 108/2003 s. 26.

(1B) The Minister may only create a class of aquaculture licence under subsection (1A) if the draft management plan for the reserve states that the creation of that class of licence will be necessary to give effect to the plan.

S. 43(1C) inserted by No. 108/2003 s. 26.

(1C) A licence of a class of aquaculture licence created under subsection (1A) is subject to the same fees and levies as apply to a licence of a specified class of aquaculture licence created by the regulations.

S. 43(1D) inserted by No. 108/2003 s. 26.

(1D) In creating a class of aquaculture licence under subsection (1A), the Minister must, for the purposes of subsection (1C), specify a class of aquaculture licence created by the regulations.

S. 43(2) amended by No. 68/2016 s. 59(1).

(2) The Victorian Fisheries Authority may issue an aquaculture licence of a particular class to a person.

S. 43(3) amended by No. 68/2016 s. 59(2).

(3) An aquaculture licence continues in force for the period specified on the licence by the Victorian Fisheries Authority unless it is sooner cancelled or suspended under this Act.

S. 43(4) amended by Nos 51/2007
s. 6(3), 35/2009 s. 57.

(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, possess, store, process or sell that fish or fishing bait.

S. 44 substituted by No. 5/1997
s. 9, amended by No. 17/2002 s. 3(2) (ILA s. 39B(1)).

44 Offences relating to recreational fishing

S. 44(1) amended by No. 17/2002 s. 3(1), substituted by No. 51/2007 s. 7.

(a) take or attempt to take fish from marine waters or inland waters; or

(b) use or possess recreational fishing equipment in, on or next to Victorian waters—

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

1. If the offence involves the use of a recreational hoop net: 10 penalty units.

In any other case: 5 penalty units.

S. 44(2) inserted by No. 17/2002 s. 3(2), substituted by No. 51/2007 s. 7.

(2) A person must comply with subsection (3) if the person claims to be the holder of a recreational fishery licence and the person—

(a) takes or attempts to take fish from marine waters or inland waters; or

(b) uses or possesses recreational fishing equipment in, on or next to Victorian waters.

1. 5 penalty units.

S. 44(3) inserted by No. 17/2002 s. 3(2), amended by No. 37/2014 s. 10(Sch. item 65.2(a)).

(3) An authorised officer or police officer may require a person to whom subsection (2) applies—

(a) to produce the licence for inspection on demand immediately; or

S. 44(3)(b) amended by No. 37/2014 s. 10(Sch. item 65.2(a)).

(b) if the person does not have the licence in his or her possession, to produce the licence at a time within 7 days of the demand at a place stipulated by the authorised officer or police officer.

S. 44(4) inserted by No. 17/2002 s. 3(2), amended by No. 37/2014 s. 10(Sch. item 65.2(b)).

(4) If an authorised officer or a police officer directs a person to whom subsection (2) applies to produce a licence at a subsequent time and place, it is a sufficient compliance with the direction if the person sends by post to the authorised officer or police officer within 7 days after first returning to his or her place of residence after the demand is made—

(a) the licence and a stamped addressed envelope for the return of the licence; or

S. 44(4)(b) amended by Nos 69/2009 s. 54(Sch. Pt 2 item 22), 6/2018 s. 68(Sch. 2 item 56.1).

(b) a copy of the licence certified to be a true copy by an authorised certifier within the meaning of the Oaths and Affirmations Act 2018.

S. 44(5) inserted by No. 17/2002 s. 3(2), amended by Nos 37/2014 s. 10(Sch. item 65.2(c)), 6/2018 s. 68(Sch. 2 item 56.2).

(5) The statement on oath or by affirmation of an authorised officer or a police officer that the holder of a licence failed to produce on demand on a specified day the licence and, having been directed to produce the licence to the authorised officer or police officer within 7 days thereafter, failed to produce the licence or to send by post the licence or a certified copy of the licence, is evidence until the contrary is proven, that the person was not the holder of a recreational fishery licence under the Act on that specified day.

S. 45 substituted by No. 5/1997

45 Recreational fishery licences

S. 45(1) amended by No. 17/2002 s. 3(3), substituted by No. 51/2007 s. 8.

(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 marine waters or inland waters;

(b) use or possess recreational fishing equipment in, on or next to Victorian waters.

S. 45(2) amended by No. 68/2016 s. 60(1).

(2) The Victorian Fisheries Authority, or a person authorised by the Victorian Fisheries Authority, may issue a recreational fishery licence of a particular class to a person.

S. 45(3) amended by No. 68/2016 s. 60(2).

(3) A recreational fishery licence continues in force for the period specified on the licence by the Victorian Fisheries Authority.

S. 46 substituted by No. 5/1997

46 Group recreational fishery licence

S. 46(1) amended by No. 68/2016 s. 61.

(1) The Victorian Fisheries Authority may issue a group recreational fishery licence to a representative of a group.

S. 46(2) amended by No. 68/2016 s. 61.

(2) The Victorian Fisheries Authority 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.

S. 46(3) amended by No. 68/2016 s. 61.

(3) The Victorian Fisheries Authority 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.

S. 46(5) amended by No. 68/2016 s. 61.

(5) The Victorian Fisheries Authority may cancel a group recreational fishery licence at any time and without notice.

S. 47 substituted by 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.

S. 47(2) repealed by No. 17/2002 s. 3(4).

S. 48 substituted by No. 5/1997
s. 9, repealed by No. 17/2002 s. 4.

S. 49 substituted by No. 5/1997

49 General permit

S. 49(1) amended by No. 68/2016 s. 62(1).

(1) The Victorian Fisheries Authority may issue a general permit to a person.

S. 49(2) amended by No. 68/2016 s. 62(1).

(2) The Victorian Fisheries Authority may authorise the holder of the permit to do one or more of the following—

S. 49(2)(a) amended by No. 51/2007
s. 9(1)(a).

(a) to take or possess fish for research, education, fish management, aquaculture, compliance or scientific purposes; or

S. 49(2)(b) amended by No. 51/2007
s. 9(1)(a).

(b) to take or possess 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

S. 49(2)(f) amended by No. 80/2000 s. 5, substituted by No. 51/2007 s. 9(2).

(f) to use or possess specified commercial abalone equipment, commercial fishing equipment, commercial aquaculture equipment or recreational fishing equipment; or

S. 49(2)(g) inserted by No. 80/2000 s. 5, amended by No. 51/2007
s. 9(1)(b)(i).

(g) for commercial purposes—

(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;

S. 49(2)(g)(ii) amended by No. 17/2002 s. 5(1), substituted by No. 51/2007
s. 9(1)(b)(ii).

(ii) to hatch, rear, breed, display, grow or sell fish or fishing bait; or

S. 49(2)(h) inserted by No. 17/2002 s. 5(2). amended by No. 51/2007
s. 9(1)(c).

(h) to take or possess fish (in areas where recreational fishing is authorised under this Act) for a specified indigenous cultural ceremony or event; or

S. 49(2)(i) inserted by No. 51/2007

(i) to sell any fish of a specified priority species; or

S. 49(2)(j) inserted by No. 51/2007

(j) to take or possess more fish than the catch limit for that species of fish; or

S. 49(2)(k) inserted by No. 51/2007
s. 9(1)(d), amended by No. 40/2019 s. 13(1).

(k) to take or possess fish that are less than the minimum size, or that are more than the maximum size, for that species of fish; or

S. 49(2)(l) inserted by No. 51/2007

(l) to take fish of a specified species of fish during the closed season for that species of fish; or

S. 49(2)(m) inserted by No. 51/2007

(m) to take, land, process, sell or possess fish of a specified species of fish that is prohibited from being taken, landed, processed, sold or possessed—

(i) absolutely or during a specified period; or

(ii) in any waters or specified waters; or

S. 49(2)(n) inserted by No. 51/2007

(n) to carry out an activity in a fishery if the activity is not inconsistent with any regulations, management plan or Ministerial direction.

