Fisheries Act 1995

The Act has broad reach. Primary regulated persons are commercial fishers, who require access licences (s.38) to take fish for sale (s.36) and fish receiver licences (s.41) to receive or sell priority species (s.40). Aquaculture operators need licences under s.43 to hatch, rear, or stock fish (s.42). Recreational fishers must hold recreational fishery licences where required (s.45), though children under 18 are often exempt (s.47). Charter boat operators and those using boats for recreational fishing are affected by equipment and area rules.

Indigenous groups benefit from traditional owner agreements under the Traditional Owner Settlement Act 2010 (s.11AA), exempting certain agreed activities from offences (except ss.53, 68B, 76, 84, 139). Conservation groups and the general public are affected by management plans (Part 3), fisheries reserves (s.88), and protected species declarations (s.69).

Public authorities must consider management plans (s.34) and can be consulted in their preparation (s.3A). The Victorian Fisheries Authority (VFA), its chief executive officer, authorised officers (defined in s.4(1)), and the Fisheries Advisory Council (Part 6) are key administrators. The Minister issues directions (s.61), quota orders (s.64), and fisheries notices (s.152).

Buyers, processors, and sellers of fish are regulated via fish receiver licences (s.41) and offences for receiving/selling without authorisation (s.40) or selling fish taken illegally (s.116). Boat owners and equipment suppliers face rules on foreign boats (ss.117-118), vessel monitoring (s.4(1)), and commercial fishing equipment definitions (s.4(1)).

Landowners with water authority property or private waters are affected by s.50A (licences do not confer entry rights) and inland waters definitions (s.4(1)). Developers and researchers need permits for activities in reserves or with protected species (ss.49, 71, 81).

Transitional provisions (Parts 9-10A) affect holders of pre-1995 licences, with conversions under s.155A and specific schemes for abalone (s.155B), scallops (s.153A-B), Gippsland Lakes (ss.153M-T), and national parks adjustments (Part 10). Corporations, co-operatives, and individuals face distinct rules (s.51(3A)-(3D)), with "fit and proper person" tests recurring (e.g. ss.39(2), 49(5), 51(4)).

Enforcement impacts authorised officers, police (ss.101B-101I), and courts (Part 7), while secrecy provisions (s.146) bind all involved. Overall, the Act affects a wide spectrum from individual recreational anglers to multinational seafood companies, government agencies, traditional owners, scientists, and the public as ecosystem beneficiaries.

Duties are imposed on licence/permit holders, fishers, and authorities. Holders must comply with licence conditions (s.53), return cancelled/suspended licences (s.58A), notify quota holdings (s.66J for abalone), and keep records for three years (s.120B). Commercial fishers cannot take fish for sale without an access licence (s.36(1)), use prohibited equipment (s.37), or exceed quotas (s.66). Recreational fishers must produce licences on demand (s.44(3)). Aquaculture operators must prevent escapes and manage disease (implied in s.42 and management plans).

The VFA and Secretary have duties to issue licences only to fit and proper persons satisfying eligibility criteria (s.51(4)), consult under s.3A principles (where practicable), prepare management plans (s.28), and report (e.g. annual fisheries reports under s.196). Authorised officers must follow search protocols (s.103A announcement before entry, s.101H records of searches). Public authorities must regard management plans (s.34).

Rights include access to fisheries for licensed activities (s.10 property passes on lawful taking), review of reviewable decisions by VCAT (s.136, listing in s.137), and compensation in limited cases (e.g. ss.63, 153I, 153S for cancellations; Part 10 for national parks). Traditional owners have exemption rights under agreements (s.11AA). Licence holders can transfer eligible licences (s.56), renew where permitted (s.57), and register financial interests (s.59). Quota holders can transfer units (ss.65A, 66K) and receive holding statements (s.66H).