S. 49(2A) inserted by No. 60/2005 s. 31.

(2A) A general permit does not authorise the carrying out of any activity—

(a) specified in subsection (2)(b), (c), (d), (e), (f) and (g); and

(b) specified in subsection (2)(a), to the extent that it applies to aquaculture—

in any national park, wilderness park or State park (within the meaning of the National Parks Act 1975) or any reference area (within the meaning of the Reference Areas Act 1978).

S. 49(2B) inserted by No. 60/2005 s. 31.

(2B) Subsection (2A) does not apply to any general permit in force immediately before 7 March 2005, to the extent of any entitlements under that permit that were in force at that time.

S. 49(3) amended by No. 68/2016 s. 62(2).

(3) A general permit continues in force for the period specified on the permit by the Victorian Fisheries Authority, unless it is sooner cancelled under this Act.

S. 49(4) amended by No. 68/2016 s. 62(3).

(4) The Victorian Fisheries Authority may specify a period of up to 3 years for the purposes of subsection (3).

S. 49(5) amended by No. 68/2016 s. 62(3)(4).

(5) The Victorian Fisheries Authority must not issue a general permit to a person unless the Victorian Fisheries Authority is satisfied that the person is a fit and proper person to hold the permit.

S. 49(6) amended by No. 68/2016 s. 62(4).

(6) A general permit is not renewable, but the Victorian Fisheries Authority 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.

S. 49(8) amended by No. 68/2016 s. 62(5).

(8) The Victorian Fisheries Authority may cancel a general permit at any time and without notice.

S. 49(9) inserted by No. 40/2019 s. 13(2).

(9) If the Victorian Fisheries Authority has cancelled a general permit under subsection (8) on the ground that the holder of the general permit has ceased to be a fit and proper person to hold the general permit, the Victorian Fisheries Authority may specify a time not exceeding 7 years within which the same person may not apply for the issue or transfer of a fishery licence, or the issue of a permit, under this Act.

S. 50 substituted by No. 5/1997

50 Special provisions concerning general permits for developing fisheries

S. 50(1) amended by No. 68/2016 s. 63.

(1) The Victorian Fisheries Authority 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.

S. 50A inserted by No. 5/1997

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 take fish from any waters that are, owned or vested in a water authority.

S. 50A(2) substituted by No. 17/2012 s. 86.

(2) In this section, water authority means an Authority within the meaning of the Water Act 1989 with a function under Part 8 or 11 of that Act.

S. 50B inserted by No. 5/1997

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

S. 51 substituted by No. 5/1997

51 Issue of fishery licences

S. 51(1) amended by No. 68/2016 s. 64(1).

(1) Subject to this Act, the Victorian Fisheries Authority 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.

S. 51(2) amended by No. 68/2016 s. 64(1).

(2) An application for a fishery licence must be made in the form required by the Victorian Fisheries Authority.

S. 51(3) amended by No. 68/2016 s. 64(1).

(3) In considering whether to issue a fishery licence to a person, the Victorian Fisheries Authority must also have regard to any relevant recommendations of the Commercial Fisheries Licensing Panel.

S. 51(3A) inserted by No. 108/2003 s. 29(2), amended by No. 68/2016 s. 64(1).

(3A) Despite anything to the contrary in any law, the Victorian Fisheries Authority may only issue an access licence or an aquaculture licence to an individual, a single corporation or a co‑operative—the Secretary must refuse to issue such a licence to a partnership or a consortium.

S. 51(3B) inserted by No. 108/2003 s. 29(2), amended by No. 68/2016 s. 64(1).

(3B) Despite anything to the contrary in any law, the Victorian Fisheries Authority may only issue an access licence or an aquaculture licence to an individual who is an Australian resident.

S. 51(3C) inserted by No. 58/2005 s. 11, amended by Nos 35/2009 s. 58(1), 68/2016 s. 64(1).

(3C) Despite anything to the contrary in any law, the Victorian Fisheries Authority may only issue a fish receiver licence to an individual, a single corporation or a co‑operative.

S. 51(3D) inserted by No. 58/2005 s. 11, amended by Nos 35/2009 s. 58(1), 68/2016 s. 64(2).

(3D) The Victorian Fisheries Authority must refuse to issue a fish receiver licence to a partnership or a consortium.

S. 51(4) amended by No. 68/2016 s. 64.

(4) The Victorian Fisheries Authority must refuse to issue a fishery licence if the Victorian Fisheries Authority 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

S. 51(4)(c) substituted by No. 35/2009 s. 58(2).

(c) the applicant has not satisfied the Secretary that he or she is a fit and proper person to hold the fishery licence; or

(d) the issue of the fishery licence would be inconsistent with an intergovernmental agreement or arrangement; or

(e) any other ground prescribed for the purposes of this subsection applies.

S. 51(4A) inserted by No. 108/2003 s. 28.

(4A) In the case of a licence that the Minister has determined under section 51A is to be publicly sold—

S. 51(4A)(a) amended by No. 68/2016 s. 64(1).

(a) the Victorian Fisheries Authority may only issue the licence to the person who was the successful party under the sale process; and

S. 51(4A)(b) amended by No. 68/2016 s. 64(1).

(b) the Victorian Fisheries Authority may only issue the licence to that person if there are no grounds under subsection (4) to refuse to issue the licence.

S. 51(4B) inserted by No. 108/2003 s. 28.

(4B) For the purposes of subsection (4A), the successful party under the sale process is the first person who pays for the licence under the terms of the sale who is also eligible to be issued the licence under subsection (4A)(b).

S. 51(5) amended by No. 68/2016 s. 64(1).

(5) If there is no relevant management plan, the Victorian Fisheries Authority may refuse to issue a fishery licence if the Victorian Fisheries Authority considers that the issue of the fishery licence would be harmful to the welfare of a fishery.

S. 51(6) amended by No. 35/2019 s. 8(2).

(6) If a licence is issued for a period of less than one 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 subsection (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) Subsections (6) and (7) also apply to any levy that is a fixed amount.

(9) Subsections (4), (5), (6), (7) and (8) do not apply to recreational fishery licences.

S. 51A inserted by No. 108/2003 s. 27.

51A Minister may determine that licences be publicly sold

S. 51A(1) amended by No. 68/2016 s. 65.

(1) This section applies if the Victorian Fisheries Authority proposes—

(a) to issue a new licence (other than a recreational fishery licence); or

(b) to re-issue a licence that has been surrendered or cancelled, or that has otherwise become available.

(2) The Minister may determine that the licence is to be publicly sold.

S. 52 substituted by No. 5/1997
s. 9, amended by No. 108/2003 s. 31 (ILA s. 39B(1)).

52 Conditions of fishery licences and permits

(1) In addition to any conditions that are imposed by this Act, a fishery licence or a permit is subject to—

S. 52(1)(a) amended by No. 68/2016 s. 66.

(a) any conditions that the Victorian Fisheries Authority 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.

S. 52(2) inserted by No. 108/2003 s. 31, amended by No. 68/2016 s. 66.

(2) In issuing documentary evidence of a licence (other than a recreational fishery licence) or a quota allocation entitlement, the Victorian Fisheries Authority must ensure, to the maximum extent that is practicable, that there is displayed on, or attached to, the document the conditions that apply to the licence or entitlement (including those imposed directly by this Act and by the regulations).

S. 52(3) inserted by No. 108/2003 s. 31.

(3) A failure to comply with subsection (2) does not affect the validity of the licence or the entitlement nor does it absolve any person from the need to comply with any applicable condition of the licence or entitlement (even if that condition is not displayed on, or attached to, the document evidencing the licence or entitlement).

S. 53 substituted by No. 5/1997

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.

(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.

S. 53(2) amended by No. 35/2009 s. 59(a).

(2) For the purposes of subsection (1), if a person who does any thing on behalf of the holder of a fishery licence or a permit does not comply with any condition to which the licence or permit is subject in doing that thing, the holder of the licence or permit is deemed to have failed to comply with that condition.

S. 53(3) amended by No. 35/2009 s. 59(b).

(3) Subsection (2) does not apply if the holder of the licence or permit can prove—

S. 53(3)(a) substituted by No. 108/2003 s. 14, amended by No. 35/2009 s. 59(b).

(a) that, at the time the offence was committed, there was in force a written agreement between him or her and the person under which the person agreed to comply with all relevant conditions to which the licence or permit was subject and all other relevant requirements of this Act and the regulations; and

S. 53(3)(b) substituted by No. 108/2003 s. 14.

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

S. 53(3)(c) inserted by No. 108/2003 s. 14, substituted by No. 40/2019 s. 14.

(c) that the holder did not in any way assist, encourage or direct the person to fail to comply with the condition.

S. 53(4) amended by No. 35/2009 s. 59(c).

(4) A person who does any thing on behalf of the holder of a licence or a permit must comply with any condition to which the licence or permit is subject in doing that thing.

(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.

Note to s. 53(4) inserted by No. 108/2003 s. 19.

If a person is convicted under subsection (4), section 128A enables the court to prohibit the person convicted from acting on behalf of certain classes of licence holders in certain cases.

S. 54 substituted by No. 5/1997

54 Changes to licence or permit conditions

S. 54(1) amended by Nos 17/2002 s. 6(1), 68/2016 s. 67(1).

(1) Subject to subsection (1B), the Victorian Fisheries Authority may at any time—

(a) vary a fishery licence or a permit; or

S. 54(1)(b) amended by No. 80/2000 s. 6(1).

(b) vary or revoke a condition imposed by her or him or impose a new condition on a fishery licence or a permit; or

S. 54(1)(c) inserted by No. 80/2000 s. 6(1).

(c) vary a class of fishery licence; or

S. 54(1)(d) inserted by No. 80/2000 s. 6(1), amended by No. 68/2016 s. 67(1).

(d) vary or revoke a condition imposed by the Victorian Fisheries Authority or impose a new condition on a class of fishery licence.

S. 54(1A) inserted by No. 80/2000 s. 6(2), amended by No. 68/2016 s. 67(2).

(1A) The Victorian Fisheries Authority may only exercise a power conferred by subsection (1)(c) or (d) to give effect to a management plan declared under section 28, or to any change to such a plan.

S. 54(1B) inserted by No. 17/2002 s. 6(2), amended by No. 68/2016 s. 67(2).

(1B) The Victorian Fisheries Authority must not vary—

(a) a fishery licence or a permit; or

(b) a condition on a fishery licence or permit; or

(c) a class of fishery licence; or

(d) a condition on a class of fishery licence—

if the variation would be inconsistent with any regulations, management plan or Ministerial direction.

S. 54(2) amended by No. 68/2016 s. 67(2).

(2) The Victorian Fisheries Authority may act under subsection (1)—

(a) on her or his own initiative; or

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

S. 54(3) amended by Nos 80/2000 s. 6(3), 68/2016 s. 67(3).

(3) Before acting on the Victorian Fisheries Authority's own initiative in respect of subsection (1)(a) or (b), the Victorian Fisheries Authority must give the person who holds the licence or permit written notice of the action that the Victorian Fisheries Authority proposes to take and must allow the person to make written representations about the intended action within 14 days.

S. 54(3A) inserted by No. 80/2000 s. 6(4), repealed by No. 35/2009 s. 31(1).

S. 54(4) amended by Nos 80/2000 s. 6(5), 35/2009 s. 31(2), 68/2016 s. 67(4).

(4) Subsection (3) does not apply if the Victorian Fisheries Authority 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.

S. 54(5) amended by No. 68/2016 s. 67(5).

(5) If the Victorian Fisheries Authority imposes, varies or revokes a condition of a licence or permit, the change has no effect until the Victorian Fisheries Authority notifies the holder of the licence or permit in writing of the change.

S. 54(6) amended by No. 68/2016 s. 67(6).

(6) The holder of a licence or permit must return the licence or permit to the Victorian Fisheries Authority within 10 days of being given notice that the Victorian Fisheries Authority has decided to change the licence or permit, unless he or she has a reasonable excuse for not doing so.

1. 5 penalty units.

S. 55 substituted by No. 5/1997

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 existence, unless the regulations state otherwise.

S. 56 (Heading) inserted by No. 35/2009 s. 60(1).

S. 56 substituted by No. 5/1997

56 Transfer of licences

(1) This section applies to a fishery licence that is transferable.

S. 56(2) amended by No. 68/2016 s. 68(1).

(2) The holder of the licence or a registered financial interest in the licence may, together with the proposed transferee, apply to the Victorian Fisheries Authority for the transfer of the licence to the transferee in accordance with the regulations.