Fishers have rights to procedural fairness in licensing decisions (implied in review rights and s.3A consultation) and to natural justice in enforcement (e.g. s.103B details of warrant). The Act facilitates non-consumptive uses (s.3(d)) and research (s.140). Stakeholders can participate in management plans (s.32) and advise via the Fisheries Advisory Council (s.91).

Duties on the Minister include tabling joint authority reports (s.18), having regard to annual fisheries reports (s.198), and consulting before declaring reserves (s.88(3)). The Crown retains ownership of wild fish (s.10) but grants rights via licences. Extraterritorial operation (s.11B) extends duties/rights where there is a real and substantial link to Victoria.

Penalties are graduated. Summary offences carry fines up to 200 penalty units or 12 months imprisonment (e.g. unlicensed commercial fishing involving priority species: s.36(1)). Indictable offences like trafficking commercial quantities of priority species attract up to 10 years (s.111A). Additional penalties apply to licence holders (s.128: suspension/cancellation for breaches of designated conditions or specified sections), corporations (s.129), and agents (s.128A). Forfeiture of quota units (s.66(1)), equipment, or catch is common (s.106).

Enforcement powers are robust. Authorised officers (including VFA staff and police: s.4(1)) may enter premises (s.102), search without warrant in certain cases (s.103), seize items (s.105), arrest (ss.101B-101F), and require names/addresses (s.109). Special rules apply to priority species searches (s.101G) with records and reporting (ss.101H-101I). Hot pursuit extends beyond Victorian waters (s.110). Controlled operations allow undercover activities with immunity (Part 7A, ss.131L-131O).

Evidentiary provisions simplify proof: certificates of authorised officers are prima facie evidence (ss.123-124A, 126-126B); possession presumptions apply (ss.7B, 122(3)); and reverse onus in some cases (e.g. s.11(2) for out-of-state fish). Proceedings must commence within 18 months (or longer for prescribed offences: s.127). The VFA can cancel/suspend licences (s.58), with VCAT review for reviewable decisions (s.136-137).

Court orders include prohibitions on fishing/boats (ss.130-130B), actions for restoration (s.129A), and compensation for damage (ss.113(2), 128(2)). Automatic forfeiture for prohibited equipment or illegally taken fish (s.106(1)-(1A)), with condemnation orders (s.106AE). Disposal notices (s.106AB) and retention notices (s.108A) streamline handling of seized items.

Recent enforcement enhancements include abalone-specific packaging offences (ss.118A-118B) and expanded associated offences (s.98, including Crimes Act 1958 (Vic) provisions). Penalties for false statements (s.119A: level 7 imprisonment) and quota breaches (s.66M: up to 200 penalty units or 12 months plus forfeiture) are severe. The Act's "fit and proper person" test (recurring in ss.39(2), 49(5), 51(4), 66K(4)) allows disqualification (e.g. s.49(9), s.58(5A)).

The Act is designed to integrate with Commonwealth and state legislation. Part 2 facilitates arrangements under the Fisheries Management Act 1991 (Cth), applying state law to jointly managed fisheries (s.20) while excluding foreign boats in proclaimed waters. The Offshore Constitutional Settlement is referenced in s.8(2). Licences and quotas are declared not personal property under the Personal Property Securities Act 2009 (Cth) (s.11C).

At state level, it interacts with the National Parks Act 1975 (Vic): licences do not authorise activities in national parks except for pre-existing entitlements (ss.38(1A), 43(1AA), 49(2A)). Transitional compensation for marine parks is in Part 10. The Traditional Owner Settlement Act 2010 (Vic) provides exemptions for agreed activities (s.11AA), excluding certain offences. The Conservation, Forests and Lands Act 1987 (Vic) appoints authorised officers (s.4(1)).

Management plans must be consistent with regulations and notices (s.35). The Victorian Fisheries Authority Act 2016 (Vic) establishes the VFA, transferring functions (Part 10A). Water authorities are protected: licences confer no entry rights to their property (s.50A). The Flora and Fauna Guarantee Act 1988 (Vic) interacts with protected aquatic biota declarations (s.69(2)-(3)).