S. 56(3) amended by Nos 35/2009 s. 60(2), 68/2016 s. 68(2)(a).

(3) The Victorian Fisheries Authority must grant an application for the transfer of the licence if—

S. 56(3)(a) amended by Nos 35/2009 s. 60(3)(a), 68/2016 s. 68(2)(b).

(a) the proposed transferee has satisfied the Victorian Fisheries Authority that he or she is a fit and proper person to hold the licence and satisfies any relevant eligibility criteria; and

S. 56(3)(b) amended by Nos 35/2009 s. 60(3)(b), 68/2016 s. 68(2)(b).

(b) the Victorian Fisheries Authority is satisfied that the licence is not subject to any action under sections 57 or 58; and

S. 56(3)(c) amended by Nos 35/2009 s. 60(3)(c), 68/2016 s. 68(2)(b).

(c) in the case of a licence to be transferred by the holder of the licence, the Victorian Fisheries Authority is satisfied that the holders of any registered financial interests in the licence consent to the transfer of the licence; and

S. 56(3)(d) amended by Nos 35/2009 s. 60(3)(d), 68/2016 s. 68(2)(c).

(d) in the case of a licence to be transferred by the holder of a registered financial interest, the Victorian Fisheries Authority is satisfied that—

S. 56(3)(d)(i) amended by No. 68/2016 s. 68(2)(c).

(i) the holder of the licence was, within 7 days of the Victorian Fisheries Authority receiving the application, given notice by the Victorian Fisheries Authority of the application to transfer the licence; and

(ii) any other holders of a registered financial interest in the licence consent to the transfer.

S. 56(4) amended by No. 68/2016 s. 68(3).

(4) The Victorian Fisheries Authority 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.

S. 56(5) amended by No. 68/2016 s. 68(4).

(5) In considering whether to transfer the licence, the Victorian Fisheries Authority must also have regard to any relevant recommendations of the Commercial Fisheries Licensing Panel.

S. 56(6) amended by No. 68/2016 s. 68(5).

(6) The Victorian Fisheries Authority may grant the application for the transfer subject to any conditions the Victorian Fisheries Authority thinks appropriate and that are not inconsistent with the regulations, Ministerial direction or a management plan.

S. 56(7) amended by No. 68/2016 s. 68(6).

(7) If the Victorian Fisheries Authority considers that the holder of the licence is not complying with any requirement applying to the licence under this Act, the Victorian Fisheries Authority may by notice in writing served on the holder defer the transfer of the licence until the holder satisfies the Victorian Fisheries Authority 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.

S. 56(8) amended by No. 68/2016 s. 68(7).

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

S. 56(8)(a) amended by No. 68/2009 s. 97(Sch. item 58.1).

(a) a charge-sheet charging 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

(ii) may result in the forfeiture of one or more individual quota units in respect of the licence; or

S. 56(8)(b)(iii) amended by No. 68/2016 s. 68(8).

(iii) would provide grounds for a finding by the Victorian Fisheries Authority 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 subsection (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.

S. 57 substituted by No. 5/1997

57 Certain licences may be renewed

S. 57(1) amended by Nos 35/2009 s. 61(3)(a), 68/2016 s. 69(1).

(1) The holder of an access licence, a fish receiver licence or any prescribed class of renewable licence may apply to the Victorian Fisheries Authority for the renewal of the licence in accordance with the regulations.

S. 57(1A) inserted by No. 35/2009 s. 61(1), amended by No. 68/2016 s. 69(1).

(1A) If an application for renewal of a licence is lodged before the licence expires, the licence continues in operation until the Victorian Fisheries Authority renews the licence or refuses to renew the licence.

S. 57(2) amended by No. 68/2016 s. 69(1).

(2) In considering whether to renew the licence, the Victorian Fisheries Authority must have regard to any relevant recommendations of the Commercial Fisheries Licensing Panel.

S. 57(3) amended by No. 68/2016 s. 69(1).

(3) Subject to this section, the Victorian Fisheries Authority must renew the licence for a further period if the licence holder has a record of compliance with this Act.

S. 57(4) amended by Nos 35/2009 s. 61(2)(a), 68/2016 s. 69(2).

(4) If the Victorian Fisheries Authority considers that the holder of the licence has—

S. 57(4)(a) amended by No. 35/2009 s. 61(2)(b).

(a) ceased to satisfy any relevant eligibility criteria; or

S. 57(4)(b) substituted by No. 35/2009 s. 61(2)(c), amended by No. 68/2016 s. 69(2).

(b) failed to satisfy the Victorian Fisheries Authority that he or she continues to be a fit and proper person to hold the licence; or

S. 57(4)(c) amended by Nos 35/2009 s. 61(2)(d), 68/2016 s. 69(2).

(c) ceased to be actively, substantially and regularly engaged in the activities authorised by the licence—

the Victorian Fisheries Authority 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.

S. 57(5) amended by No. 68/2016 s. 69(3).

(5) If the holder of the licence fails to show sufficient cause for renewing the licence, the Victorian Fisheries Authority may refuse to renew the licence.

S. 57(6) amended by Nos 35/2009 s. 61(3)(a), 68/2016 s. 69(4).

(6) The Victorian Fisheries Authority may refuse to renew a fish receiver licence if, in the opinion of the Victorian Fisheries Authority, the premises or place in respect of which the licence is issued is not appropriate for the activities authorised by the licence.

S. 57(7) amended by No. 68/2016 s. 69(5).

(7) If the Victorian Fisheries Authority refuses to renew a licence in accordance with this section, the licence is for the purposes of this Act deemed to have been cancelled.

S. 57(8) amended by No. 68/2016 s. 69(6).

(8) If the Victorian Fisheries Authority considers that the holder of the licence is not complying with any requirement applying to the licence by or under this Act, the Victorian Fisheries Authority may by notice in writing served on the holder defer the renewal of the licence until the licence holder satisfies the Victorian Fisheries Authority 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.

(9) A copy of any notice served on the holder of a licence in accordance with subsection (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 subsection (8), the licence is deemed as from the date of its expiry to have been suspended.

S. 57(11) amended by No. 68/2016 s. 69(7).

(11) The Victorian Fisheries Authority may defer the renewal of a licence while the licence is suspended by a court.

S. 57(12) inserted by No. 108/2003 s. 29(3) (as amended by No. 22/2004 s. 9(1)), amended by No. 68/2016 s. 69(8).

(12) Despite anything to the contrary in this section, the Victorian Fisheries Authority may not renew an access licence or an aquaculture licence unless the person who is to hold the renewed licence is an individual, a single corporation or a co-operative.

S. 57(13) inserted by No. 58/2005 s. 12, amended by Nos 35/2009 s. 61(3)(b), 68/2016 s. 69(8).

(13) Despite anything to the contrary in this section, the Victorian Fisheries Authority may not renew a fish receiver licence unless the person who is to hold the renewed licence is an individual, a single corporation or a co-operative.

S. 57(14) inserted by No. 35/2009 s. 61(4), amended by No. 68/2016 s. 69(9).

(14) The Victorian Fisheries Authority may refuse to renew a licence under this section because of the commission of an offence of a type referred to in section 128(1) by the holder of the licence despite a court deciding not to suspend or cancel the licence under that section on convicting or finding the holder guilty of that offence.

S. 57A inserted by No. 108/2003 s. 30 (as amended by No. 22/2004 s. 9(2)(a)-(d)).

57A Transitional provision concerning certain licences not held by one person

(a) on the date of commencement of section 30 of the Fisheries (Further Amendment) Act 2003 an access licence or an aquaculture licence is not held by an individual, a single corporation or a co-operative; and

(b) by the date the licence is due to expire, an individual, a single corporation or a co‑operative that holds the licence or that is a successor of a person who holds the licence, has not applied to the Secretary for the renewal of the licence in accordance with the regulations—

the licence is, by force of this section, suspended on the date the licence is due to expire.

(2) Despite anything in this Act to the contrary, a suspension under subsection (1) continues until either—

(a) an individual, a single corporation or a co‑operative that held the licence or that is a successor of a person who held the licence, immediately before it was suspended, applies to the Secretary for the renewal of the licence in accordance with the regulations and the Secretary renews the licence; or

(b) the expiry of 12 months from the date the suspension began—

(3) If the suspension of a licence ends under subsection (2)(b), the licence is cancelled.

S. 57B inserted by No. 108/2003 s. 30.

57B Restriction on the re-issue of cancelled licences

(1) This section applies if a licence is cancelled under this Act.

S. 57B(2) amended by No. 68/2016 s. 70(a).

(2) The Victorian Fisheries Authority must not re‑issue the licence unless—

S. 57B(2)(a) amended by No. 68/2016 s. 70(b).

(a) within 12 months after the date the licence was cancelled, the Minister, acting on the advice of the Victorian Fisheries Authority, determines under section 51A that it is to be publicly sold; and

(b) the successful party under the resulting sale process applies for the re-issue of the licence.

S. 57C inserted by No. 58/2005 s. 13.

57C Transitional provision concerning certain licences not held by one person

(a) on the date of commencement of section 13 of the Fisheries (Abalone) Act 2005 a Fish Receiver's Licence is not held by an individual, a single corporation or a co‑operative; and

(b) by the date the licence is due to expire, an individual, a single corporation or a co‑operative that holds the licence or that is a successor of a person who holds the licence, has not applied to the Secretary for the renewal of the licence in accordance with the regulations—

the licence is, by force of this section, suspended on the date the licence is due to expire.

(2) Despite anything in this Act to the contrary, a suspension under subsection (1) continues until either—

(a) an individual, a single corporation or a co‑operative that held the licence or that is a successor of a person who held the licence, immediately before it was suspended, applies to the Secretary for the renewal of the licence in accordance with the regulations and the Secretary renews the licence; or

(b) the expiry of 12 months from the date the suspension began—

(3) If the suspension of a licence ends under subsection (2)(b), the licence is cancelled.

S. 58 (Heading) inserted by No. 35/2009 s. 62(1), amended by No. 68/2016 s. 71(1).

S. 58 substituted by No. 5/1997

58 Powers of Victorian Fisheries Authority to cancel or suspend licences

S. 58(1) substituted by No. 35/2009 s. 62(2), amended by No. 68/2016 s. 71(2)(a).

(1) The Victorian Fisheries Authority may require the holder of a fishery licence to show sufficient cause why the licence should not be cancelled if—

S. 58(1)(a) amended by No. 68/2016 s. 71(2)(b).

(a) the Victorian Fisheries Authority considers that the holder of the licence—

(i) has ceased to be a fit and proper person to hold the licence; or

(ii) has ceased to satisfy any relevant eligibility criteria; or

(iii) has ceased to be actively, substantially and regularly engaged in the activities authorised by the licence; or

(b) the holder of the 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.

S. 58(2) substituted by No. 35/2009 s. 62(2), amended by No. 68/2016 s. 71(3)(a).

(2) The Victorian Fisheries Authority may require the holder of a fishery licence to show sufficient cause why the licence should not be suspended if—

S. 58(2)(a) amended by No. 68/2016 s. 71(3)(b).

(a) the Victorian Fisheries Authority considers that the holder of the licence has ceased to satisfy any relevant eligibility criteria; or

(b) the holder of the 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; or

(c) any other ground prescribed for the purposes of this subsection applies.

S. 58(3) amended by Nos 35/2009 s. 62(3), 68/2016 s. 71(4).

(3) The Victorian Fisheries Authority must make the requirement to show sufficient cause under subsection (1) or (2) 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.

S. 58(4) amended by No. 35/2009 s. 62(4).

(4) A copy of any notice served on the holder of a licence in accordance with subsection (3) must, within 7 days of being served, be sent to each holder of a registered financial interest in the licence.

S. 58(5) substituted by No. 35/2009 s. 62(5), amended by No. 68/2016 s. 71(5).

(5) If the holder of a licence fails to show sufficient cause as required under subsection (1) within the required time, the Victorian Fisheries Authority may cancel the licence.

S. 58(5A) inserted by No. 40/2019 s. 15.

(5A) If the Victorian Fisheries Authority has cancelled a fishery licence under subsection (5) on the ground that the holder of the fishery licence has ceased to be a fit and proper person to hold the fishery licence, the Victorian Fisheries Authority may specify a time not exceeding 7 years within which the same person may not apply for the issue or transfer of a fishery licence, or the issue of a permit, under this Act.

S. 58(6) inserted by No. 35/2009 s. 62(5), amended by No. 68/2016 s. 71(6).

(6) If the holder of a licence fails to show sufficient cause as required under subsection (2) within the required time, the Victorian Fisheries Authority may suspend the licence for the period that the Victorian Fisheries Authority determines.

S. 58(7) inserted by No. 35/2009 s. 62(5), amended by No. 68/2016 s. 71(7).

(7) The Victorian Fisheries Authority may cancel or suspend a licence under this section because of the commission of an offence of a type referred to in section 128(1) by the holder of the licence despite a court deciding not to suspend or cancel the licence under section 128 on convicting or finding the holder guilty of that offence.

S. 58(8) inserted by No. 35/2009 s. 62(5).

(8) Subsection (1)(a)(i) does not apply to the holder of a recreational fishery licence.

S. 58A (Heading) amended by No. 68/2016 s. 72(1).

S. 58A inserted by No. 35/2009 s. 63.

58A Licences or permits must be returned to Victorian Fisheries Authority

S. 58A(1) amended by No. 68/2016 s. 72(2).

(1) The holder of a licence or permit that has been cancelled or suspended under this Act must return the licence or permit to the Victorian Fisheries Authority within 14 days after the cancellation or suspension comes into effect.

1. 10 penalty units.

S. 58A(2) amended by Nos 64/2015 s. 3, 35/2019 s. 4.

(2) Subsection (1) does not apply to licences cancelled or suspended under section 57(7) or 57(10) or cancelled under Division 5 or 6 of Part 8.

S. 58A(3) amended by No. 68/2016 s. 72(3).

(3) The Victorian Fisheries Authority must, as soon as is practicable after receiving a licence or permit returned under subsection (1), issue the holder of the licence or permit with a notice stating the following things—

(a) the category and class of licence or permit and the name of the holder or former holder of the licence or permit;

(b) the status of the licence or permit;

(c) any rights of the holder of the licence under section 60.