Enforcement overlaps with the Crimes Act 1958 (Vic) via associated offences (s.98: conspiracy, incitement, trafficking, etc.) and Bail Act 1977 (Vic) (s.98(1)(d)). The Catchment and Land Protection Act 1994 (Vic) is referenced in noxious species permit refusals (s.81(3)(b)). Local government and planning laws interact via fisheries reserves on Crown land (s.88) and public authority duties (s.34).

The Act prevails over inconsistent subordinate instruments in some cases (s.68), but fisheries notices prevail over regulations, plans, and licences where inconsistent (s.152(3)). Transitional provisions (Parts 9-10A) reconcile with prior law, national parks changes, and VFA creation. No general compensation for regulatory impacts (s.143), but specific schemes exist. The Interpretation of Legislation Act 1984 (Vic) applies to notices and regulations (ss.70(2), 152(6)).

The Act has been heavily amended since 1995, reflecting evolving pressures: stock declines, industry restructuring, enforcement challenges, and alignment with national standards. Key recent changes include:

• 2019 amendments (via Marine and Fisheries Legislation Amendment Act 2019 and Primary Industries Legislation Amendment Act 2019): introduced maximum size limits (s.4(1)), expanded general permit powers (s.49(2)(k)), strengthened abalone packaging offences (ss.118A-B), added forfeiture for unfit persons (ss.49(9), 58(5A), 82(3)), and created specific cancellation schemes for Gippsland Lakes licences (ss.153M-T, Schedule 5). These addressed illegal abalone trade, bycatch, and overcapacity in inland fisheries. Why: declining stocks and compliance issues in the Gippsland Lakes fishery necessitated buyouts and net bans.

• 2016 VFA establishment (via Victorian Fisheries Authority Act 2016, Part 10A): transferred licensing, enforcement, and advisory functions from the Secretary to the VFA (ss.198B-198ZD). The Fisheries Advisory Council replaced earlier bodies (Part 6). Why: to create an independent, industry-focused regulator, improving efficiency and stakeholder trust post-2011 co-management reforms.

• 2013 advisory council (Fisheries Amendment Act 2013): established the Fisheries Advisory Council (ss.90-97B) to advise on strategic management, replacing the Co-Management Council. Why: simplify governance and focus on high-level strategy amid overlapping advisory structures.

• 2011 enforcement enhancements (Fisheries Amendment Act 2011): added court orders for restoration (s.129A) and recreational fishing prohibitions (s.130AA), expanded search powers, and updated evidentiary rules. Why: address environmental damage from offences and improve recreational compliance.

• 2004-2005 quota and enforcement reforms: introduced abalone-specific quota (Division 3A, ss.66B-66R), controlled operations (Part 7A), and expanded associated offences (s.98). Why: combat illegal abalone trafficking (a high-value black market) and align with national undercover investigation standards.

• 2003 national parks adjustments (National Parks (Marine National Parks and Marine Sanctuaries) Act 2002, Part 10): provided compensation for affected licence holders (reduced catch/increased costs entitlements: ss.167-171). Why: implement marine protected areas while mitigating industry impacts.

These changes respond to sustainability crises (e.g. abalone overfishing), enforcement gaps (illegal trade), governance inefficiencies (multiple councils), and policy shifts (marine parks, climate adaptation via harvest strategies in s.28(7)(cb)). The 2025 version (No. 104) incorporates 30+ amending Acts, expanding from 154 sections in 1995 to over 200 today, with added complexity in quotas, transitions, and penalties.

Grounded in the text, key controversies arise from licensing decisions, quota allocations, enforcement powers, and compensation. VCAT frequently reviews reviewable decisions under s.137 (e.g. refusals to issue/renew/transfer licences under ss.51, 56, 57; variations under s.54; cancellations under s.58). The Commercial Fisheries Licensing Panel's recommendations (s.51(3)) are non-binding but influential; challenges often allege failure to consider them or improper "fit and proper person" assessments (ss.39(2), 51(4)(c)).