S. 59 substituted by No. 5/1997

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.

S. 59(2) amended by No. 68/2016 s. 73(1).

(2) The person, and the holder of the licence, may register details of the financial interest with the Victorian Fisheries Authority in the form approved by the Victorian Fisheries Authority.

S. 59(3) substituted by No. 80/2000 s. 7(1), amended by No. 68/2016 s. 73(2).

(3) The Victorian Fisheries Authority 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.

S. 59(4) amended by No. 68/2016 s. 73(3).

(4) Each holder of a registered financial interest who receives the notice must, within 21 days of receiving the notice, advise the Victorian Fisheries Authority in writing of his or her approval or disapproval of the proposed transfer.

S. 59(5) amended by Nos 80/2000 s. 7(2), 68/2016 s. 73(3).

(5) If all the holders of registered financial interests in the licence notified under subsection (3) do not approve the proposed transfer, the Victorian Fisheries Authority must not transfer the licence or permanently transfer individual quota units, as the case may be.

(6) If the holder of a registered financial interest notified under subsection (3) does not comply with subsection (4), the holder is deemed to have approved of the proposed transfer.

S. 59A inserted by No. 58/2005 s. 5.

59A Registration of financial interests

(1) This section applies if a person who is not the holder of a particular individual abalone quota unit has a financial interest in that individual abalone quota unit.

(2) If immediately before the commencement of section 5 of the Fisheries (Abalone) Act 2005 a person is the holder of a registered financial interest in an Abalone Fishery Access Licence, the person is deemed to have a registered financial interest under this section in—

(a) the individual blacklip abalone quota units; and

(b) any individual greenlip abalone quota unit—

initially allocated to the holder of that Abalone Fishery Access Licence by the initial quota order.

S. 59A(3) amended by No. 68/2016 s. 74(1).

(3) The person to whom this section applies, and the holder of the individual blacklip abalone quota units or the holder of the individual greenlip abalone quota units, may register details of the financial interest with the Victorian Fisheries Authority in the form approved by the Victorian Fisheries Authority.

S. 59A(4) amended by No. 68/2016 s. 74(2).

(4) The Victorian Fisheries Authority must notify each holder of a registered financial interest of an application to transfer the individual blacklip abalone quota units or the individual greenlip abalone quota units within 21 days after receiving the application.

S. 59A(5) amended by No. 68/2016 s. 74(3).

(5) Each holder of a registered financial interest who receives the notice must, within 21 days of receiving the notice, advise the Victorian Fisheries Authority in writing of his or her approval or disapproval of the proposed transfer.

S. 59A(6) amended by No. 68/2016 s. 74(3).

(6) If all the holders of registered financial interests in the individual blacklip abalone quota units or the individual greenlip abalone quota units notified under subsection (4) do not approve the proposed transfer, the Victorian Fisheries Authority must not transfer the individual blacklip abalone quota units or the individual greenlip abalone quota units.

(7) If the holder of a registered financial interest notified under subsection (4) does not comply with subsection (5), the holder is deemed to have approved of the proposed transfer.

S. 60 (Heading) inserted by No. 35/2009 s. 64(1).

S. 60 substituted by No. 5/1997

60 Cancelled transferable licences may be transferred

S. 60(1) substituted by No. 35/2009 s. 64(2), amended by Nos 68/2016 s. 75(1), 40/2019 s. 39(1).

(1) This section applies to a licence that is transferable and that has been cancelled by a court, the Victorian Fisheries Authority or the Secretary except—

(a) a licence cancelled under section 57(7); or

S. 60(1)(b) amended by Nos 64/2015 s. 4(a), 68/2016 s. 75(2).

(b) a licence cancelled by the Secretary or the Victorian Fisheries Authority in accordance with a direction under section 61; or

S. 60(1)(c) inserted by No. 64/2015 s. 4(b), amended by No. 35/2019 s. 5(1).

(c) a licence cancelled under Division 5 of Part 8; or

S. 60(1)(d) inserted by No. 35/2019 s. 5(2).

(d) a licence surrendered or cancelled under Division 6 of Part 8.

S. 60(2) amended by No. 68/2016 s. 75(3).

(2) The Victorian Fisheries Authority 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) the holder of the licence or the registered financial interest transfers the licence to an eligible person in accordance with this 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).

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

(5) If subsection (3)(b) applies but subsection (4) does not apply, the cancellation of the licence by the court is revoked on the transfer of the licence to the eligible person.

S. 60(6) inserted by No. 35/2009 s. 64(3).

(6) If during the period of suspension of a licence under subsection (3), the term of that licence expires, the term of the licence is extended until the end of that period.

S. 60A inserted by No. 80/2000 s. 8.

S. 60A (Heading) inserted by No. 108/2003 s. 32(1).

60A Removal notice on cessation of aquaculture activities

S. 60A(1) substituted by No. 108/2003 s. 32(2).

(a) a person's authorisation to conduct aquaculture activities under an aquaculture licence or a general permit ceases; and

(b) the licence or permit related to an area that is Crown land.

S. 60A(2) amended by Nos 108/2003 s. 32(3), 68/2016 s. 76(1).

(2) The Victorian Fisheries Authority 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 or permit applied.

(3) A person who is served with a notice under subsection (2) must comply with the requirements of the notice.

1. 100 penalty units or 6 months imprisonment or both.

S. 60A(4) amended by No. 68/2016 s. 76(2).

(4) If a person has failed to comply with the requirements of the notice, the Victorian Fisheries Authority 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) seize and remove any commercial aquaculture equipment, fish, fishing bait or aquatic flora specified in the notice.

S. 60A(5) amended by No. 68/2016 s. 76(2).

(5) Any commercial aquaculture equipment, fish, fishing bait or aquatic flora seized under subsection (3) may be disposed of as the Victorian Fisheries Authority directs.

S. 60A(6) amended by No. 68/2016 s. 76(3).

(6) All reasonable costs and expenses incurred by the Victorian Fisheries Authority as a result of the failure of the person to comply with the notice may be recovered from that person by the Victorian Fisheries Authority.

S. 60A(7) amended by No. 68/2016 s. 76(4).

(7) If the whole or part of an amount payable under subsection (6) has not been paid to the Victorian Fisheries Authority as required or the proceeds from the sale of the seized things do not meet the Victorian Fisheries Authority's costs and expenses, the Victorian Fisheries Authority may recover the amount unpaid as a debt in a court of competent jurisdiction.

S. 60A(8) amended by No. 68/2016 s. 76(5).

(8) After the payment of the Victorian Fisheries Authority'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.

Division 3—Ministerial directions and quota notices concerning fisheries

S. 61 substituted by No. 5/1997

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;

S. 61(1)(c) amended by No. 68/2016 s. 77(1).

(c) requiring the Victorian Fisheries Authority 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.