Quota disputes feature prominently. Challenges to quota orders (ss.64, 66C) or sub-zone allocations (s.64AB) argue inconsistency with management plans (s.28) or lack of compensation (s.64C explicitly bars compensation for quota losses). Abalone quota forfeiture (s.66R) and minimum holding requirements (s.66O) have generated litigation on procedural fairness and proportionality. Cases under s.66 (quota offences) often contest "permitted amount" calculations (s.66(2)) or carry-over provisions.

Enforcement controversies centre on search/seizure powers. Section 102 entry/inspection and s.103 warrants have been challenged for insufficient particularity or failure to announce (s.103A). Priority species searches (s.101G) raise privacy issues, with s.101H records and s.101I annual reporting intended to ensure accountability. Controlled operations (Part 7A) limit challenges via immunity (s.131L) and defect rules (s.131M), but unauthorised disclosure offences (s.131Q) are strict.

Compensation schemes provoke disputes. Part 10 national parks entitlements (reduced catch/increased costs: ss.167-171) led to Panel and Tribunal reviews (ss.172-183), with principles in s.211 requiring regard to actual circumstances rather than rigid formulas. Licence cancellation compensation (ss.63, 153I, 153S) is limited; challenges argue inadequate valuation (e.g. market value plus solatium under s.63(2)). The "no compensation" rule (s.143) for general regulatory impacts has been upheld, but specific cancellations (e.g. scallops in 1996, Gippsland Lakes in 2019) generated political and legal controversy over fairness and economic loss.

Broader controversies include the Act's interaction with indigenous rights (s.11AA exemptions limited to non-specified offences) and marine protected areas (Part 10 transitions). Court challenges to fisheries notices (s.152) or management plans (Part 3) often allege inadequate consultation (s.3A, s.32) or inconsistency with objectives (s.3). The VFA's expanded role post-2016 (Part 10A) has been tested in licensing reviews, with arguments over delegation limits (s.131X) and "fit and proper" discretion.

Notable patterns: courts emphasise statutory text (e.g. strict liability in many offences, presumptions in s.122), but apply natural justice in licensing (s.54(3) notice before variation). Controversies often stem from economic impacts on small operators versus sustainability imperatives, with quota systems (post-1997/2005 amendments) central to ongoing disputes. The Act's complexity—layered subordinate instruments, transitional overlays—has itself been criticised for creating compliance burdens and enforcement inconsistencies.

Most practitioners miss several nuances that can prove costly. First, the expanded definition of "possession" in s.7B: fish or equipment on occupied land or under control is presumed possessed unless the court is satisfied otherwise. This reverses onus and catches unwary processors or transporters. Second, "commercial quantity" for priority species (s.4(1), prescribed by regulation) triggers indictable offences (ss.111A-111C) with up to 10-year sentences; the threshold is low for high-value species like abalone, and "traffick" is broadly defined (s.111A(3)).

Third, licence conditions are not always displayed (s.52(2)-(3)), but ignorance is no excuse—breach attracts 100 penalty units or 6 months (s.53). Designated licence conditions (s.4(1)) trigger higher penalties and potential cancellation (s.128). Fourth, abalone-specific rules are a minefield: packaging must be labelled (s.118A), disturbance prohibited (s.118B), and holders must maintain minimum blacklip quota units or face suspension (s.66O). Additional penalties for abalone offences (s.66P) can include quota forfeiture.

Fifth, "associated offences" under s.98 expand enforcement: Crimes Act 1958 (Vic) provisions on conspiracy, incitement, accessorial liability, and even bail breaches apply, with evidentiary presumptions (s.98(3)). This catches corporate officers and financiers. Sixth, transitional provisions are not merely historical—Part 10A deems certain pre-VFA actions valid and converts references, but failures in transitional licensing (e.g. s.198D access licences) can invalidate subsequent actions.