S. 61(4) amended by No. 68/2016 s. 77(2).

(4) If a direction is to contain measures or conditions involving expenditure by the Crown other than expenditure within the relevant Department's or the Victorian Fisheries Authority's budget allocation, the Minister may only give the direction after obtaining the approval of the Treasurer.

S. 61(5) amended by No. 68/2016 s. 77(3).

(5) The Victorian Fisheries Authority must comply with any direction given under subsection (1)(c).

S. 61A inserted by No. 108/2003 s. 33.

61A Validation of direction published on 3 April 2003

(1) The direction given to the Secretary by the Minister under section 61(1)(c) and published in the Government Gazette on 3 April 2003 is deemed to have been validly given by the Minister.

(2) Every licence cancelled under that direction on or before 10 April 2003 is deemed to have been validly cancelled.

S. 62 substituted by No. 5/1997
s. 9, repealed by No. 35/2009 s. 32.

S. 63 (Heading) inserted by No. 68/2016 s. 78.

S. 63 substituted by No. 5/1997

63 Compensation arising from the cancellation of access licences under section 61

(1) This section applies if an access licence is cancelled as a result of a direction under section 61.

S. 63(2) substituted by No. 108/2003 s. 34(1).

(2) The person who held the licence is entitled to the following, as specified by, and determined in accordance with, the regulations—

(a) compensation for—

(i) the assessed market value of the licence; and

(ii) the assessed market value of the losses (if any) that would be incurred if the fishing boat and equipment used under the licence were to be sold; and

(b) compensation for the loss of up to 3 years of net income (based on past net income); and

(c) an amount by way of a solatium of up to 10% of the compensation assessed under paragraphs (a) and (b)—

less any amounts paid to the holders of registered financial interests in the licence under subsection (2A).

S. 63(2A) inserted by No. 108/2003 s. 34(1).

(2A) A person who held a registered financial interest in the licence at the time it was cancelled is entitled to an amount of compensation determined in accordance with the regulations.

S. 63(2B) inserted by No. 108/2003 s. 34(1).

(2B) The regulations may require the deduction from any amount payable under subsection (2) or (2A) of an amount to recognise the present value of any of the compensation that relates to the future.

(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.

S. 63(6) substituted by No. 108/2003 s. 34(2).

(6) Any dispute in relation to the payment of compensation under this section is to be determined in accordance with Part 11.

S. 63(7) inserted by No. 108/2003 s. 34(2).

(7) For the purposes of subsection (2)—

(a) the regulations may provide for the method by which a market value is to be assessed; and

(b) compensation may be paid up to the maximum amount permitted by subsection (2)(b) even if the licence was held by the person for less than the period in respect of which the compensation is being paid.

S. 64 substituted by Nos 5/1997
s. 9, 80/2000 s. 9.

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 individual quotas to each access licence issued in respect of the quota fishery;

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

(i) permanently; or

(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 subsection (1)(d)(i), the Minister may only amend that declaration or anything under subsection (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 subsection (1)(d)(i), the holders of access licences may also transfer individual quota units for a quota period only.

S. 64A

64A Further quota order

(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 subsection (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.

S. 64AB inserted by No. 17/2002 s. 7.

64AB Sub-zone orders

(a) declare that a quota fishery includes a sub‑zone; and

(b) set the portion of the total allowable catch for the quota fishery that applies in respect of a specified sub-zone; and

S. 64AB(1)(c) amended by No. 108/2003 s. 35(1)(a).

(c) determine the method for allocating that portion of the total allowable catch to the holders of access licences issued in respect of the quota fishery; and

S. 64AB(1)(d) inserted by No. 108/2003 s. 35(1)(b).

(d) declare that individual quota units in respect of a sub-zone may only be transferred to a licence holder holding a licence in respect of the same sub-zone;

(2) The Minister may revoke or amend an order under subsection (1) at any time by an order published in the Government Gazette.

S. 64AB(3) amended by No. 68/2016 s. 79.

(3) The Victorian Fisheries Authority must give the holder of an access licence in a quota fishery a sub-zone notice setting out details of the allocation of the portion of the total allowable catch in respect of the specified sub-zone that is applicable to the licence holder as soon as is practicable after a sub-zone order under this section is published.

S. 64B

64B General quota order provisions

S. 64B(1) amended by No. 17/2002 s. 8(a)(b), repealed by No. 35/2009 s. 33(1).

(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.

S. 64B(3) amended by No. 35/2009 s. 33(2).

(3) An order under section 64, 64A or 64AB 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.

S. 64C
inserted by No. 80/2000 s. 9, repealed by No. 80/2000 s. 22, new s. 64C inserted by No. 108/2003 s. 36, amended by No. 58/2005 s. 6.

64C No compensation payable for losses resulting from quota orders

No compensation is payable by the Crown to any person for any loss or damage that results from an order made by the Minister under section 64, 64A, 64AB, 66C, 66D or 66E.

S. 65 substituted by Nos 5/1997
s. 9, 80/2000 s. 9.

65 Quota notices

S. 65(1) amended by No. 68/2016 s. 80(1).

(1) The Victorian Fisheries Authority 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.

S. 65(2) amended by No. 68/2016 s. 80(2).

(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 Victorian Fisheries Authority 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.

S. 65(3) amended by No. 68/2016 s. 80(3).

(3) If the Victorian Fisheries Authority grants an application for a transfer under section 65A, the Victorian Fisheries Authority must issue new quota notices for each access licence involved in the transfer or acquisition.

S. 65(4) amended by No. 68/2016 s. 80(4).

(4) The Victorian Fisheries Authority 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 subsection (3) or (4) must state that fact.

S. 65A

65A Transfer of individual quota units

S. 65A(1) amended by No. 68/2016 s. 81(1).

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

S. 65A(2) amended by Nos 68/2016 s. 81(1), 35/2019 s. 8(3).

(2) The holder of an access licence in a quota fishery may apply to the Victorian Fisheries Authority for approval to transfer a fraction of, or one or more, individual quota units to the holder of any other access licence for that fishery.

S. 65A(2A) inserted by No. 108/2003 s. 35(2).

(2A) If the Minister has made an order under section 64AB(1)(d), subsection (2) is to be read as if for "for that fishery" there were substituted "for the relevant sub-zone of that fishery".

S. 65A(3) amended by No. 68/2016 s. 81(1), substituted by No. 40/2019 s. 16.

(3) An application for the approval of a transfer must be made in the manner and form required by the Victorian Fisheries Authority.

S. 65A(4) amended by No. 68/2016 s. 81(2).

(4) The Victorian Fisheries Authority may grant an application if it is consistent with every quota order and management plan that applies to the quota fishery.

S. 65A(5) amended by No. 68/2016 s. 81(2).

(5) The Victorian Fisheries Authority must refuse to grant an application that is inconsistent with any relevant provision of this Act.