Seventh, no compensation for quota reductions (s.64C) or general regulatory changes (s.143), but specific cancellations trigger limited payments (ss.63, 153S). Practitioners often overclaim, triggering costs orders under s.212. Eighth, vessel monitoring systems (s.4(1)) are mandatory for some licences; non-compliance risks suspension. Finally, the "fit and proper person" test is discretionary and broad (ss.51(4)(c), 66K(4)), with 7-year bans possible for cancellations on this ground (ss.49(9), 58(5A)). Always check the current version number (104 as at October 2025) and cross-reference regulations/notices, as they prevail in inconsistencies (s.152(3)).

These gotchas justify specialist advice: a single misstep in quota trading, record-keeping (s.120B: 3 years), or search response can escalate from infringement to licence loss or imprisonment.

Compliance begins with understanding your activity's classification. Determine if you are commercial (sale involved: s.36), recreational (s.44), or aquaculture (s.42). Commercial operators must hold the correct access licence (s.38) or fish receiver licence (s.41); check eligibility (s.51(4): fit and proper, criteria met, consistent with plans/orders). Apply via approved form with fees and supporting material (s.148(2)); expect VFA scrutiny and possible Panel advice (s.51(3)).

For quotas, monitor individual units via holding statements (s.66H for abalone; s.65 for others). Do not exceed permitted amounts (s.66(1)), notify transfers (s.66J), and maintain minimums (s.66O). Use only authorised equipment (ss.36-37, 42) and comply with size/catch limits (s.68A), closed seasons (s.67), and area restrictions (s.68B, fisheries notices). Record-keeping is mandatory: create sale documents (s.120AA), retain for 3 years (s.120B), ensure legibility in English (s.120C). For aquaculture, adhere to habitat and stocking rules (s.43), with removal notices on cessation (s.60A).

Recreational fishers: obtain licences where required (s.45), respect bag/size limits (s.68A), and avoid commercial equipment (s.4(1)). Produce licences on demand (s.44(3)); non-compliance risks 5 penalty units. Indigenous fishers: ensure activities fall within traditional owner agreements (s.11AA) to claim exemptions.

All operators: obtain permits for protected/noxious species (ss.71-72, 81), avoid interference (s.113, 115), and do not sell illegally taken fish (s.116). Comply with vessel monitoring if required (s.4(1)). For businesses, register financial interests (s.59), ensure agents are fit and proper (s.39(2)), and maintain insurance/securities where mandated.

Monitor subordinate instruments: check fisheries notices (s.152, published on VFA website), quota orders (s.64, Government Gazette), management plans (Part 3), and Ministerial directions (s.61). Use VFA's online resources for current conditions. Keep records accessible for authorised officer inspections (s.102); cooperate to avoid obstruction offences (s.111).

For changes: notify VFA of alterations (s.54), apply for variations/transfers promptly (ss.54, 56), and renew before expiry (s.57; automatic continuation if applied timely: s.57(1A)). If facing cancellation/suspension (s.58), respond to show-cause notices within time limits. Register for updates via VFA's representative body notifications (s.145A).

Seek legal advice for complex matters (e.g. quota trades, compensation claims under s.63 or Part 10). Use VCAT for reviewable decisions within 28 days (s.136). Maintain "fit and proper" standards: avoid offences, pay royalties/levies (ss.150-151A), and engage in consultation processes (s.3A). For aquaculture on Crown land, comply with removal notices (s.60A) to avoid cost recovery (up to 100 penalty units or 6 months: s.60A(3)).

Regular audits, staff training on conditions, and subscription to VFA alerts minimise risk. Non-compliance can cascade: a single quota breach triggers forfeiture (s.66(1)), potential cancellation (s.128), and reputational damage affecting future applications. Proactive engagement with the Fisheries Advisory Council (s.91) and adherence to plans (s.28) demonstrate good faith, assisting in discretionary decisions. Compliance is not merely reactive but requires ongoing vigilance given the Act's adaptive, notice-driven nature.