S. 65B inserted by No. 108/2003 s. 37.

65B Minister may determine that quota units be publicly sold

(1) This section applies if it is proposed—

(a) to create and allocate new quota units in addition to the quota units that were created and allocated under an initial quota order; or

(b) to allocate quota units that arise in excess of any threshold quota limit specified in a management plan; or

(c) to allocate any quota units that have been forfeited, or that have otherwise become available.

(2) The Minister may determine that the quota units are to be publicly sold.

(5) Nothing in this section is intended to enable the sale of a quota unit to a person who is not the holder of a licence in the relevant fishery.

S. 66 substituted by No. 5/1997

66 Offences in relation to individual quota

S. 66(1) amended by No. 35/2019 s. 8(4).

(1) During any specified quota period, the holder of an access licence must not take any fish in excess of the permitted amount.

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

(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.

S. 66(2) amended by No. 108/2003 s. 38(1).

(2) For the purposes of subsection (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 together with any other amount of excess or carry over that the person is permitted to take under a relevant quota order.

(3) For the purposes of subsection (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.

S. 66(4) amended by No. 68/2016 s. 82(1).

(4) Individual quota units that are forfeited under subsection (1) may be allocated by the Victorian Fisheries Authority to one or more holders of access licences in the same specified zone in accordance with the regulations.

S. 66(5) repealed by No. 108/2003 s. 38(2).

(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 subsection (1), the balance of the forfeited number of quota units is forfeited in the next quota period.

(7) For the purposes of subsection (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 subsection (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 subsection (1); and

(b) the relevant forfeiture applies to the licence.

S. 66(10) amended by No. 68/2016 s. 82(2).

(10) The Victorian Fisheries Authority 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 subsection (10) must state that fact.

S. 66A inserted by No. 17/2002 s. 9.

66A Offences in relation to sub-zones

(1) During any specified quota period, the holder of an access licence must not take any fish in excess of the fish specified in the sub-zone notice given to the holder of the access licence.

Penalty:

(a) For a first offence, 50 penalty units.

(b) For a subsequent offence, 100 penalty units or 6 months imprisonment or both, and the forfeiture of the number of individual quota units equivalent to the quantity of excess fish taken.

(2) If a person who is acting on behalf of the holder of an access licence takes any fish in excess of the fish specified in the sub-zone notice given to the holder of the licence—

(a) the person is liable to the relevant fines specified in subsection (1); and

(b) the relevant forfeiture applies to the licence.

Pt 4 Div. 3A (Heading and ss 66B–66R) inserted by No. 58/2005 s. 7.

Division 3A—Abalone quota

S. 66B inserted by No. 58/2005 s. 7.

66B Existing quota orders

Any quota order or quota notice in respect of the abalone fishery in existence immediately before the commencement of section 7 of the Fisheries (Abalone) Act 2005 continues in operation until the beginning of the quota period established by the initial abalone quota order made under section 66C.

S. 66C inserted by No. 58/2005 s. 7.

66C Initial abalone 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 the abalone 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) set the number of individual blacklip abalone quota units and individual greenlip abalone quota units to be initially allocated for each Abalone Fishery Access Licence held by the holder of an Abalone Fishery Access Licence in respect of the quota fishery;

(d) set the minimum number of individual blacklip abalone quota units that must be held in respect of each Abalone Fishery Access Licence held by the holder of an Abalone Fishery Access Licence;

(e) determine the circumstances, if any, in which the individual quotas can be exceeded or carried over.

(2) The Minister may revoke or amend an order at any time by order published in the Government Gazette.

(3) The Minister may only amend an order if the amendment is required—

(a) to give effect to the management plan for the abalone 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.

S. 66D inserted by No. 58/2005 s. 7.

66D Further abalone quota order

(a) set the total allowable catch for blacklip abalone and greenlip abalone (by number, volume, weight or value) for a specified period for the abalone quota fishery;

(b) determine the quantity of fish (by number, volume, weight or value) comprising an individual blacklip abalone quota unit and an individual greenlip abalone quota unit in the abalone 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 limiting the generality of subsection (2), the Minister may reduce the total allowable catch, or reduce the quantity of fish comprising an individual abalone quota unit before the end of the period to which the total allowable catch or individual abalone quota unit applies.

S. 66E inserted by No. 58/2005 s. 7.

66E Sub-zone abalone orders

(a) declare that the abalone quota fishery includes a sub-zone; and

(b) set the portion of the total allowable catch that applies in respect of a specified sub-zone; and

(c) determine the method for allocating that portion of the total allowable catch.

(2) The Minister may revoke or amend an order under subsection (1) at any time by an order published in the Government Gazette.

S. 66E(3) amended by No. 68/2016 s. 83.

(3) The Victorian Fisheries Authority must give the holder of an Abalone Fishery Access Licence in the abalone quota fishery a sub-zone notice setting out details of the allocation of the portion of the total allowable catch in respect of the specified sub-zone that is applicable to the holder of the Abalone Fishery Access Licence as soon as is practicable after a sub-zone order under this section is published.

S. 66F (Heading) substituted by No. 35/2009 s. 34(1).

S. 66F inserted by No. 58/2005 s. 7.

66F When abalone quota order takes effect

S. 66F(1) repealed by No. 35/2009 s. 34(2).

S. 66F(2) amended by No. 35/2009 s. 34(3).

(2) An order under section 66C, 66D or 66E has effect from the date it is published in the Government Gazette, or from any later date specified in the order as the date from which it is to have effect.

S. 66G inserted by No. 58/2005 s. 7, amended by No. 68/2016 s. 84.

66G Abalone Fishery Access Licence specification

The Victorian Fisheries Authority must specify on each Abalone Fishery Access Licence details of the individual abalone quota units in respect of which the holder of the Abalone Fishery Access Licence is entitled to take abalone—

(a) when the Abalone Fishery Access Licence is renewed or transferred;

(b) after there is a change in the number of the individual abalone quota units in respect of which the holder of the Abalone Fishery Access Licence is entitled to take abalone.

S. 66H inserted by No. 58/2005 s. 7.

66H Abalone quota unit holding statement

S. 66H(1) amended by No. 68/2016 s. 85(1).

(1) The Victorian Fisheries Authority must issue an abalone quota unit holding statement in respect of the period specified in the further abalone quota order containing the prescribed information to a holder of an individual abalone quota unit—

(a) after the payment of any royalty and levy payable in respect of the individual abalone quota unit; and

(b) after there is a change in the number of the individual abalone quota units held by that holder.

S. 66H(2) amended by No. 68/2016 s. 85(2).

(2) A holder of an individual abalone quota unit may obtain a copy of the relevant abalone quota unit holding statement from the Victorian Fisheries Authority upon application to the Victorian Fisheries Authority and payment of the prescribed fee.

S. 66I inserted by No. 58/2005 s. 7.

66I Entitlement of holder of an individual abalone quota unit

The holder of an individual abalone quota unit is not entitled to take or be in possession of a commercial quantity of abalone unless that person is otherwise authorised under this Act to take or be in possession of a commercial quantity of abalone.

S. 66J inserted by No. 58/2005 s. 7.